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Sources of law

Right of publicity

Is the right of publicity recognised?

Yes. The right of publicity is recognised in Japan.

Principal legal sources

What are the principal legal sources for the right of publicity?

Although there are no express provisions in Japanese law regarding the right of publicity, it has been developed by Japanese precedents that justify the existence of this right based on provisions of the Constitution and the Civil Code.

The Constitution of Japan

Article 13. All of the people shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

The precedent of the Supreme Court held that the right of publicity is derived from a personal right. The personal right is legally recognised as ‘the pursuit of happiness’.

The Civil Code

Article 709. A person who has intentionally or negligently infringed any right of others, or legally protected the interest of others, shall be liable to compensate any damages resulting in consequence.

Enforcement

How is the right enforced? Which courts have jurisdiction?

The right of publicity can be enforced by means of civil law.

In civil law, the infringed party can apply for a preliminary injunction or file a suit against the infringer. The infringed party can, inter alia, claim damages, reimbursement of unjust enrichment and a permanent injunction. These claims can be enforced by the civil courts at the request of the infringed party.

District courts have jurisdiction for the first instance. The High Courts have jurisdiction for the appellate instance. The Supreme Court has jurisdiction for the final appellate instance.

Other relevant rights

Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?

Yes. People can register their name, picture, likeness or identifying characteristics as a trademark with the Japan Patent Office. If the trademarks are registered with the Japan Patent Office, registered trademark owners can assert trademark rights against third parties’ use of such registered trademark under the Trademark Act. If the use of a trademark on goods or services is not the use to enable consumers to perceive that such goods or services are produced, distributed, or provided by such a trademark owner, it does not consist of trademark infringement under article 26.6 of the Trademark Act. In other words, if the use is not the ‘use as a trademark’, it does not consist of trademark infringement.

In addition, the act of creating confusion with other people’s goods or business by using an indication of goods or business (eg, unregistered trademark) that is identical or similar to an indication of goods or business that is well-known among consumers as that of another person is prohibited under the Unfair Competition Prevention Act. Hence, owners of such an indication of goods or business may seek an injunction and damage compensation against third parties’ use of such an indication of goods or business under the Unfair Competition Prevention Act. The requirement of confusion is not necessary if an indication of goods or business is remarkably famous nationally instead of just well-known. If the use of an identification of goods or business is not the ‘use as an identification of goods or business’, it does not consist of violation of the Unfair Competition Prevention Act.

Existence of right

Protectable aspects

What aspects of a person’s identity are protectable under the right of publicity?

The aspects based on the commercial value of a person’s name, portraits and the like are protectable under the right of publicity that was upheld by the Supreme Court.

Do individuals need to commercialise their identity to have a protectable right of publicity?

It is not required for individuals to commercialise their name, portraits, and the like to have a protectable right of publicity; however, it is necessary if the sole purpose of the use of their name, portraits, and the like is to take advantage of the customer appeal.

Foreign citizens

May a foreign citizen protect a right of publicity under the law of your jurisdiction?

Yes. A foreign citizen’s right of publicity is protected under Japanese law.

Registration requirements

Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?

No. Registration is not required for protection of the right of publicity.

Protection after death

Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?

The right of publicity is ‘derived from’ a personal right and a personal right is not protected after the person’s death. Therefore, the right of publicity is unlikely to be protected in this case; however, there are no precedents at this moment.

Ownership of right

Transferring

Can the right be transferred? In what circumstances?

The right of publicity is ‘derived from’ a personal right, and a personal right cannot be transferred; however, there are no precedents at this moment.

Licensing

Can the right be licensed? In what circumstances?

Yes. The right of publicity can be licensed by the right owner (licensor).

Infringement

If the right is sold or licensed, who may sue for infringement?

Generally, only the right owner may enforce their right and seek injunction and damage compensation; however, an exclusive licensee may seek damage compensation for infringement of their exclusive licence from third parties under the tort law.

Post-mortem rights

If post-mortem rights are recognised, are they limited to natural heirs or can they be enforced under a contract by an assignee or left to an entity?

As described in question 9, the right of publicity is unlikely to be protected after the person’s death.

Recommended actions

Are there any actions that rights owners should take to ensure their rights are fully protected?

No. There are no specific actions that rights owners should take to ensure their rights are fully protected.

Infringement

Right infringement

What constitutes infringement of the right?

The unauthorised use of the name, portraits, and the like of a person constitutes infringement of the right of publicity if the sole purpose of the use is to take advantage of the customer appeal.

Excluded formats

Are certain formats of intellectual property excluded from claims based on the right of publicity? What is the legal basis of the exclusions?

No. There are no such exclusions; however, if the sole purpose of the use of the name, portraits, and the like of a person is not to take advantage of the customer appeal, then there would be no infringement of the right of publicity.

Infringement claim requirements

Is knowledge or intent to violate the right necessary for a finding of infringement?

No. Intention or negligence is not required to seek an injunction. However, intention or negligence is required to seek damage compensation under the law of tort.

Liability of media

Does liability extend to media publishing content created by an advertiser and website operators publishing posts by third parties? Does republishing or retweeting or other social media propagation of existing content give rise to liability?

Yes. However, if such a third party or social media propagator does not intend to infringe the right of publicity and is not negligent, liability does not extend to such a third party or social media propagator.

Remedies

Available remedies

What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?

The available remedies are injunction and disposal of infringing products. Monetary damages are also available.

Time limits

Is there a time limit for seeking remedies?

Yes. There is a time limit for seeking remedies.

Generally, the right to seek damage compensation under the tort cause of action shall be extinguished by the statute of limitations if it is not exercised by the infringed party or their legal representative within three years from when they came to know of the damages and the identity of the infringer in accordance with article 724 of the Civil Code (Restriction of Period of Right to Demand Compensation for Damages in Tort).

Nevertheless, the infringed party or their legal representative can seek injunction as long as there is a continual risk of infringement.

Attorneys' fees

Are attorneys’ fees and costs available? In what circumstances?

Yes. Attorneys’ fees and costs are available as part of damage compensation for infringement of the right of publicity.

Generally, the courts tend to award 10 per cent of damages to cover attorneys’ fees and costs.

Punitive damages

Are punitive damages available? If so, under what conditions?

No. Punitive damages are not recognised under Japanese law, so they are not available for an infringement of the right of publicity.

Preliminary relief

Is preliminary relief available? If so, what preliminary measures are available and under what conditions?

Yes. Preliminary relief is available if the right owner can make a prima facie case showing their right of publicity has been infringed and the necessity for granting such a preliminary relief (without waiting for the conclusion of normal litigation).

Damages measures

What are the measures of damages?

There is no clear rule regarding the measures of damages. The courts decide in total consideration of the amount equivalent to:

  • an ordinary royalty for the related goods;
  • damage to value of endorsement; and
  • damage to reputation and the like.

Significant case law

What significant judgments have recently been awarded for infringement of the right?

The most significant recent judgment was given on 2 February 2012 by the Supreme Court (the ‘Pink Lady’ case).

The Supreme Court referred to the right of publicity for the first time but did not award for infringement of the right.

The Supreme Court held as follows:

1. The unauthorised use of the name, portraits, and the like of aperson is considered to be infringement of the right to exclusively use the customer appeal of the name, portraits, and the like (so-called ‘the right of publicity’) and is found to be illegal under the tort law if the sole purpose of the use is to take advantage of the customer appeal, more specifically, in such cases where the name, portraits, and the like are: (i) used as goods, and the like, that may be appreciated as independent objects; (ii) affixed to goods, and the like, for the purpose of distinguishing the goods from other goods, and the like; or (iii) used to advertise goods, and the like.

2. In the case where photographs of the singers known as ‘PinkLady’ were used and published in an article of a weekly magazine without their consent, in light of the facts found by the court as listed in (1) and (2) below, the sole purpose of this use cannot be regarded as the use of the customer appeal of the portraits of the singers, and, therefore, this use cannot be regarded as infringement of the right to exclusively use the customer appeal (so-called ‘the right of publicity’) and cannot be found to be illegal under the tort law:

(1) In this case, the article explains a weight-loss method, popular around the autumn of the year prior to the publication of the article, that utilises the dance moves of the singers’ songs, and it also cites entertainers’ childhood memories of mimicking these dance moves.

(2) The photographs of the singers are used only on three pages out of a total of about 200 pages of the magazine issue, they are all black and white, and 2.8cm x 3.6cm or 8cm x 10cm in size.

Another significant judgment was given on 13 February 2014 by the Supreme Court (the ‘Gallop Racer’ case). The issue was whether the name of an object (in this case, a horse) is protected under the right of publicity. The Supreme Court held that it is not protected.

The Supreme Court held as follows:

The owners of racehorses cannot seek on the ground of infringement of the right of publicity: (i) injunction against a company that produced and sold video game software by using the names of the racehorses without their permission, (ii) injunction on the production and sales of the software, or (iii) damages arising from the company’s unlawful act.

(1) Ownership of an object such as racehorses only gives the owners the right of exclusively controlling the object as tangible property and does not include the right of directly and exclusively controlling the name of the object as intangible property. Therefore, where a third party uses the intangible economic value of a racehorse (ie, the ability of the name of the racehorse to attract customers), without infringing the owner’s right of exclusively controlling the racehorse as tangible property, such use should be construed as not infringing the ownership of the racehorse.

(2) Currently, with respect to the use of an object as intangible property (eg, the use of the name of an object), the existing statutes such as the Trademark Act and the Unfair Competition Prevention Act protect rights in such use by granting exclusive right to use to a certain class of persons under certain conditions. However, at the same time, in order to ensure the grant of such right to use will not impose excessive restrictions on the people’s freedom of economic and cultural activities, these statutes stipulate how intellectual property rights shall be established and extinguished, as well as the contents and scope of such rights, thereby clarifying the scope and limit of such exclusive right to use. Even if the name of a racehorse has the ability to attract customers, it is inappropriate to grant the owner of the racehorse, without statutory grounds, an exclusive right to use the name of the racehorse as intangible property.

Litigation

Relevant fora

In what forum are right of publicity infringement proceedings held?

Right of publicity infringement proceedings are held in the same forum as normal litigations of tort cause of actions. See question 3.

Use of juries

Are disputes decided by a judge or a jury? Are damages determined by a judge or a jury?

There is no jury system for civil litigation under Japanese law. Disputes are decided by a judge or a panel of three judges in the court. However, there is a panel of five judges in the Supreme Court for the final appellate instance.

Damages are determined by the judge or panel of judges.

Applicable law

How is the choice of applicable law determined?

The choice of applicable law is determined by a judge or panel of judges in accordance with the Act on General Rules for Application of Laws.

The formation and effect of a claim arising from a tort shall be governed by the law of the place of the infringement. However, if the infringement was ordinarily unforeseeable, it shall be governed in accordance with article 17 of the Act on General Rules for Application of Laws.

Nevertheless, the formation and effect of a claim arising from a tort shall be governed by the law of the place with which the tort is obviously more closely connected than the place indicated above, in light of: the parties’ habitual residences in the places governed by the same law at the time of the infringement, the tort being committed in breach of the obligation under a contract between the parties, or any other circumstances governed in accordance with article 20 of the Act on General Rules for Application of Laws.

Generally, Japanese law shall govern infringement of the right of publicity in Japan.

Consideration of foreign decisions

To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?

Courts are bound by the opinions in legal decisions of the Supreme Court when it has handed down decisions on the same issue. The opinions of other national courts or foreign courts are non-binding; however, courts may consider the opinions of other national or foreign courts that have handed down decisions in similar cases; nevertheless, they are not bound by those decisions.

Appeals

What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?

The party who lost the case, in whole or in part, at first instance may appeal to the High Court, including the designated Intellectual High Court, depending on the district court of first instance. Final appeal to the Supreme Court is limited pursuant to the Code of Civil Procedure.

Average cost and time frame

What is the average cost and time frame for a first-instance decision, for a preliminary injunction, and for appeal proceedings?

It usually takes approximately one year to 18 months for the first instance and approximately six months for the second instance. The costs to be paid to the court shall be determined by the Act on Costs of Civil Procedure. Such costs shall increase in proportion to the damages to be claimed. Attorneys’ fees shall be determined by each attorney.