Date of
Judgment: March 28, 1980
Issuing
Authority: Supreme
Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial
(Civil)
Subject
Matter: Copyright and Related
Rights (Neighboring Rights)
Summary
of the judgment (decision):
1. Citation in Article 30,
para.1, subpara.2 of the previous Copyright Law (Law No.39, 1899) means
accommodation of, in principle, part of other person's work in one's work for
the purpose 2 of introduction, reference, criticism, etc. It is required that
from the viewpoint of the form of the work citing another person's work, the
work which is citing the other person's work and the work being cited should be
clearly and distinctively recognisable and
furthermore, the relationship between both works is that the former is the main
and the latter is the subordinate.
2. In a case where a person
modified a photograph taken by another person and used it to produce a montage
photograph, if it is possible directly to perceive the essential
characteristics of the other person's photograph from this montage photograph,
even though the montage photograph can be regarded as a work, its production
and publication are an infringement of the author's moral rights unless the
other person has given consent.
3. The publication of the
montage photograph in black and white that is synthetically produced by cutting
off a part of the photograph taken with a view of a mountain and six skiers
coming down from the snow slope with a spur resembling the track of a snow tyre and placing a photograph of a huge snow tyre at the upper edge of the snow slope and the beginning
of the above-mentioned spur by likening the ski spur to the track of a snow tyre is an infringement of the right to maintain the
identity of the photograph held by the author of the photograph, unless there
is consent by the author.
(This
translation is provisional and subject to revision.)