Nov 18, 2022
Japan: Copyright Decision on Octopus Slide
Asamura IP P.C. Chinese Attorney
Zheng Xinjia
Copyright Decision on Octopus Slide
On July 19, 2022, the Supreme Court issued a decision not to accept the Octopus Slide Copyright Case (hereinafter referred to as “the case”).
In the case, the plaintiff Maeda Environmental Art Corporation (hereinafter referred to as “Maeda Art” or “plaintiff”) filed a lawsuit in the Tokyo District Court in September 2019, claiming that two octopus slides produced by Ans Corporation (hereinafter referred to as “Ans” or “defendant”) infringed its copyright (reproduction and adaptation rights) and seeking damages of 4.32 million yen.
The octopus slide produced by Maeda Art is shown below.
（Front） （Right Side）
（Left Side） （Back）
One octopus slide built by Ans is shown below.
（Front） （Right Side）
（Left Side） （Back）
After hearing the case, the Tokyo District Court dismissed the plaintiff’s claim. The plaintiff then appealed to the Intellectual Property High Court. The Intellectual Property High Court upheld the Tokyo District Court’s decision and dismissed the plaintiff’s appeal. After the plaintiffs appealed to the Supreme Court, the Supreme Court issued a decision not to accept the appeal.
The two most important issues in the case are as follows:
1. Is the octopus slide a work of art?
2. Is the octopus slide a work of architecture?
The decision on these two issues will determine whether the octopus slide is protected by the Copyright Act and whether the plaintiff can claim damages from the defendant.
In response to the issue of whether the octopus slide is a work of art, plaintiff argued that it was a monumental sculpture created by sculptor B, a former employee of plaintiff, who, after creating the abstract and textured “stone mountain” playground equipment, added a section resembling the head of an octopus to the “stone mountain” at the suggestion of the ordering party. The hollow in the slide created a mysterious space, and the head was added to create a sculpture that embraced both abstraction and concreteness, which allowed children playing on the slide to experience the beauty and fun of the form and the creativity expressed by the sculptor’s thoughts and feelings. In addition, the court argued that the fact that there is also a book of photographs and poems that evaluates the octopus slide as a work of art supports the originality and formative beauty of the sculpture.
Besides, although the legs and other forms have the purpose of realizing the function of a slide, there is actually a wide range of options for realizing that function. It is clear that the octopus form chosen by the artist is not something that can be necessarily created to fulfill the function of a slide.
The Tokyo District Court held that the slide in this case was manufactured as a playground equipment based on an order from the local government, and that it was an article primarily intended to provide a place for children to play as a playground equipment, and not primarily intended to be appreciated as paintings, prints, and sculptures, which are listed as typical examples of artistic works under Article 10-1-4 of the Copyright Law. The court concluded that the slide was not considered to be a work of art.
It was also determined that having an appearance resembling an octopus, as in the case of a slide, is not considered to be a part that can be grasped as having aesthetic characteristics that could be an object of art appreciation, separated from the configuration pertaining to the function necessary to achieve the practical purpose as a design of playground equipment.
The plaintiff’s argument is based on the fact that the plaintiff’s slide in this case has a wide range of expressive choices and expresses the individuality of sculptor B. The court ruled that this point falls under the requirement of “a creative expression of thought or emotion” among the requirements for copyrightability (Article 2-1-1 of the Copyright Law), but not “something that falls within the scope of art”.
Therefore, the Tokyo District Court ruled that none of the above arguments by the plaintiffs could be adopted.
The Intellectual Property High Court in the second instance took the same viewpoint as the Tokyo District Court and held that the important criteria for determining whether a work is recognized as a work of art is whether the part of the work that has creative expression, an aesthetic characteristic that can be the object of aesthetic appreciation, can be grasped separately from the composition related to the function necessary to achieve a practical purpose. If mass-produced products other than one-of-a-kind arts and crafts are uniformly protected as works of art simply because they can be the object of aesthetic appreciation, the shape and other compositions necessary to realize the function of a practical product will also be protected by copyright, which will excessively restrict the use of the product’s shape and other aspects and discourage future creative activities. This would excessively restrict the use of the shape of the product and discourage future creative activities, which is not appropriate. It was concluded that the shape of a mass-produced product should not be denied protection as a design under the Design Law.
Regarding the octopus slide in this case, plaintiffs attempted to prove that each octopus slide was different by citing several articles. However, these articles were mere hearsay and had no objective corroboration. Plaintiff was contracted to build more than 260 octopus slides throughout Japan. The basic structure of these slides was fixed and categorized into several types. The slide in this case belongs to one of these types, the “mini octopus”. It is clear that there are other “mini octopus” slides similar to the slide in this case.
As to whether the part with creative expression, which is an aesthetic characteristic that can be an object of aesthetic appreciation, can be grasped, the Intellectual Property High Court held that, among the part imitating the head of an octopus, the canopy part can be grasped separately from the composition related to the function necessary to achieve the practical purpose as a slide. However, the shape of the canopy portion itself is simple and commonplace as the shape of an octopus head, and it is not considered to have a creative expression, which is an aesthetic characteristic. It can be said that the design other than the canopy part is a composition necessary to achieve the practical purpose of the product, and cannot be understood as having creative expression, which is an aesthetic characteristic that can be the object of aesthetic appreciation separately from the function.
Therefore, the slide in this case does not constitute a work of art.
In response to the issue of whether the octopus slide constituted a work of architecture, the plaintiff argued that, externally, it exceeded the degree of aesthetic creativity usually applied to slides, was an object of aesthetic appreciation independent of its utility and functionality as a slide. And it had a much higher degree of aesthetic creativity than the aesthetic creativity usually applied to slides.
In response, the Tokyo District Court held that the shape of the plaintiff’s slide, its head, legs, and cavity, as well as its overall appearance, were closely related to the function of the architectural structure used as playground equipment. The overall appearance of the building, including the red paint color, is reminiscent of an octopus, but this appearance is also closely related to the function of the building as a playground equipment, which is to provide interest and familiarity to children and other users of the building. The court held that the appearance of the building is not beyond the scope of the design of the playground equipment, which is an architectural structure.
The Intellectual Property High Court agreed with the Tokyo District Court that the overall appearance of the plaintiff’s slide in this case could not be recognized as an object of aesthetic appreciation, nor could it be recognized as having a creative expression that is an aesthetic characteristic.
In recent years, Japanese courts have often taken a negative view of copyright claims regarding practical products.
In addition to the octopus slide mentioned above, the copyright was not recognized for the following package of black oolong tea, because the court ruled that although the design had a certain ingenuity, it could not be regarded as an object of appreciation.
（Reference: HP of the party involved in the case）
Training chopsticks for children, such as those shown below, are also one example. This chopstick was not copyrighted because it was judged that even if there was ingenuity from a practical point of view, it was difficult to recognize creative ingenuity that could be an object of aesthetic appreciation.
（Reference: Amazon）
One exception is the children’s chair shown in the figure below. This chair was judged to be a creative expression of the designer’s individuality, and copyright was granted.
（Photo source: Catalog of the party involved in the case）
What we can notice from the decision in the Octopus Slide case is the tendency of Japanese courts to protect practical products by design. Industrial products that are mass-produced are difficult to be protected by copyright. If you have a design for a product that needs protection, you should consider filing a design application in advance.