Copyright Date

October 19, 2022

Case

2022 (Ne) 10019

Court

Intellectual Property High
Court, Second Division

number- A case in which disclosure of identification information of the senders wasdemanded, and the court determined that even if the posts on Twitter (tweets) amountto defamation through an allegation of a fact, it is not proved that there is no
justifiable cause for noncompliance with the law, and did not find that violation of
the right was obvious.
- A case in which the court ruled that the use of an illustration in a tweet constitutes
legal "quotation" (Article 32, paragraph (1) of the Copyright Act).
- When an image of an illustration attached to a tweet is only partially displayed on
the timeline of Twitter, such use of the illustration constitutes a "modification that isfound to be unavoidable" (Article 20, paragraph (2), item (iv) of the Copyright Act)
when using Twitter.
Case type: Disclosure of Identification Information of the Senders
Result: Partial modification of the prior instance judgment
References: Article 20, paragraph (1), paragraph (2), item (iv), Article 21, Article 23,
paragraph (1), and Article 32, paragraph (1) of the Copyright Act, Article 4, paragraph(1) of the Act on the Limitation of Liability for Damages of Specified
Telecommunications Service Providers and the Right to Demand Disclosure of
Identification Information of the Sender
Judgment of prior instance: Tokyo District Court, 2020 (Wa) 24492, rendered on
December 23, 2021
Summary of the Judgment
1. In this case, the Appellee (First-instance Plaintiff) alleges that it is obvious that theAppellee's copyright and moral rights of an author regarding the illustrations createdthereby as well as the Appellee's right to honor and business right have been vi olated
because the four posts of tweets containing the images of the illustrations created by
the Appellee (Tweets 1-1, 1-2, 2-1, and 2-2; collectively the "Tweets") were made on
Twitter (information service whereby users can post messages, etc. called tweets using
the internet) by unidentified persons (Posters 1 and 2), and based on this allegation, theAppellee demands the Appellant (First-instance Defendant), the company operating
Twitter, to disclose identification information of the senders pursuant to Article 4,paragraph (1) of the Act on the Limitation of Liability for Damages of SpecifiediTelecommunications Service Providers and the Right to Demand Disclosure of
Identification Information of the Sender (the "Provider Liability Limitation Act") prior
to the amendment by Act No. 27 of 2021.
The Appellee is an illustrator who sold his/her illustrations at around 3,000 to 5,000
yen for each. In the Tweets, it is indicated that the Appellee's illustrations were createdby tracing other persons' illustrations or photographs, and that the Appellee is "常習犯" for tracing (a habitual tracer). These tweets show images created by overlaying theillustration or photograph that is alleged to be the original that is traced, on theAppellee's illustration that is suspected of having been created by tracing the former,
and the Appellee's illustrations that are not suspected of having been created by tracing
are attached to these tweets. Some of the images attached to the Tweets (e.g.,
illustrations created by the Appellee) are displayed in the trimmed form on the timeline.
2. The court of prior instance found that it is obvious that defamation, violation of the
copyright, and violation of the right to integrity have been committed, determining asfollows: [i] as it is not found that the Appellee created illustrations by employing themethod of tracing, there is no justifiable cause for noncompliance with the law in termsof defamation; [ii] in order to examine the difference in the abilities to draw, it issufficient to compare illustrations of a woman's profile that have the same or similar
composition, and therefore, the use of the illustration with a different composition (afront view of a woman with open eyes) is not considered to be "within a scope that isjustified for the purpose"; and [iii] displaying the illustrations in the trimmed form on
the timeline constitutes a "modification" and it cannot be regarded as a "modificationthat is found to be unavoidable." The court of prior instance upheld the Appellee's
claims to the extent to demand the disclosure of the IP address and the date and time
for the latest login made before the Tweets were posted, and the telephone number andemail address of the administrator of the accounts of the posters, while dismissing al lthe other claims. The Appellant filed an appeal against the judgment in prior instance.
3. In this judgment, the court determined that it is not found that the violation of therights by the posting of the Tweets is obvious, and it modified the judgment in priorinstance and dismissed all of the Appellee's claims. The reasons for this conclusion are
as summarized below.
(i) Regarding whether the violation of the rights is obvious
In order to say that the situation falls under the case [as] provided in Article 4,paragraph (1), item (i) of the Provider Liability Limitation Act where "it is obvious thatthe rights of a person demanding the disclosure have been violated by the distributionof the violating information," it is considered that allegations and evidence are requirediiwith regard to not only the fact that the rights of the person demanding the disclosure
have been violated by the distribution of the violating information, but also the fact that
there are no such circumstances suggesting the existence of justifiable cause fornoncompliance with the law.
(ii) Regarding defamation
The social reputation of the Appellee, who is an illustrator, has been undermined
due to the allegation of the fact that Appellee's Illustration 1 was created by tracing
Exhibit Otsu 1-2 Illustration created by a third party. That alleged fact implies thepossibility that the Appellee's act may be questionable under the Copyright Act, and it
is important information to consumers who are to purchase illustrations created b y theAppellee. Therefore, the act of posting Tweet 1-1 can be considered to be related to afact concerning public interest and be intended exclusively to promote public interest.
In addition, Appellee's Illustration 1 (an illustration of a woman's profile) and Exhibit
Otsu 1-2 Illustration, which is alleged to be the original that is traced, are identical witheach other in terms of the line, the angle of the neck and the position of the ear, and it
is unlikely that these illustrations accidentally become identical in terms of all thesefeatures. Taking all these points into account, it is highly probable that the alleged factthat "Appellee's Illustration 1 was created by tracing Exhibit Otsu 1 -2 Illustration" istrue. Accordingly, it must be said that it is not sufficiently proved that there are no suchcircumstances suggesting the existence of justifiable cause for noncompliance with thelaw.
(iii) Regarding violation of the copyrightIf, in order to verify and criticize that the illustration created by the Appellee wascreated by tracing another person's illustration or photograph, the illustration createdby the Appellee and the illustration or photograph that is alleged to be the original thatis traced are used by overlaying them on each other, such manner of use is convenient
for examining the content of the article and can ensure objectivity, and it constitutes
legal "quotation" provided in Article 32, paragraph (1) of the Copyright Act.
Poster 2 intends to show that the illustrations of a woman's profile created by theAppellee, which are contained in Appellee's Illustration 5, are unnatural in terms of theability to draw when compared with other illustrations created by the Appellee, with aview to verifying that the abovementioned illustrations of a woman's profile werecreated by the act of tracing. In order to assess the Appellee's ability to draw, which isobserved in the illustrations other than the illustrations of a woman's profile, it isappropriate to comparatively observe multiple illustrations created by the Appellee.
Therefore, the use of two illustrations created by the Appellee in Tweet 2-1 constitutesiii

legal "quotation."(iv) Violation of moral rights of an author
How a tweet is displayed on the timeline of Twitter depends on the specification of
Twitter or the specification of the client app for displaying tweets, and it cannot befreely set by posters; therefore, at the time of posting a tweet, the poster is unable toknow how his/her tweet would be displayed. After a tweet is posted, when there is achange to the specification of Twitter or the specification of the client app for displaying
tweets, how the tweet is displayed on the timeline would also change. Image dataattached to a tweet is downloaded onto the terminal of the user who views the tweet,
and when the user clicks the image on the timeline, the entirety of the image would be
displayed. In light of these facts, setting aside the issue as to whether the p oster can be
regarded as the person who carried out the modification, if the image is displayed only
partially on the timeline, it should be deemed to be a "modification that is found to beunavoidable" under Article 20, paragraph (2), item (iv) of the Copyright Act when using
Twitter.

iv

Judgment rendered on October 19, 2022
2022 (Ne) 10019, Appeal case of seeking disclosure of identification information of thesenders(Court of prior instance: Tokyo District Court, 2020 (Wa) 24492)
Date of conclusion of oral argument: August 24, 2022
Judgment
Appellant (First-instance Defendant): Twitter, Inc.

Appellee (First-instance Plaintiff): Y

Main text
1. Of the judgment in prior instance, the part against the Appellant shall be revoked.
2. The appeal to the court of second instance filed by the Appellee shall be dismissedwith respect to the part mentioned above.
3. The court costs in the first and second instances shall be borne by the Appellee.
Facts and reasons
The abbreviations of terms and the meanings of abbreviations are subject to the
judgment in prior instance, except for those specified in this judgment, the "Plaintiff"and the "Defendant" referred to in the judgment in prior instance are deemed to be
replaced with "Appellee" and "Appellant," respectively. The term "attachment(attached)" which appears in the cited parts of the judgment in prior instance is entirely
altered to "attachment of (attached to) the judgment in prior instance."
No. 1 Object of the appeal
Same as the main text.
No. 2 Outline of the case, etc.
1. Outline of the caseIn this case, the Appellee alleges that it is obvious that the Appellee's copyright andmoral rights of an author regarding the illustrations indicated in the List of theAppellee's Illustrations attached to the judgment in prior instance as well as theAppellee's right to honor and business right have been violated because the articles
indicated in Attached Lists of Posted Articles 1 and 2 (including the images indicatedin the List of Posted Images attached to the judgment in prior instance) were posted on
Twitter (information service whereby users can post messages, etc. called tweets using1the internet) by unidentified persons (Posters 1 and 2), and based on this allegation, theAppellee demands the Appellant, the company operating Twitter, to disclose
information indicated in the Attached List of Identification Information of Senders
pursuant to Article 4, paragraph (1) of the Act on the Limitation of Liability for
Damages of Specified Telecommunications Service Providers and the Right to Demand
Disclosure of Identification Information of the Sender (the "Provider Liability
Limitation Act") prior to the amendment by Act No. 27 of 2021.
The court of prior instance upheld the Appellee's claims to the extent to dem and thedisclosure of the following: [i] among the pieces of information indicated in 1 and 2 of
the Attached List of Identification Information of Senders, the IP address for the latest
login made on or after the midnight of April 3, 2020 (JST) and before each post
indicated in the Attached Lists of Posted Articles was made, as well as the date and time
when

the

information

concerning

that

login

was

transmitted

from

the

telecommunication facilities to which the abovementioned IP address was assigned, tothe specified telecommunication facilities used by the Appellant; and [ii] the telephone
number of the account administrator indicated in the User Name column of Attached
List of Posted Articles 1 and the email address of the account administrator indicatedin the User Name column of Attached List of Posted Articles 2. The court of priorinstance dismissed all the other claims of the Appellee.
The Appellant filed an appeal with regard to the part of the judgment in priorinstance which was against the Appellant.
2. The basic facts, issues, and allegations of the parties related to the issues are alteredas follows, and the supplementary allegations and additional allegations of the parties
made in this instance as stated in 3. below are added. The remaining parts are as statedin 2. and 3. in "No. 2 Outline of the case" and in "No. 3 Allegations of the parties on
the issues" in the "Facts and reasons" section in the judgment in prior instance and they
are therefore cited.
(1) The part from "ツイッターを" in line 22, page 3 of the judgment in prior instanceto the end of line 23 on the same page is altered to "インターネットを通じて、自身が制作したイラストを販売している（甲９～１３、２７、２９、３０、４２）。
[sells illustrations he/she created, using the internet (Exhibits Ko 9 to 13, 27, 29, 30,
and 42)].".
(2) The following is added as a new line after the end of line 1, page 5 of the judgmentin prior instance.
"D. The Posts remained undeleted after they were made until December 23, 2021, andthey were available for viewing by anyone during this period."2

(3) The part from the beginning to the end of line 4, page 5 of the judgment in priorinstance is altered to "The Appellant retains the information indicated in the Attached
List of Identification Information of Senders (hereinafter referred to as the"Identification Information of Senders").".
(4) The following is added as a new line after the end of line 12, page 5 of the judgmentin prior instance: "E. Whether the requirement of 'violation by the distribution of theviolating information' is satisfied with regard to Tweets 2-1 and 2-2 (Issue 1-5)".
(5) The term "Ministerial Order" on line 16, page 5 of the judgment in prior instance isaltered to "Ministerial Order Specifying Identification Information of the Senders under
Article 4, Paragraph (1), of the Act on the Limitation of Liability for Damages ofSpecified Telecommunications Service Providers and the Right to Demand Disclosureof Identification Information of the Sender prior to the repeal by Order of the Ministryof Internal Affairs and Communications No. 39 of 2022 (this ministerial order ishereinafter referred to as the 'Ministerial Order' and it may also be referred to as the'Amended Ministerial Order' in order to make it clear that it is the Ministerial Order
Specifying Identification Information of the Senders under Article 4, Paragraph (1), of
the Act on the Limitation of Liability for Damages of Specified Telecommunications
Service Providers and the Right to Demand Disclosure of Identification Information of
the Sender which is prior to that repeal and after the amendment by Order of the
Ministry of Internal Affairs and Communications No. 82 of 2020.)".
(6) The phrase "Ministerial Order prior to the amendment" on line 23, page 5 of thejudgment in prior instance is altered to: "Ministerial Order Specifying Identification
Information of the Senders under Article 4, Paragraph (1), of the Act on the Limitationof Liability for Damages of Specified Telecommunications Service Providers and theRight to Demand Disclosure of Identification Information of the Sender prior to theamendment by Order of the Ministry of Internal Affairs and Communications No. 82 of2020 (hereinafter referred to as the 'Ministerial Order prior to the amendment.')".
(7) The phrase "Posted Image 1-1-4" on line 10, page 12 of the judgment in priorinstance is altered to "Appellee's Illustration 1 contained in Posted Image 1 -1-4".
(8) The phrase "paragraph (1)" is inserted after "Article 32" on line 6, page 19 of thejudgment in prior instance, and the phrase "photograph of a kagami-mochi (round ricecake) on the internet" is altered to "image of the photograph of a kagami-mochi (round
rice cake) uploaded on the internet".
(9) The term "原告の" on line 3, page 22 of the judgment in prior instance is deleted.
(10) The part from the beginning of line 5, page 25 of the judgment in prior instance tothe end of line 9 of the same page is altered as follows:3

"As mentioned in A. above, it is obvious that Poster 2 posted Tweet 2-1, which violates
the Appellee's copyright and cannot be regarded as lawful speech, and that such postingstrongly instilled in the viewers of this tweet a fact that the Appellee performs the actof tracing, which resulted in the decrease of the number of prospective purchasers of
the Appellee's illustrations and the decrease in the Appellee's sales and earnings."(11) The part from the beginning of line 16, page 27 of the judgment in prior instanceto the end of line 20 of the same page is altered as follows:"As mentioned in A. and B. above, it is obvious that Poster 2 posted Tweet 2-2, whichcannot be regarded as lawful speech, and such posting gave the viewers of this tweet an
impression that the Appellee sells illustrations created by performing the act of tracing,which resulted in the decrease of the number of prospective purchasers of the Appellee's
illustrations and the decrease in the Appellee's sales and earnings."(12) The phrase "Posted Image 2-2-2" on line 2, page 28 of the judgment in priorinstance is altered to "Posted Image 2-2-2, which is the same image as Appellee's
Illustration 5".
(13) The character "を" at the beginning of line 9, page 29 of the judgment in priorinstance is deleted.
(14) The phrase "アカウントの [of the accounts]" on line 9, page 30 of the judgmentin prior instance is altered to "本件各アカウントの [of the Accounts]". The following
is added to the part that ends with "主張する[alleges]" on line 17 of the same page "andalso alleges that only the IP address used at the time of transmitting the violating
information is the 'IP address involved in the violating information'.". The phrase"Ministerial Order No. 8" on line 24 of the same page is altered to "Ministerial Orders
No. 5 and No. 8". The part from "仮に、[If]" on line 1, page 31 of the judgment in priorinstance to the end of line 8 of the same page is deleted.
(15) The phrase "identification information of the sender" is inserted before "pertaining
to violation" on line 10, page 31 of the judgment in prior instance, and the phrase"identification information of the sender 'pertaining to the violation of the rights'" online 25 of the same page is altered to "'identification information of the sender'pertaining to the violation of the rights'".
(16) The phrase "the Tweets" on line 1, line 2, and line 16, page 35 of the judgment inprior instance is altered to "Tweets 1-1 and 1-2", and the phrase "the Posts" in line 4,line 8, and line 26 of the same page and in line 1, page 36 of the judgment in priorinstance is altered to "the posts of Tweets 1-1 and 1-2".
(17) The phrase "(1) (Allegations of the Defendant), A. above" on line 4, page 38 of thejudgment in prior instance is altered to "(1) (Allegations of the Appellant), A. and B.
4

above".
(omitted)
No. 3 Judgment of this court
1. Issue 1-1 (Whether the violation of the rights by the posting of Tweet 1-1 is obvious)(1) Regarding whether the "violation of the rights is obvious"
Identification information of the sender is information that is concerned with thesender's privacy, freedom of expression, and secrecy of communication and should not
be disclosed to any third party without justifiable grounds, and once such information
is disclosed, it would be impossible to recover the original state prior to the disclosur e.
From this viewpoint, Article 4, paragraph (1), item (i) of the Provider Liability
Limitation Act specifies strict requirements for the demand for the disclosure of theidentification information of the sender (see 2009 (Ju) 609, judgment of the Third Petty
Bench of the Supreme Court of April 13, 2010, Minshu Vol. 64, No. 3, at 758). In lightof this, in order to say that the situation falls under the case as provided in that item
where "it is obvious that the rights of a person demanding the disclosure h ave been
violated by the distribution of the violating information," it is considered that
allegations and evidence are required with regard to not only the fact that the rights ofthe person demanding the disclosure have been violated by the distribution of theviolating information, but also the fact that there are no such circumstances suggesting
the existence of justifiable cause for noncompliance with the law.
(2) Regarding Tweet 1-1
According to evidence (Exhibits Ko 1-1 to 1-5, Ko 17, 32, 37-1 and 37-2), Tweet 11 was posted by Poster 1 at 10:30 p.m. on April 3, 2020. It consists of the texts, "これどうだろう ww [What about this? (laugh)]" and "ゆるーくトレス？ 普通にオリジナルで描いてもここまで比率が同じになるかな [Roughly traced? Would the ratio
be so close even when an illustration is drawn as an original in a normal manner?]," andthe following images: [i] Exhibit Otsu 1-2 Illustration (Posted Image 1-1-1); [ii] two
images each created by overlaying Exhibit Otsu 1-2 Illustration and Appellee's
Illustration 1 one on the other (Posted Images 1-1-2 and 1-1-3); and [iii] an image inwhich multiple illustrations created by the Appellee, including Appellee's Illustration 1,
are shown side by side (Posted Image 1-1-4). Tweet 1-1 is displayed on the timeline asindicated in 1 of the List of Timelines attached to the judgment in prior instance, and it
is found that each of Posted Images 1-1-1 to 1-1-4 is displayed only partially on thetimeline (as explained in (5) C. below, the display on the timeline is not fixed; the same5

applies hereinafter).
(3) Regarding defamation
A. Whether the meaning or content of a certain article undermines another person'ssocial reputation should be determined on the basis of the ordinary care and way ofreading of general readers of the article (see 1954 (O) 634, judgment of the Second
Petty Bench of the Supreme Court of July 20, 1956, Minshu Vol. 10, No. 8, at 1059).
This also applies when determining whether an article posted on Twitter constitutes
defamation.
Defamation could be caused not only by an allegation of a fact but also by
presentation of one's opinions or comments. If an expression is understood as explicitly
or implicitly arguing a specific matter concerning another person that can be proved to
be true or false by evidence, etc., it is appropriate to consider that such expression is anallegation of a fact concerning that specific matter (see 1994 (O) 978, judgment of theThird Petty Bench of the Supreme Court of September 9, 1997, Minshu Vol. 51, No. 8,
at 3804). Critiques and discussions concerning the value, judgment between right andwrong, and superiority of a thing that are not suitable for such proof by evidence, etc.
should be deemed to fall within the scope of expressions of opinions or comments (see2003 (Ju) 1793, 1794, judgment of the First Petty Bench of the Supreme Court of July
15, 2004, Minshu Vol. 58, No. 5, at 1615). The requirement that determination should
be made on the basis of the ordinary care and way of reading of general readers also
applies in terms of the distinction mentioned above (see the abovementioned judgmentof the Third Petty Bench of the Supreme Court of September 9, 1997).
B. (a) Looking at Tweet 1-1, as mentioned in (2) above, it consists of two images eachcreated by overlaying Exhibit Otsu 1-2 Illustration and Appellee's Illustration 1 one on
the other, and the following texts: "これどうだろう ww [What about this? (laugh)]";and "ゆるーくトレス？ 普通にオリジナルで描いてもここまで比率が同じにな
るかな [Roughly traced? Would the ratio be so close even when an illustration is drawn
as an original in a normal manner?]." According to evidence (Exhibits Ko 1-1 and 49;
Exhibit Otsu 1-1), it is found that: the tweets posted on Account 1 on the same day asor the day following the day on which Tweet 1-1 was posted, contained the statements:" 目 が 開 い て い な い の は ト レ ス 元 に 似 ち ゃ う か ら な の か [The eye is closed
probably because the illustration would resemble the original if the eye is open?]" and"検証に使用した絵はＡさんの絵[A-san's picture was used for verification]"; andthese tweets are displayed on the thread for which Tweet 1-1 is the original tweet. In
view of these facts, and on the basis of the ordinary care and way of reading of generalreaders, Tweet 1-1 can be found to be alleging that Appellee's Illustration 1, which is6

an illustration of a woman's profile with her eye closed, was created by tracing, although
not accurately, Exhibit Otsu 1-2 Illustration, which is an illustration of a woman's
profile with the eye open that was created by Mr./Ms. A. This determination would not
be affected by the fact that the abovementioned texts contain the sign that signifies aquestion ("?") or end with a phrase that signifies a question ("なるかな").
In light of the fact that Poster 1 tries to verify whether a tracing was made, byshowing Exhibit Otsu 1-2 Illustration, which is alleged to be the original that is traced,and Appellee's Illustration 1, which is alleged to have been created by tracing the former,
in a manner that they are overlaid on each other, it is appropriate to find that the term "トレース" (or "トレス" used by Poster 1) refers to displaying the original illustrationor photograph and directly copying it by following its lines, using a tool such as an app
for creating illustrations. The same applies to Tweet 1-2.
(b) The Appellant alleges that in the course of determining whether the posting of Tweet
1-1 amounts to defamation, the content of the tweets posted after Tweet 1-1 should not
be taken into consideration. However, according to evidence (Exhibit Ko 50), thefollowing facts are found: when posting a tweet, the user can create a "thread" by
drafting multiple tweets and by clicking "Tweet all" button, and after creating a thread,the user can add a tweet to the created "thread" by clicking the button to add a tweet;
and the tweets posted as a "thread" are connected with lines when they are displayed on
the timeline so that they can be regarded as a group, and if a thread consists of four ormore tweets, some of them are not shown, but by clicking the characters "Show thisthread," the user can have the entire thread shown. Poster 1 voluntarily posted multiple
tweets as a "thread" simultaneously upon posting Tweet 1-1 or by "adding tweets" toTweet 1-1. Furthermore, it is presumed that Twitter users, who are general readers ofTweet 1-1, understand the abovementioned mechanism of a "thread" on Twitter and readthe tweets in the thread including Tweet 1-1 while considering that tweets in the same
thread are related to one another. In light of these points, when interpreting the content
of Tweet 1-1 in the course of determining whether the posting thereof amounts to
defamation, it is appropriate to also take into consideration the content of at least thetweets posted in the same thread as Tweet 1-1 simultaneously with or at a time close to
the posing of Tweet 1-1. Therefore, the Appellant's allegation mentioned above cannot
be accepted.
(c) On the basis of the ordinary care and way of reading of general readers, the matterto the effect that Appellee's Illustration 1 was created by tracing Exhibit Otsu 1 -2
Illustration constitutes a specific matter concerning another person that can be proved
to be true or false by evidence, etc., and hence, Tweet 1-1 constitutes an allegation of a7

fact meaning a specific matter concerning the Appellee to the effect that Appellee's
Illustration 1 was created by tracing Exhibit Otsu 1-2 Illustration.
C. Next, the act of tracing constitutes "reproducing" but it does not immediately mean
violation of the Copyright Act. It cannot necessarily be said that the indication that aperson performed the act of tracing another person's illustration when creating an
illustration would undermine the social reputation of the person who traced the otherperson's illustration. However, in the present case, in light of the fact that the Appellee
acts as a professional illustrator selling illustrations created thereby, the content ofTweet 1-1 means that the Appellee, an illustrator, engaged in publishing an illustration
created by tracing another person's illustration as his/her original work, which isquestionable under the Copyright Act, and it is a fact that can sufficiently makeprospective purchasers of the Appellee's works pause in purchasing works from suchillustrator. Therefore, it is found that the Appellee's social reputation as an illustrator
has been undermined due to the allegation of that fact through the posting of Tweet 1 1 by Poster 1.
D (a) In the case of defamation by an allegation of a fact, where the act in question isrelated to a fact concerning public interest and it is intended exclusively to promote
public interest, the act is not illegal if it is proved that the important part of the alleged
fact is true; and even if this is not proved, if the person who engaged in that act has
good reason to believe that the important part of that fact is true, the act in question
does not constitute a tort because the person does not have the intention or negligencein terms of that act (see 1962 (O) 815, judgment of the First Petty Bench of the Supreme
Court of June 23, 1966, Minshu Vol. 20, No. 5, at 1118, 1981 (O) 25, judgment of theFirst Petty Bench of the Supreme Court of October 20, 1983, Saibanshu Minji No. 140,
at 177).
(b) Looking at this case from such viewpoint, Tweet 1-1 indicates that the Appellee
publishes an illustration created by tracing another person's illustration as his/her
original work, and it implies the possibility that the Appellee's act may be que stionable
under the Copyright Act. In light of the fact that the Appellee is a professional illustrator,
such indication is important information to consumers who are to purchase illustrations
created by the Appellee, and thus, the act of posting Tweet 1-1 can be considered to berelated to a fact concerning public interest and be intended exclusively to promote
public interest.
(c) The next point to examine is whether the alleged fact is true or not. The importantpart of the fact alleged by Tweet 1-1 is that "Appellee's Illustration 1 was created bytracing Exhibit Otsu 1-2 Illustration." Comparing the illustration shown on page 1 of
8

Exhibit Ko 29, which is alleged by the Appellee to be the base of Appellee's Illustration
1, with Exhibit Otsu 1-2 Illustration (Exhibit Otsu 54), it is found that: these
illustrations are similar in composition; they are almost identical with each other interms of the line of the profile from the forehead to the neck; and they are also almost
identical with each other in terms of the angle of the neck and the position of the ear.
Accordingly, it is found that there is the same relationship between Appellee's
Illustration 1 and Exhibit Otsu 1-2. It is unlikely that these illustrations accidentally
become identical in terms of all these features.
On the other hand, as evidence showing that Appellee's Illustration 1 is not createdby tracing, the Appellee submitted a video taken on July 19, 2021, which is said torecord the scene where the Appellee created an illustration of a woman's profile (reenactment video; Exhibits Ko 44-1 and 44-2). According to evidence (Exhibits Otsu 15
and 67), although the illustration of a woman's profile created in the re-enactment video
was created on an occasion that was different from when Appellee's Illustration 1 wascreated, the angle of the neck and the position of the ear in this illustration are greatly
different from those in Exhibit Otsu 1-2 Illustration and their lines do not overlap withregard to the chin part.

In light of the fact that Exhibit Otsu 1-2 Illustration andAppellee's Illustration 1 are almost identical with each other in terms of the angle ofthe neck and the position of the ear as mentioned above, it is found that the angle of theneck and the position of the ear in the illustration of a woman's profile created in there-enactment video would also be greatly different from those in Appellee's Illustration
1 and their lines would not overlap with regard to the chin part. This means that thedifference as described above occurred although it is presumed that the Appellee tried
to re-enact the process of creating Appellee's Illustration 1, and hence, even if the re enactment video is taken into consideration, it is appropriate to find that it is difficult
for the lines, the angle of the neck, and the position of the ear of the woman's profile inAppellee's Illustration 1 created by the Appellee to accidentally become identical withthose in Exhibit Otsu 1-2 Illustration.
In addition, since Exhibit Otsu 1-2 Illustration was published on September 1, 2017
(Exhibits Otsu 14-1 and 14-2), it was in the public domain around February 2018, whenthe Appellee received an order which led to the creation of an illustration of a woman's
profile (Exhibit Ko 26), and thus, it was possible for the Appellee to refer to Exhibit
Otsu 1-2 Illustration when creating Appellee's Illustration 1.
Taking all these points into account, it is highly probable that the alleged fact that
"Appellee's Illustration 1 was created by tracing Exhibit Otsu 1-2 Illustration" is true.
(d) As mentioned in (1) above, in order to find that the "violation of the rights is9

obvious," which is the requirement for demanding the disclosure of identification
information of the sender, allegations and evidence are required with regard to not only
the fact that the rights of the person demanding the disclosure have been violated by
the distribution of the violating information, but also the fact that there are no suchcircumstances suggesting the existence of justifiable cause for noncompliance with thelaw. It must be said that with regard to defamation by the posting of Tweet 1 -1, it is not
sufficiently proved that there are no such circumstances suggesting the existence ofjustifiable cause for noncompliance with the law.
Accordingly, with regard to defamation by the posting of Tweet 1-1, it is not foundthat the "violation of the right is obvious."(4) Regarding violation of the copyright (right of reproduction, right to make anautomatic public transmission)
A. Poster 1 posted Tweet 1-1 without obtaining permission from the Appellee (ExhibitKo 9), and it can be said that by doing so, Poster 1 reproduced the image data ofAppellee's Illustration 1 on Twitter's server and made it available for transmission.
B. The Appellant alleges that the use of Appellee's Illustration 1 mentioned in A. above
constitutes "quotation" and it is therefore legal. This allegation is examined as follows.
In order to be a legal "quotation," the work in question must be quoted [i] cons istent
with fair practices and [ii] within a scope that is justified for the purpose of news
reporting, critique, study, or other place in which the work is quoted (Article 32,
paragraph (1) of the Copyright Act).
C. (a) Looking at Tweet 1-1, as mentioned in (2) above, it consists of two images eachcreated by overlaying Exhibit Otsu 1-2 Illustration and Appellee's Illustration 1 one on
the other, and the following texts:"これどうだろう ww [What about this? (laugh)];and "ゆるーくトレス？ 普通にオリジナルで描いてもここまで比率が同じにな
るかな [Roughly traced? Would the ratio be so close even when an illustration is drawn
as an original in a normal manner?]." It is found that Tweet 1-1 alleges that Appellee's
Illustration 1 created by the Appellee was created by tracing Exhibit Otsu 1 -2
Illustration, and it is intended to verify and criticize Appellee's Illustration 1. Therefore,
it can be said that Poster 1 used Appellee's Illustration 1 for the purpose of critique.
(b) a. Next, the Appellee's illustrations are used in Tweet 1-1 as follows: Appellee's
Illustration 1 is displayed in a manner that Exhibit Otsu 1-2 Illustration is overlaid on
it (Posted Images 1-1-2 and 1-1-3); and multiple illustrations created by the Appellee,
including Appellee's Illustration 1, are shown side by side (Posted Image 1-1-4). These
images together with the image of Exhibit Otsu 1-2 Illustration (Posted Image 1-1-1)
are attached to the texts mentioned in (a) above. On the timeline, they are displayed as10

indicated in 1 of the List of Timelines attached to the judgment in prior instance; theimage data of the abovementioned four images is displayed only partially depending on
the specification of Twitter or the specification of the client app for displaying tweets,
and Posted Images 1-1-1 to 1-1-4 are displayed in full as they are when each image isclicked.
b. Posted Image 1-1-4 contains two illustrations of a woman's profile created by theAppellee. One of these is Appellee's Illustration 1, and the other is found to be a
reproduction or adaptation of the Appellee's illustrations. Therefore, it is necessary to
use Posted Image 1-1-4 as it is together with Posted Image 1-1-1 (Exhibit Otsu 1-2
Illustration) in order to verify similarity of the illustrations, and it can be said that
Posted Image 1-1-4 is used in a manner that can ensure objectivity to a greater extent
than expressions only by means of texts.
c. Posted Images 1-1-2 and 1-1-3 are images each consisting of Exhibit Otsu 1-2
Illustration and Appellee's Illustration 1 which are overlaid on each other. In the courseof examining the similarity of two illustrations or images, if two illustrations areoverlaid in a manner that each illustration can be distinguished, it can be said that these
illustrations are used in a manner that is convenient for verification and can ensu reobjectivity. In addition, the image of the app that suggests that the color density of eachillustration has been adjusted is indicated at the lower part of those posted images,
showing these images in a manner that enables the viewers to see that they are twooverlaid illustrations and that the color density has been adjusted. In the present case,the color of Exhibit Otsu 1-2 Illustration is darker in Posted Image 1-1-2, whereas thecolor of Appellee's Illustration 2 is darker in Posted Image 1-1-3. Such method ofshowing images can be considered to be helpful for comparing two overlaid illustrations
in one image while distinguishing each illustration.
d. Accordingly, it can be said that for general readers of Tweet 1-1, the manner in which
the Appellee's illustrations are used in Tweet 1-1 is convenient for examining thecontent of the article and can ensure objectivity.
In view of such manner of use, there are no such circumstances suggesting that theillustrations created by the Appellee are used in Tweet 1-1 for purposes such as theindependent object of appreciation, and hence, it cannot be said that these illustrations
are used beyond the purpose of verification of Appellee's Illustration 1 and Exhibit Otsu
1-2 Illustration through comparison.
e. Consequently, it is appropriate to find that the use of the Appellee's illustrations in
Tweet 1-1 is conducted within a scope that is justified for critique, which is the purposeof quotation referred to in (a) above.
11

(c) According to evidence (Exhibits Otsu 5-1 to 5-5, 60, 63, 89, 110-1, 120-4 and 1205), when alleging a fact that a person may have possibly created an illustration, etc. bytracing an illustration or photograph covered by a third party's copyright, it is a widely
applied practice to [i] show, in an article, the illustration, etc. in question and theoriginal illustration that may have been used for tracing, for the purpose of comparison,as they are or focusing only on the parts that are necessary for comparison, or [ii] show
the two illustrations by overlaying one on the other. Furthermore, as mentioned in (b)above, such manner of showing the illustrations can be regarded as a method that isconvenient for general readers of Tweet 1-1 when examining the content of the article
and that can ensure objectivity.
In addition to the above, as explained in (5) below, the use of the Appellee's
illustrations in Tweet 1-1 cannot be considered to be illegal from the perspective of
violation of the right to integrity as well, and in light of this, it can be said that attaching
the illustrations created by the Appellee to Tweet 1-1 is consistent with fair practices.
(d) Accordingly, the use of the Appellee's illustrations in Tweet 1-1 is legal as"quotation."
D. According to the above, with regard to violation of the copyright by the posting of
Tweet 1-1, it is not found that the "violation of the right is obvious."(5) Regarding violation of the moral rights of an author (right to integrity)
A. As mentioned in (2) above, [i] among the images attached to Tweet 1-1, Posted
Images 1-1-2 and 1-1-3 consist of Appellee's Illustration 1 and Exhibit Otsu 1-2
Illustration which are overlaid on each other, and [ii] Posted Images 1 -1-2 to 1-1-4 in
Tweet 1-1 displayed on the timeline of Twitter only partially show the illustrations
created by the Appellee. Therefore, there is room to consider that these posted images
are created through modification or cutting of the Appellee's illustrations.
B. However, regarding [i], the works in question are illustrations, and the method ofusing them by overlaying one on the other is convenient for critique, which is the
purpose of quotation, and can ensure objectivity. In light of the purpose and manner ofuse in addition to this point, it can be said that the use of these illustrations is a"modification that is found to be unavoidable" as referred to in Article 20, paragraph(2), item (iv) of the Copyright Act.
C. Next, regarding [ii], according to evidence (Exhibit Ko 49; Exhibits Otsu 113 to 119,120-1, 120-2, 121-1 and 121-2), the following facts can be found. How a tweet isdisplayed on the timeline of Twitter depends on the specification of Twitter or the
specification of the client app for displaying tweets, and it cannot be freely set byposters; therefore, at the time of posting a tweet, the poster is unable to know how
12his/her tweet would be displayed. After a tweet is posted, when there is a change to thespecification of Twitter or the specification of the client app for displaying tweets, how
the tweet is displayed on the timeline would also change. Image data attached to a tweet
is downloaded onto the terminal of the user who views the tweet, and when the user
clicks the image on the timeline, the entirety of the image would be displayed. In lightof these facts, setting aside the issue as to whether the poster can be regarded as the
person who carried out the modification, if the image is displayed only partially on thetimeline, it should be deemed to be a "modification that is found to be unavoidable"
when using Twitter.
D. Accordingly, regarding violation of the moral rights of an author (violation of theright to integrity) by the posting of Tweet 1-1, it is not found that the "violation of theright is obvious."(6) Regarding violation of the business right
As mentioned in (3) to (5) above, it cannot be said that the violation of the right tohonor, copyright, and moral rights of an author by the posting of Tweet 1-1 is obvious,
nor can it be said that the posting of Tweet 1-1 by Poster 1 is illegal, and therefore,
regarding violation of the business right by the posting of Tweet 1-1 as well, it is notfound that the "violation of the right is obvious."(7) Consequently, it is not found that the "violation of the rights" by the posting of
Tweet 1-1 "is obvious."
2. Issue 1-2 (Whether the violation of the rights by the posting of Tweet 1-2 is obvious)(1) Regarding Tweet 1-2
According to evidence (Exhibits Ko 1-1, 2-1 to 2-5, 37-1 and 37-2; Exhibits Otsu
2-1 to 2-5), Tweet 1-2 was posted by Poster 1 at 1:31 a.m. on April 5, 2020. It consistsof the texts, "この鏡餅も画像検索ですぐ出てきた。[This kagami-mochi was foundright away by image search.]", "トレス常習犯ですわ。[A habitual tracer.]" and "Ｙ′
さ ん [Y'-san]", and the following images: [i] an image of the Appellee's tweet
containing Appellee's Illustration 2 (Posted Image 1-2-1); [ii] an image containing
Exhibit Otsu 2-3 Photograph (Posted Image 1-2-2); and [iii] two images each createdby overlaying Appellee's Illustration 2 and Exhibit Otsu 2-3 Photograph one on theother (Posted Images 1-2-3 and 1-2-4). Tweet 1-2 is displayed on the timeline asindicated in 2 of the List of Timelines attached to the judgment in prior instance, and it
is found that each of Posted Images 1-2-1 to 1-2-4 is displayed only partially on thetimeline. Posted Image 1-2-2 is an image of a page for selling "porcelain kagami-mochi(unique kagami-mochi)" on Rakuten-Ichiba shopping site, and it contains thephotograph of the product, "porcelain kagami-mochi" (Exhibit Otsu 2-3 Photograph)
13

(Exhibit Ko 2-3; Exhibit Otsu 2-3).
(2) Regarding defamation
A. As mentioned in (1) above, in Tweet 1-2, the texts, "トレス常習犯ですわ。[Ahabitual tracer.]" and "Ｙ′さん [Y'-san]", are posted together with two images eachconsisting of Appellee's Illustration 2 and Exhibit 2-3 Photograph which are overlaid
on each other. The term "常習犯" has a meaning of a criminal offense, and it also hasa meaning of "repeating the same wrongdoing, or a person who does so" (Kojien,
seventh edition). On the basis of the ordinary care and way of reading of general readers,
it is understood that the term "常習犯" is used with the latter meaning in Tweet 1-2,
and the abovementioned texts are found to mean that the Appellee who acts under the
pen name of "Y'" "repeatedly created illustrations by performing the act of tracing andpublished them as his/her original illustrations." Then, in light of the fact that theAppellee has acted as a professional illustrator, Tweet 1-2 means that the Appellee, anillustrator, repeatedly engaged in publishing an illustration created by tracing anotherperson's illustration as his/her original work, which is questionable under the CopyrightAct, and it is a fact that can sufficiently make prospective purchasers of the Appellee's
works pause in purchasing works from such illustrator. Therefore, it is found that theAppellee's social reputation as an illustrator has been undermined due to the allegationof that fact through the posting of Tweet 1-2 by Poster 1. On the basis of the ordinary
care and way of reading of general readers, the fact that the Appellee "repeatedly createdillustrations by performing the act of tracing and published them as his/her originalillustrations" can be regarded as a specific matter concerning another person that canbe proved to be true or false by evidence, etc., and hence, Tweet 1-2 constitutes anallegation of a fact meaning a specific matter concerning the Appellee.
B. The next question is whether there is justifiable cause for noncompliance with th elaw with regard to the posting of Tweet 1-2.
(a) As mentioned in (1) above, Tweet 1-2 consists of an image created by overlaying
Appellee's Illustration 2 and Exhibit Otsu 2-3 Photograph one on the other, with thetexts, "トレス常習犯ですわ。[A habitual tracer.]" and "Ｙ′さん [Y'-san]." Taking
all these into account, Tweet 1-2 is interpreted as alleging a fact that the Appellee, who
is called "Y'," "repeatedly created illustrations by performing the act of tracing andpublished them as his/her original illustrations," and also alleging that Appellee's
Illustration 2 attached to that tweet, was created by tracing Exhibit Otsu 2-3 Photograph,and this supports the alleged fact. Therefore, the important part of the alleged fact isthat [i] Appellee's Illustration 2 was created by tracing Exhibit Otsu 2-3 Photograph,and [ii] the Appellee repeatedly created illustrations by performing the act of tracing
14

and published them as his/her original illustrations.
(b) Examination is made on the premise of the above. Appellee's Illustration 2 andExhibit Otsu 2-3 Photograph are identical with each other in terms of the kagami-mochi,
the mikan (citrus) put on top of the kagami-mochi, and the shapes, color tone and linesof the leaves of the mikan. Furthermore, when the sizes of the kagami-mochi inAppellee's Illustration 2 and Exhibit Otsu 2-3 Photograph are adjusted to be the same,the illustration and the photograph are also identical with each other in terms of theplate on which the kagami-mochi is placed, specifically, the position, length of depth,
thickness, and brown color. It is very unlikely that all these features become identicalaccidentally, and it is appropriate to find that Appellee's Illustration 2 was created bytracing Exhibit Otsu 2-3 Photograph.
In this respect, the Appellee alleges that Appellee's Illustration 2 was created bymaking reference to an illustration, etc. of kagami-mochi that is different from Exhibit
Otsu 2-3 Photograph, and that it was not created by tracing another person's photograph,etc. However, according to evidence (Exhibit Otsu 17), it is found that: when "kagami mochi" was searched by image search on Google on July 3, 2020, Exhibit Otsu 2 -3
Photograph was displayed first; and among kagami-mochi observed in more than 30
pieces of images displayed as the search results, the kagami-mochi in Exhibit Otsu 2-3
Photograph is the only one that is identical with the kagami-mochi in Appellee's
Illustration 2 in terms of the number and shape of the leaves of the mikan put on top of
the kagami-mochi, and the kagami-mochi in Exhibit Otsu 2-3 Photograph is the only
one that is identical with the kagami-mochi in Appellee's Illustration 2 in terms of theratio in size between the mikan and the kagami-mochi and the ratio between the kagamimochi and the plate placed thereunder. Furthermore, the Appellee submitted a roughsketch of Appellee's Illustration 2 (Exhibit Ko 19) and also submitted a video taken torecord the scene where the Appellee created an illustration in the same manner as that
the Appellee had created Appellee's Illustration 2 (Exhibit Ko 45). Both of these articles
of evidence were created after the posting of Tweet 1-2. Moreover, in theabovementioned rough sketch and the illustration created in the abovementioned video,
it is found that the Appellee drew a picture by putting two axisymmetric oval figureswith different sizes one above the other and putting an approximate circle on top ofthem. The kagami-mochi in Appellee's Illustration 2 does not consist of suchaxisymmetric oval figures, and the mikan in Appellee's Illustration 2 cannot be deemed
to be an approximate circle. In addition, the position of the line drawn underneath the
kagami-mochi and the shape of the leaves of the mikan in the abovementioned roughsketch are different from the line of the plate placed underneath the kagami-mochi and15the shape of the leaves of the mikan in Appellee's Illustration 2. The number and shapeof the leaves of the mikan in the illustration created in the abovementioned video are
different from those of the leaves of the mikan in Appellee's Illustration 2. Therefore,
even if drawing is continued using the abovementioned rough sketch or the illustration
created in the abovementioned video, it cannot be presumed that an illustration that is
the same as Appellee's Illustration 2 would be completed. Accordingly, the Appellee's
allegation mentioned above cannot be accepted.
(c) According to evidence (Exhibits Otsu 2-1, 16-1 to 16-11, 86-1 and 86-2), it is foundthat the Appellee, at least on multiple occasions, created illustrations by tracing otherpersons' photographs or illustrations, and published them on Twitter or the blog site as
his/her original illustrations with his/her signature affixed thereto. Furthermore, as
mentioned in 1(3) above, it is highly probable that the alleged fact that "Appellee's
Illustration 1 was created by tracing Exhibit Otsu 1-2" is true.
(d) Taking all these points into account, it is found that the Appellee repeatedly createdillustrations by tracing other persons' photographs and illustrations and published themas his/her original illustrations. Therefore, it is highly possible that the alleged fact that
the Appellee repeatedly created illustrations by performing the act of tracing andpublished them as his/her original illustrations is true.
(e) In light of the facts that the Appellee is a professional illustrator and that Tweet 1 -2
was posted on the same thread as Tweet 1-1, the act of posting Tweet 1-2 can beconsidered to be related to a fact concerning public interest and be intended exclusively
to promote public interest, as in the case of the act of posting Tweet 1 -1.
(f) According to the above, it must be said that with regard to defamation by the postingof Tweet 1-2, it is not sufficiently proved that there are no such circumstancessuggesting the existence of justifiable cause for noncompliance with the law.
Accordingly, with regard to defamation by the posting of Tweet 1-2, it is not foundthat the "violation of the right is obvious."(3) Regarding violation of the copyright (right of reproduction, right of automatic public
transmission)
A. Poster 1 posted Tweet 1-2 without obtaining permission from the Appellee, and it
can be said that by doing so, Poster 1 reproduced the image data of Appellee's
Illustration 2 on Twitter's server and made it available for transmission.
B. The Appellant alleges that the use of Appellee's Illustration 2 mentioned in A. above
constitutes "quotation" and it is therefore legal. This allegation is examined as follows.
(a) Looking at Tweet 1-2, as mentioned in (1) above, it consists of two images createdby overlaying Exhibit Otsu 2-3 Photograph and Appellee's Illustration 2 one on the16other, and the following texts: "この鏡餅も画像検索ですぐ出てきた。[This kagamimochi was found right away by image search.]"; "トレス常習犯ですわ。[A habitual
tracer.]"; and "Ｙ′さん [Y'-san]." Tweet 1-2 alleges that the Appellee, who is calledY', repeatedly created illustrations by performing the act of tracing and published themas his/her original illustrations. By presenting Appellee's Illustration 2 and Exhibit Otsu
2-3 Photograph as evidence supporting that allegation, Tweet 1-2 is intended to verify
that Appellee's Illustration 2 was created by tracing Exhibit Otsu 2-3 Photograph, which
is an image of kagami-mochi displayed at once by image search, and thereby criticize
it. Therefore, it can be said that Poster 1 used Appellee's Illustration 2 for the purposeof critique.
(b) a. Next, the Appellee's illustrations are used in Tweet 1-2 as follows: Appellee's
Illustration 2 is displayed in a manner that Exhibit Otsu 2-3 Photograph is overlaid on
it (Posted Images 1-2-3 and 1-2-4); and Appellee's Illustration 2 is contained in theimage of the tweet by the Appellee (Posted Image 1-2-1). These images together with
the image including Exhibit Otsu 2-3 Photograph (Posted Image 1-2-2) are attached tothe texts mentioned above. On the timeline, as indicated in 2 of the List of Timelines
attached to the judgment in prior instance, the image data of the abovementioned four
images is displayed only partially depending on the specification of Twitter or the
specification of the client app for displaying tweets, and Posted Images 1-2-1 to 1-2-4
are displayed as they are when each image is clicked.
b. As mentioned in (a) above, the abovementioned images are used for the purpose ofverifying that Appellee's Illustration 2 was created by tracing Exhibit Otsu 2 -3
Photograph. It is necessary to use Posted Image 1-2-1, which is the image of the tweet
containing Appellee's Illustration 2 posted by the Appellee, as it is, together with Posted
Image 1-2-2, which contains Exhibit Otsu 2-3 Photograph to be compared with theformer, in order to verify similarity of the illustration and the photograph by indicating
the sources thereof, and it can be said that Posted Image 1-2-1 is used in a manner thatcan ensure objectivity to a greater extent than expressions only by means of texts.
c. Posted Images 1-2-3 and 1-2-4 show Exhibit Otsu 2-3 Photograph and Appellee's
Illustration 2 which are overlaid on each other. In Posted Image 1-2-3, Appellee's
Illustration 2 with high transparency is overlaid on Exhibit Otsu 2-3 Photograph, andin Posted Image 1-2-4, Appellee's Illustration 2 that is adjusted to show only the darkcolor part in purple is overlaid on Exhibit Otsu 2-3 Photograph. Thus, both posted
images are displayed in a manner that it is easily recognized that the color tone ofAppellee's Illustration 2 is adjusted. In the course of examining the similarity of anillustration and a photograph, overlaying the illustration and photograph one on the17other in a manner that each can be distinguished can be regarded as a method that isconvenient for verification and can ensure objectivity. In the present case, in Posted
Image 1-2-3, the color tone of Appellee's Illustration 2 is maintained and its color isturned light, and in Posted Image 1-2-4, the color tone of Appellee's Illustration 2 ischanged. Such method of showing images consisting of an illustration and a photographwhich are overlaid on each other can be considered to be helpful for distinguishing each.
d. Accordingly, it can be said that for general readers of Tweet 1-2, the manner in which
Appellee's Illustration 2 is used in Tweet 1-2 is convenient for examining the content
of the article and can ensure objectivity.
In view of such manner of use, there are no such circumstances suggesting that
Appellee's Illustration 2 is used in Tweet 1-2 for purposes such as the independent
object of appreciation, and hence, it cannot be said that Appellee's Illustration 2 is usedbeyond the purpose of verification of Appellee's Illustration 2 and Exhibit Otsu 2 -3
Photograph through comparison.
e. Consequently, it is appropriate to find that the use of the Appellee's illustrations in
Tweet 1-2 is conducted within a scope that is justified for critique, which is the purposeof quotation referred to in (a) above.
(c) As mentioned in 1. (4) C. (c) above, considering that violation of the moral rights
of an author (right to integrity) cannot be found as explained in (4) below, the use ofAppellee's Illustration 2 in Tweet 1-2 can be considered to be consistent with fair
practices.
(d) Accordingly, the use of Appellee's Illustration 2 in Tweet 1-2 is legal as "quotation."
C. According to the above, with regard to violation of the copyright by the posting of
Tweet 1-2, it is not found that the "violation of the right is obvious."(4) Regarding violation of the moral rights of an author (right to integrity)
As mentioned in (1) above, [i] Posted Images 1-2-3 and 1-2-4 show Appellee's
Illustration 2 and Exhibit Otsu 2-3 Photograph which are overlaid on each other, and[ii] on the timeline of Twitter, Appellee's Illustration 2 is only partially displayed in
Posted Images 1-2-1, 1-2-3, and 1-2-4. Therefore, there is room to consider that theseposted images are created through modification or cutting of Appellee's Illustration 2.
However, as explained in 1. (5) above, it can be said that for all of these images, theuse of the illustration is a "modification that is found to be unavoidable" as referred toin Article 20, paragraph (2), item (iv) of the Copyright Act.
Accordingly, regarding violation of the moral rights of an author (violation of theright to integrity) by the posting of Tweet 1-2, it is not found that the "violation of theright is obvious."18

(5) Regarding violation of the business right
As mentioned in (2) to (4) above, it cannot be said that the violation of the right tohonor, copyright, and moral rights of an author by the posting of Tweet 1-2 is obvious,
nor can it be said that the posting of Tweet 1-2 by Poster 1 is illegal, and therefore,
regarding violation of the business right by the posting of Tweet 1-2, it is not found thatthe "violation of the right is obvious."(6) Consequently, it is not found that the "violation of the rights" by the posting of
Tweet 1-2 "is obvious."
3. Issue 1-3 (Whether the violation of the rights by the posting of Tweet 2-1 is obvious)(1) According to evidence (Exhibits Ko 3-1 to 3-3, 38-1 and 38-2; Exhibits Otsu 3-1 to3-3), Tweet 2-1 was posted by Poster 2 at 7:21 p.m. on April 7, 2020. It consists of thetexts, "Ｙ′様がトレースを否定するツイートをされたようです[Y'-sama posted atweet to deny his/her tracing]", "それを信じているファンの皆様 [To his/her fans
who believe this tweet]", "一度こちらのイラストを見て下さい[Please take a lookat this illustration]", "これもまた、Ｙ′様が描いたイラストです[This is also an
illustration drawn by Y'-sama]", and "横顔のイラストと比較し、画力の差に違和感を感じませんか？[Comparing his/her illustration of a profile, don't you feel odd about
the difference in the abilities to draw?]", and the following images: [i] Appellee's
Illustration 3 (Posted Image 2-1-1), and [ii] Appellee's Illustration 4 (Posted Image 21-2). It is found that Tweet 2-1 is displayed on the timeline as indicated in 3 of the Listof Timelines attached to the judgment in prior instance.
(2) Regarding violation of the copyright (right of reproduction, right of automatic public
transmission)
A. Poster 2 posted Tweet 2-1 without obtaining permission from the Appellee (ExhibitKo 9), and it can be said that by doing so, Poster 2 reproduced the image data ofAppellee's Illustrations 3 and 4 on Twitter's server and made them available fortransmission.
B. The Appellant alleges that the use of Appellee's Illustrations 3 and 4 mentioned in A.
above constitutes "quotation" and it is therefore legal. This allegation is examined asfollows.
(a) Looking at Tweet 2-1, as mentioned in (1) above, it consists of two images, which
are Appellee's Illustrations 3 and 4, and the following texts: "Ｙ′様がトレースを否定するツイートをされたようです[Y'-sama posted a tweet to deny his/her tracing]";"それを信じているファンの皆様 [To his/her fans who believe this tweet]"; "一度
こちらのイラストを見て下さい[Please take a look at this illustration]"; "これもまた、Ｙ′様が描いたイラストです[This is also an illustration drawn by Y'-sama]";19

and "横顔のイラストと比較し、画力の差に違和感を感じませんか？[Comparing
his/her illustration of a profile, don't you feel odd about the difference in the abilities
to draw?]." Following Tweet 2-1, Tweet 2-2 was posted in the same thread, andAppellee's Illustration 5, in which six illustrations of a woman's profile c reated by theAppellee are shown side-by-side (Exhibit Ko 4-3; Exhibit Otsu 4-3; these six
illustrations are found to have been created by reproducing or adapting Appellee's
Illustration 1 in light of their similarity) is attached to Tweet 2-2. Taking this into
consideration along with the abovementioned texts, it is found that Tweet 2 -1 isintended to criticize the Appellee for posting a tweet to deny his/her act of tracing, andto point out that in light of the Appellee's ability to draw, which is observed inillustrations other than the illustrations of a woman's profile contained in Appellee's
Illustration 5, these illustrations of a woman's profile are unnatural because they appear
to have been created by a person with a greater ability to draw, with a view to verifyingthat the abovementioned illustrations of a woman's profile were created by the act oftracing. It is appropriate to find that as in the case of Tweets 1-1 and 1-2, the term"tracing" used herein refers to displaying the original illustration or photograph anddirectly copying it by following its lines, using a tool such as an app for creating
illustrations.
Accordingly, it is appropriate to find that Poster 2 used Appellee's Illustrations 3
and 4 in Tweet 2-1 for the purpose of critique.

The Appellee alleges that Poster 2

quoted Appellee's Illustrations 3 and 4 for unjust purposes. However, as mentioned in
1. (3) and 2. (2) above, it is highly probable that Appellee's Illustration 1 was createdby tracing Exhibit Otsu 1-2 Illustration, and the Appellee repeatedly createdillustrations by tracing other persons' photographs and illustrations and published themas his/her original illustrations. It is not found that Poster 2 posted Tweet 2-1 for unjust
purposes such as libeling the Appellee by groundlessly posting a tweet that implies that
the Appellee engaged in illegal conduct. Therefore, it cannot be said that Poster 2 posted
Tweet 2-1 by attaching Appellee's Illustrations 3 and 4 to it for unjust purposes.
(b) Next, the Appellee's illustrations are used in Tweet 2-1 as follows. Appellee's
Illustrations 3 and 4 are attached to this tweet as they are. As mentioned in (a) above,
Poster 2 intends to show that the illustrations of a woman's profile created by theAppellee, which are contained in Appellee's Illustration 5, are unnatural in terms of theability to draw when compared with other illustrations created by the Appellee, with aview to verifying that the abovementioned illustrations of a woman's profile werecreated by the act of tracing. In order to assess the Appellee's ability to draw, which isobserved in the illustrations other than the illustrations of a woman's profile, it is20appropriate to comparatively observe multiple illustrations created by the Appellee. In
light of the manner of use as described above, it cannot be said that Appellee's
Illustrations 3 and 4 are used in Tweet 2-1 beyond the purpose of verifying theAppellee's ability to draw.
In this respect, the Appellee alleges that since Posted Image 2-1-2 (Appellee's
Illustration 4) significantly differs from Appellee's Illustration 1 in terms of thecomposition, there is little need to quote that image and the posting thereof cannot be
deemed to be within a scope that is justified for the purpose of quotation. However, as
mentioned in (a) above, the purpose of quotation is to point out that in light of theAppellee's ability to draw, the illustrations of a woman's profile contained in Appellee's
Illustration 5 are unnatural because they appear to have been created by a person witha greater ability to draw, with a view to verifying that the abovementioned illustrationsof a woman's profile were created by the act of tracing. As mentioned above, in order
to assess the Appellee's ability to draw, it is appropriate to comparatively observe
multiple illustrations created by the Appellee, and it is difficult to assess the Appellee'sability to draw only from one illustration created by the Appellee. Therefore, it cannot
be said that there is no need to quote Appellee's Illustration 4, and hence the Appellee's
allegation mentioned above cannot be accepted.
Consequently, it can be said that the use of Appellee's Illustrations 3 and 4 in Tweet
2-1 is conducted within a scope that is justified for the purpose of quotation.
(c) There are no such circumstances under which the use of Appellee's Illustrations 3
and 4 in Tweet 2-1 is found to be contrary to fair practices.
(d) Accordingly, the use of Appellee's Illustrations 3 and 4 in Tweet 2-1 is legal as"quotation."
C. Consequently, with regard to violation of the copyright by the posting of Tweet 2 -1,
it is not found that the "violation of the right is obvious."(3) Regarding violation of the business right
As mentioned in (2) above, it cannot be said that the violation of the copyright by
the posting of Tweet 2-1 is obvious, nor can it be said that the posting of Tweet 2-1 byPoster 2 is illegal, and therefore, regarding violation of the business right by the postingof Tweet 2-1, it is not found that the "violation of the right is obvious."(4) Consequently, it is not found that the "violation of the rights" by the posting of
Tweet 2-1 "is obvious."
4. Issue 1-4 (Whether the violation of the rights by the posting of Tweet 2-2 is obvious)(1) According to evidence (Exhibits Ko 4-1 to 4-3, 38-1 and 38-2; Exhibits Otsu 4-1 to4-3), Tweet 2-2 was posted by Poster 2 at 7:26 p.m. on April 7, 2020, following Tweet
212-1 in the same thread as this tweet. It consists of the texts, "特に横顔同士で比較してみてください[Compare the illustrations focusing on the profile]", "左の絵には鼻と唇の間に不自然な山があり「横顔がどうなっているか」という基本的なデッサンを理解していない方が描いたようにしか見えません[In the picture on the left,
there is an unnatural mountain between the nose and the lip, and this picture definitely
appears to have been drawn by a person who does not understand the basics of drawing
as to how to draw a person's profile]", "Ｙ′様は他のイラストでも手が描けない方です[Y'-sama cannot draw hands in other illustrations]", "それでもトレースしていな い 、 と い う 主 張 を 信 じ ら れ る で し ょ う か [Can you still believe Y'-sama's
allegation that he/she does not trace others' illustrations?]", and the following images:[i] Appellee's Illustration 3, with a red box put to surround the part of the mouth (Posted
Image 2-2-1); and [ii] Appellee's Illustration 5, in which six illustrations of a woman's
profile created by the Appellee are shown side-by-side (Posted Image 2-2-2). Tweet 22 is displayed on the timeline as indicated in 4 of the List of Timelines attached to the
judgment in prior instance, and it is found that Posted Image 2-2-2 is displayed only
partially on the timeline.
(2) Regarding violation of the copyright (right of reproduction, right of automatic public
transmission)
A. Poster 2 posted Tweet 2-2 without obtaining permission from the Appellee (ExhibitKo 9), and it can be said that by doing so, Poster 2 reproduced the image data ofAppellee's Illustrations 3 and 5 on Twitter's server and made it available fortransmission.
B. The Appellant alleges that the use of Appellee's Illustrations 3 and 5 mentioned in A.
above constitutes "quotation" and it is therefore legal. This allegation is examined asfollows.
(a) Looking at Tweet 2-2-, as mentioned in (1) above, it consists of Appellee's
Illustration 3, with a red box put to surround the part of the mouth, and Appellee's
Illustration 5, and the following texts: "特 に 横顔 同士 で 比較 して みて くだ さ い[Compare the illustrations focusing on the profile]"; "左の絵には鼻と唇の間に不自然な山があり「横顔がどうなっているか」という基本的なデッサンを理解していない方が描いたようにしか見えません [In the picture on the left, there is an
unnatural mountain between the nose and the lip, and this picture definitely appears t ohave been drawn by a person who does not understand the basics of drawing as to how
to draw a person's profile]"; "Ｙ′様は他のイラストでも手が描けない方です[Y'sama cannot draw hands in other illustrations]"; "それでもトレースしていない、という主張を信じられるでしょうか[Can you still believe Y'-sama's allegation that22

he/she does not trace others' illustrations?]." In light of the content of these texts andthe fact that Tweet 2-2 was posted following Tweet 2-1 in the same thread, it is foundthat Tweet 2-2 is intended to criticize the Appellee for posting a tweet to deny his/her
act of tracing, and to point out that the illustrations of a woman's profile contained inAppellee's Illustration 5 are unnatural because they appear to have been created by aperson with a greater ability to draw, with a view to verifying that the abovementioned
illustrations of a woman's profile were created by the act of tracing.
Accordingly, it is appropriate to find that Poster 2 used Appellee's Illustrations 3
and 5 in Tweet 2-2 for the purpose of critique.
(b) Next, the Appellee's illustrations are used in Tweet 2-2 as follows. Appellee's
Illustration 3 is attached to this tweet, with a red box put to surround the part of themouth, and Appellee's Illustration 5 is attached to the same as it is. As mentioned in (a)above, Poster 2 intends to show that the illustrations of a woman's profile created by
the Appellee, which are contained in Appellee's Illustration 5, are unnatural in terms of
the ability to draw when compared with other illustrations created by the Appellee, witha view to verifying that the abovementioned illustrations of a woman's profile werecreated by the act of tracing. When an illustration in which multiple illustrations of awoman's profile that are suspected of having been created by the act of tracing areshown side-by-side (Appellee's Illustration 5) and an illustration to compare with theformer (Appellee's Illustration 3) are attached to a tweet, it can be said that these
illustrations are used in a manner that is convenient for comparing the ability to draw
and can ensure objectivity. In addition, putting a red box to surround the part thatparticularly needs to be compared can help in understanding Poster 2's arguments. That
red box is put in a manner that it can be easily distinguished from Appellee's Illustration
3 and it is not likely to cause confusion among general readers.
Accordingly, it can be said that for general readers of Tweet 2-2, the manner inwhich Appellee's Illustrations 3 and 5 are used in Tweet 2-2 is convenient for examining
the content of the article and can ensure objectivity. In view of such manner of use, itcannot be said that these illustrations are used beyond the purpose of verification of theAppellee's ability to draw.
Consequently, it can be said that the use of Appellee's Illustrations 3 and 5 in Tweet
2-2 is conducted within a scope that is justified for the purpose of quotation.
(c) In addition to the circumstances pointed out in (b) above, as explained in (3) below,
the use of Appellee's Illustrations 3 and 5 in Tweet 2-2 cannot be considered to be illegal
from the perspective of violation of the right to integrity as well, and in light of this, it
can be said that attaching Appellee's Illustrations 3 and 5 to Tweet 2-2 is consistent with23

fair practices.
(d) Accordingly, the use of Appellee's Illustrations 3 and 5 in Tweet 2-2 is legal as"quotation."
C. Consequently, with regard to violation of the copyright by the posting of Tweet 2 -2,
it is not found that the "violation of the right is obvious."(3) Regarding violation of the moral rights of an author (right to integrity)
As mentioned in (1) above, [i] Posted Image 2-2-1 is Appellee's Illustration 3 witha red box put to surround the part of the mouth, and [ii] Posted Image 2-2-2 displayedon the timeline of Twitter is displayed only partially. Therefore, there is room toconsider that these posted images are created through modification or cutting ofAppellee's Illustration 3 or 5. However, regarding [i], the use of the illustration can be
regarded as a modification within an extent necessary for indicating the part thatparticularly needs to be compared, and regarding [ii], for the same reason as thatmentioned in 1. (5) above, the use of the illustration can be regarded as a "modificationthat is found to be unavoidable" as referred to in Article 20, paragraph (2), item (iv) of
the Copyright Act.
Accordingly, regarding violation of the moral rights of an author (violation of theright to integrity) by the posting of Tweet 2-2, it is not found that the "violation of theright is obvious."(4) Regarding violation of the business right
As mentioned in (2) and (3) above, it cannot be said that the violation of the
copyright and moral rights of an author by the posting of Tweet 2-2 is obvious, nor canit be said that the posting of Tweet 2-2 by Poster 2 is illegal, and therefore, regarding
violation of the business right by the posting of Tweet 2-2, it is not found that the"violation of the right is obvious."(5) Consequently, it is not found that the "violation of the rights" by the posting of
Tweet 2-2 "is obvious."
No. 4. Conclusion
For the reasons stated above, all of the Appellee's claims are groundless and should
be dismissed. The judgment that partially upheld these claims is inappropriate and theappeal is well-grounded. Therefore, the part of the judgment in prior instance which isagainst the Appellant is revoked, the Appellee's claims concerning the revoked part are
dismissed, and the judgment is rendered as indicated in the main text.
Intellectual Property High Court, Second Division
Presiding judge: HONDA Tomonari
24

Judge: ASAI Ken
Judge: KATSUMATA Kumiko

25

Attachment
List of Identification Information of Senders
Information regarding the persons who posted the articles indicated in Attached List of
Posted Articles 1 and Attached List of Posted Articles 2, which falls under the following.
1. Among IP addresses used upon making logins to the accounts indicated in the username columns of Attached List of Posted Articles 1 and Attached List of Posted Articles
2, all of the IP addresses held by the Appellant which correspond to the logins madeduring the period from April 3 2020, until the end of conclusion of oral argument
2. The dates and times when the login information referred to in the preceding paragraph
was transmitted from the telecommunication facilities, to which the IP addresses
referred to in the preceding paragraph are assigned, to the specified telecommunication
facilities used by the Appellant
3 (1)The telephone number of the administrator of the account indicated in the username column in Attached List of Posted Articles 1(2) The email address of the administrator of the account indicated in the user namecolumn in Attached List of Posted Articles 1 (an email address used by a communi cation
method for sending correspondences and other information to mobile communication
terminal equipment, using a telephone number for sending and receiving)
4. The email address of the account administrator indicated in the user name column in
Attached List of Posted Articles 2 (an email address used by a communication methodthat uses simple mail transfer protocol entirely or partially)End

26

Attachment
List of Posted Articles 1
1. Tweet 1-1
URL for viewing

https:// (omitted hereinafter)

Name

B

User nameB'

Posting date and time

10:30 p.m. on April 3, 2020

Content of post

これどうだろう ww [What about this? (laugh)]
ゆるーくトレス？ 普通にオリジナルで描いてもここ ま で 比 率 が 同 じ に な る か な [Roughly traced?
Would the ratio be so close even when an illustration isdrawn as an original in a normal manner?]

2. Tweet 1-2
URL for viewing

https:// (omitted hereinafter)

Name

B

User nameB'

Posting date and time

1:31 a.m. on April 5, 2020

Content of post

この鏡餅も画像検索ですぐ出てきた。[This kagamimochi was found right away by image search.]
トレス常習犯ですわ。[A habitual tracer.]Ｙ′さん [Y'-san]End

27

Attachment
List of Posted Articles 2
1. Tweet 2-1
URL for viewing

https:// (omitted hereinafter)

Name

C

User nameC'

Posting date and time

7:21 p.m. on April 7, 2020

Content of post

"Ｙ′様がトレースを否定するツイートをされたようです[Y'-sama posted a tweet to deny his/her tracing]
それを信じているファンの皆様 [To his/her fans whobelieve this tweet]
一 度 こ ち ら の イ ラ ス ト を 見 て 下 さ い [Please take alook at this illustration]
これもまた、Ｙ′様が描いたイラストです [This isalso an illustration drawn by Y'-sama]
横顔のイラストと比較し、画力の差に違和感を感じませんか？[Comparing his/her illustration of a profile,
don't you feel odd about the difference in the abilities todraw?]

2. Tweet 2-2
URL for viewing

https:// (omitted hereinafter)

Name

C

User nameC'

Posting date and time

7:26 p.m. on April 7, 2020

Content of post

特に横顔同士で比較してみてください[Compare theillustrations focusing on the profile]
左の絵には鼻と唇の間に不自然な山があり「横顔がどうなっているか」という基本的なデッサンを理解していない方が描いたようにしか見えません[In the
picture on the left, there is an unnatural mountain between
the nose and the lip, and this picture definitely appears tohave been drawn by a person who does not understand thebasics of drawing as to how to draw a person's profile]
Ｙ′様は他のイラストでも手が描けない方です[Y'-28sama cannot draw hands in other illustrations]
それでもトレースしていない、という主張を信じられ る で し ょ う か [Can you still believe Y'-sama's
allegation that he/she does not trace others' illustrations?]End29