Do Mass-Produced Industrial Products Have Copyright? Explaining the Relationship with the Japanese Design Law

The idea that art is protected by copyright is easy to imagine. However, the term “art” encompasses a wide range and takes on various forms.

The term “art” is classified into two categories. One is “fine art,” which is created for the purpose of appreciation, such as paintings, prints, and sculptures. The other is “applied art,” which applies art to practical items.

However, it is not easy to clearly distinguish between the two. For example, “artistic crafts” are included in both fine art and applied art.

Artistic crafts are works of art that emphasize aesthetic value while also having practicality, with examples including Buddhist statues and jewelry. These artistic crafts are protected by copyright law under Article 2, Paragraph 2 of the Japanese Copyright Law (著作権法第2条2項), which states:

“Artistic works” in this law include artistic crafts.

Therefore, determining the originality of “art” is quite challenging.

There are cases where it becomes a legal issue whether copyright arises for applied art such as industrial products other than artistic crafts. Here, we will explain how applied art is considered under the Japanese Copyright Law.

Court Cases Involving Applied Arts

In Japan, traditionally, only fine arts that are objects of appreciation have been recognized as having copyright. The idea has been that applied arts, such as industrial products, only have copyright if they are explicitly recognized as “artistic crafts” under the Japanese Copyright Law.

It has been thought that the design of industrial products, which are not independent objects of appreciation, do not meet the requirement of “belonging to the field of literature, academia, art, or music”.

Behind this is the belief that industrial designs should be protected by the Japanese Design Law, and that the very long 70-year protection under the Copyright Law is not appropriate.

The duration of the Design Law was extended from the traditional 20 years to 25 years for design registration applications made after April 1, 2020 (Gregorian calendar year), but it is still significantly shorter compared to the protection provided by the Copyright Law.

Furthermore, there has been a strong view that if the overlapping application of the Copyright Law and the Design Law is relaxed, the existence of the Design Law could become meaningless.

The Red Dragonfly Case

In a lawsuit where the copyright of applied art was disputed, there was a case known as the “Red Dragonfly Case”. In this case, the plaintiff company produced and sold a large number of colored bisque dolls titled “Red Dragonfly”, which were Hakata dolls. The defendant company was accused of infringing copyright by creating replicas of these dolls using plaster molds and selling them. The plaintiff company sought a provisional injunction to stop the reproduction and sale of these dolls.

The defendant company argued that the doll in question was not a work of art because it was created for the purpose of being mass-produced and used industrially.

However, the court ruled that the “Red Dragonfly” doll, which expresses the image received from the nursery rhyme of the same title as a figurine, can be recognized as a creative expression of emotion from its figure, facial expression, clothing pattern, and color. The court acknowledged that it possesses artistic value as a work of art and craft, and is therefore protected under the Japanese Copyright Law.

Let’s take a look at the summary of the judgment below.

There is no reason to deny the copyright of a work of art simply because it was created for the purpose of being mass-produced and used industrially. Furthermore, even if the doll in question could be registered as a design under the Japanese Design Law, the boundaries between design and artistic works are a subtle issue. It should be interpreted that the overlapping existence of both can be recognized. Therefore, it cannot be excluded from the protection of the Japanese Copyright Law simply because it could be registered as a design. Therefore, the doll in question should be protected as a work of art and craft under the Japanese Copyright Law.

Nagasaki District Court Sasebo Branch, February 7, 1973 (1973) decision

The judgment is that the copyright cannot be denied simply because it was created for the purpose of being mass-produced and used industrially, and if applied art is a work of art and craft, it can be recognized as a work of art.

On the other hand, there are cases where copyright was not recognized. One such case is the “Knee Chair Case”, where the plaintiff, a world-renowned craft designer, sought to prohibit the manufacture and sale of a copy of a chair (Knee Chair) he designed, which the defendant imported from Taiwan, on the grounds of violation of the Japanese Copyright Law.

Under the Japanese Copyright Law, “art” generally refers only to fine art that is solely for appreciation. Applied arts that also serves a practical purpose, may not be protected under the Japanese Copyright Law unless it is a work of art and craft that is specifically included in the works of art under Article 2, Paragraph 2 of the same law.

Osaka High Court, February 14, 1990 (1990) decision

The plaintiff appealed to the Supreme Court, but the appeal was dismissed.

As these examples clearly show, in traditional lawsuits, whether it qualifies as a one-off work of art and craft, or whether it can be equated with pure art to the extent that it is an object of aesthetic appreciation, has been used as a criterion for copyright judgment. It can be said that a high hurdle was set for applied art to be recognized as a work of art.

First Trial of the TRIPP TRAPP Case

The plaintiff company, which holds the rights to the TRIPP TRAPP toddler chair, has claimed that the form of the chair manufactured and sold by the defendant company closely resembles that of TRIPP TRAPP, infringing on the copyright (reproduction rights or adaptation rights) of the product.

The Tokyo District Court, in its first instance, stated that in order to protect applied arts under the Copyright Law,

From the perspective of achieving a proper balance between protection under the Copyright Law and the Design Law, it is necessary to have aesthetic creativity that can become an object of aesthetic appreciation when viewed apart from practical functionality.

Tokyo District Court, April 17, 2014 (Heisei 26) Judgment

Following the trend of previous court precedents, the court examined the case according to this standard and denied the copyrightability of TRIPP TRAPP. From the standpoint of achieving a proper balance between protection under the Copyright Law and the Design Law, the criterion for judgment was whether or not it has aesthetic creativity that can become an object of aesthetic appreciation when viewed apart from practical functionality.

In response to this, the plaintiff appealed, but a different standard was presented in the appeal trial.

TRIPP TRAPP Case Appeal

In the appeal, the Intellectual Property High Court interpreted Article 2, Paragraph 2 of the Japanese Copyright Law, which states, “The term ‘works of art’ in this law includes works of art and crafts,” as follows:

Article 2, Paragraph 2 of the law is merely an illustrative provision of ‘works of art,’ and even applied arts that do not fall under the ‘works of art and crafts’ mentioned in the illustration should be considered ‘works of art’ protected under the law if they meet the requirements of a work as defined in Article 2, Paragraph 1, Item 1.

Intellectual Property High Court, April 14, 2015 (2015) Judgment

The court ruled that the term ‘works of art and crafts’ in the Copyright Law is just one example, and Article 2, Paragraph 2 of the Copyright Law does not exclude applied arts other than works of art and crafts. Furthermore, it is not appropriate to set a standard for judging the high creativity of applied arts, and it should be examined whether or not the requirements of Article 2, Paragraph 1 of the Copyright Law are met on a case-by-case basis.

In response to the defendant’s argument that applied arts should be protected under the Design Law, the court stated:

The Copyright Law and the Design Law have different purposes and objectives (Article 1 of the Copyright Law, Article 1 of the Design Law), and it is difficult to find a rational basis for interpreting that one law should be applied exclusively or preferentially, making the application of the other law impossible or inferior. … There is no rational reason to strictly differentiate applid arts from a work provided under Copyright Act just because applied arts can be protected by the Design Law.

Same as above

The court ruled that both laws can be applied concurrently to a certain range of objects. The court took a stance that recognizes the copyright of applied arts more leniently than the conventional standard, stating that if the creator’s personality is expressed in any way in the expression of applied arts, it has creativity.

Upon examining the copyright of TRIPP TRAPP, the court affirmed its copyright, stating that the formative features of the chair, such as the two legs of the “pair of members A” in the infant high chair with four legs, the angle formed by this and “member B” being about 66 degrees, which is smaller than similar products, and the fact that member A is connected only by the cut end face diagonally in front of member B and directly touches the floor, cannot be said to be inevitably led by the constraints related to the function of the infant chair without any choice, and that the creator’s personality is expressed and it is a creative expression, so TRIPP TRAPP falls under “works of art”.

However, the court did not recognize copyright infringement because it concluded that the products of both companies were not similar.

Summary

The boundary between applied arts and fine crafts is ambiguous, and there has been an increase in museums, like the Museum of Modern Art in New York, that display industrial products. The range of artists’ creations is also expanding.

It can be argued that it is unreasonable to deny that an item is a work of art solely on the grounds that it is an industrial product created for mass production and sale.