Wednesday, January 30, 2013

Hello Kitty Shrine Enjoined

It has been a long time since sculptures of natural people have been
displayed to commemorate them and invite sightseers to Japan. Ryoma Sakamoto's sculpture in Kochi and Takamori Saigo's sculpture in Ueno park are a couple of famous examples. Recently, Japanese people started to display sculptures of non-human characters like characters in animation films and mangas (cartoons).  Some of the examples are the sculptures of Kankichi Ryotsu (the main character of Kochira Katsushika-ku Kameari Koen Mae Hashutsujo) in Kameari, Kitaro (the main character of GeGeGe no Kitaro) in Tottori (Shigeru Mizuki road), and Sazae-san (the main character of Sazae-san) in Setagaya.  Most of them are displayed lawfully by obtaining a license from the rights holder. 

However, the Hello Kitty Shrine newly constructed on January 27, 2013 was different. Hello Kitty is one of the most famous Japanese characters. The cute cat of a Japanese company called "Sanrio" appears not only all over Japan but also around the world.  A shopping street in Yamanashi (where the founder of Sanrio is from) made a shrine with Hello Kitty as the goddess by displaying a sculpture of Hello Kitty in the shrine. At that time, the shopping street failed to obtain a license from Sanrio. Sanrio noticed it soon after its construction and asked for it to be ceased, resulting in the enjoyment of the public display of the shrine because of a possible copyright infringement. Now, the sculpture has been removed from the shrine.

In the U.S., there is 17 USC Article109(c) which
stipulates,"[n]otwithstanding the provisions of section 106 (5) [copyright owner's exclusive right of display], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more  than one image at a time, to viewers present at the place where the copy is located." This means that in the U.S. as long as the Kitty sculpture is made lawfully, the owner is entitled to display the sculpture publicly without the permission of the rights holder (Sanrio).

It is not known whether the Kitty sculpture for the shrine was made
lawfully or not. However, in any case, in Japan, the display (even by the owner of the sculpture) at a shrine in an open place accessible to the public is likely to be an infringement of copyright absent a license from the copyright owner. Japanese Copyright Law actually provides similar limitations of author's (or rights holder's) exclusive right to display in Article 45(1). (So, if you buy a painting, you can display it in a museum.) However, Article 45(2) further states that such limitation does not apply to displays in open places accessible to the public. 

One of the reasons is that sculptures displayed outside in public can be subject to further limitation of exclusive rights under Article 46 (which is something like public sculpture provisions in Australian Copyright act Article 65 and some other similar provisions in some countries).

Without general fair use provision, it would be difficult for the shopping
street to justify the display of the sculpture in an open shrine accessible to the public. (It may be argued that the sculpture is "inside" the building of shrine, but as the sculpture can be easily seen from outside, the sculpture is likely to be regarded at least "at places easily seen by the public".) 

This may be another interesting difference between American and Japanese copyright law.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

No comments:

Post a Comment