Copyright Date

March 28, 2024

Court

Case

2023 (Ne) 10093

Intellectual Property High
Court, Third Division

number- A case in which, with respect to an act of the Appellee making public on YouTubea part of the animation footage for which the Appellant participated in production,
without indicating the Appellant's name or shop name as the author, the court foundthat the animation footage is a cinematographic work and that its author is theAppellant but the copyright is vested in the Appellee,

and on the basis of thesefindings, the court did not recognize the infringement of the Appellant's copyright,
but affirmed that the Appellant's moral right of author (right of attribution) was
infringed, and partially granted the Appellant's claim of compensation for damages
against the Appellee.
Case type: Claim of Compensation for Damages
Result: Modification of the prior instance judgment
References: Article 2, paragraph (1), item (x), Article 2, paragraph (3), Article 16 andArticle 29, paragraph (1) of the Copyright Act
Judgment in prior instance: Tokyo District Court, 2021 (Wa) 12304
Summary of the Judgment
1. The Appellant (X), a sole proprietor engaged in businesses including the productionof animation, produced an animation video (the "Video") recorded in a DVD to be
attached to a book (the "Book") published by the Appellee, a publisher (Y), entrusted
by Y. The Book concerns epileptic seizures and is written by A, a doctor (hereinafter"Doctor A"). The Video is composed of a series of animation footage introducing 13
epileptic seizure cases.
Y made public a part of the Video (i.e., the portion of the DVD excluding the top
menu page; hereinafter the "Reproduction") on YouTube, without consent from X andwithout indicating X's name or shop name.
X instituted a lawsuit on the allegation that its copyright (right to transmit to the
public) and moral right of author (right of attribution) were infringed by the
aforementioned act of Y, demanding Y to pay 6,600,000 yen with the delay damages
accrued thereon as compensation for damages due to tort.
In the judgment in prior instance, the court granted X's claim in part to the extent
of awarding the damages in amount of 550,000 yen with the delay damages accrued
thereon. The court of prior instance found that the Video qualifies as a cinematographiciwork whose authorship is attributed to X and Doctor A, but that the copyright in theVideo is vested in Doctor A pursuant to Article 29, paragraph (1) of the Copyright Act.
The court did not recognize the alleged infringement of X's copyright, but affirmed theinfringement of X's moral right of author (right of attribution) by Y's act. X appealed
against this judgment in prior instance with respect to the portion of the claim dismissed.
Y did not file an appeal or incidental appeal.
2. In this judgment, the court held as follows, finding that X's copyright was not
infringed but X's moral right of author (right of attribution) was infringed. Based on
this finding, the court modified the judgment in prior instance based on X's appeal andgranted X's claim to the extent of awarding the damages in amount of 880,000 yen withthe delay damages accrued thereon.
(1) The Video can be considered as a work rendered in a manner that produces an audiovisual effect analogous to that of cinematography, creatively producing the expressionof thoughts or sentiments. Moreover, the Video is fixed into a physical object of a DVD.
Therefore, the Video is considered as a "work rendered in a manner that produces avisual or audio-visual effect analogous to that of cinematography, and that is fixed intoa physical object" as defined in Article 2, paragraph (3) of the Copyright Act, andtherefore qualifies as a cinematographic work (Article 10, paragraph (1), item (vii) of
the same Act).
(2) The court determines that the person who made a creative contribution to the overall
shaping of the cinematographic work through responsibility for its production, direction,
staging, filming, art direction, etc. of the Video is X. The involvement of Doctor A only
amounts to providing advice or suggesting ideas from the supervisory standpoint forthe production of the Video, not the creation of any specific expressions of the Video.
Therefore, Doctor A cannot be considered to have made any creative contribution to theoverall shaping of the cinematographic work through responsibility for its production,
direction, staging, filming, art direction, etc. of the Video. Accordingly, by theapplication of Article 16 of the Copyright Act, the authorship of the Video is attributed
to X (the court determined that X is the sole author, which is contrary to the finding of
the judgment in prior instance).
(3) A "producer of a cinematographic work" within the meaning of Article 29, paragraph(1) of the Copyright Act is "a person that does the conceptualizing and has the
responsibility in the production of a cinematographic work." (Article 2, paragraph (1),item (x) of the Copyright Act). In this regard, it is reasonable to understand the"producer of a cinematographic work" as a person or entity that has an intention to
produce a cinematographic work and has legal rights and obligations related to theiiproduction of the work, and as a consequence, becomes entitled to receive economic
benefits and bears costs associated with the production of the work.
Considering the following facts of the case, the court determined that the producerof the cinematographic work of the Video is Y. [i] It was Y that published the Book,
entered into a service agreement with X for the production of the Video, and was liable
to pay fees to X under the service agreement; [ii] Although Doctor A solicitedpurchasers of the Book to cover the publication costs, there is no sufficient evidence tosupport that Y and Doctor A had reached an agreement requiring Doctor A to make up
for the cost shortfall if Doctor A could not secure a sufficient number of purchasers tocover the publication costs, and the court finds that Y was in the position to eventually
make up for the cost shortfall in that case; and [iii] Considering that X acquired a fee
claim under the service agreement, and that there is no evidence that X was supposed
to give up the recovery of all or part of its fee claim if Doctor A could not solicit a
sufficient number of purchasers, Y should be reasonably considered as the person orentity that has an intention to produce a cinematographic work and that has legal rights
and obligations related to the production of the work, and as a consequence, becomes
entitled to receive economic benefits and bears costs associated with the production of
the work.
In addition, as X is found to have promised Y that X will participate in the
production of the Video, the copyright in the Video is vested in Y pursuant to Article
29, paragraph (1) of the Copyright Act. Consequently, there can be no infringement of
X's copyright by the act of Y.
(4) Considering the facts including that Y made public the Reproduction extracted fromthe Video on the Site in spite of the fact that X is the sole author of the Video, without
indicating X's name or shop name as the author, for a period as long as about three years
and four months, the court awards 800,000 yen as a solatium sufficient to compensate
for the mental damage suffered by X as a result of the infringement of the right of
attribution.

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Judgement rendered on March 28, 2024
2023 (Ne) 10093 Appeal Case of Seeking Compensation for Damages (Court of priorinstance: Tokyo District Court 2021 (Wa) 12304)
Date of conclusion of oral argument: January 16, 2024
Judgment
Appellant: X
Appellee: Ark Publishing Inc.
Main text
1. The judgment in prior instance shall be modified as follows:(1) The Appellee shall pay to the Appellant 880,000 yen and an amount accrued thereonat the rate of 3% per annum for the period from December 22, 2020, until the completionof the payment.
(2) The rest of the claim of the Appellant shall be dismissed.
2. The court costs for the first and second instances shall be divided into twenty portions,
three of which shall be borne by the Appellee, while the other seventeen shall be borneby the Appellant.
3. This judgment may be provisionally executed as far as Paragraph 1(1) is concerned.
Facts and reasonsNo. 1 Object of the claim
1. The judgment in prior instance shall be modified as follows.
2. The Appellee shall pay to the Appellant 6,600,000 yen and an amount accrued
thereon at the rate of 5% per annum for the period from August 3, 2017, until thecompletion of the payment.
No. 2 Outline of the case (unless otherwise noted, the same abbreviations used in the
judgment in prior instance shall be used herein.)
1. This is a case in which the Appellant alleged the infringement of its copyright (rightto transmit to the public) and moral right of author (right of attribution) related to avideo specified in the List of the Video attached to the judgment in prior instance (the"Video") caused by the Appellee's act of making public, without indicating theAppellant's name or shop name as the author, a part of the Video (the "Reproduction")1

on an online video sharing platform, YouTube (the "Site"), and based on this allegation,
demanded the Appellee to pay the compensation for damages due to a tort in amountof 6,600,000 yen (4,000,000 yen as damages under Article 114, paragraph (3) of the
Copyright Act; 1,000,000 yen as loss of profits caused by the copyright infringement;
1,000,000 yen as a solatium for the infringement of moral right of author; and600,000 yen as attorney's fees), together with the delay damages accrued thereon at
the rate of 5% per annum as prescribed in the Civil Code (before the revision by Act
No. 44 of 2017) for the period from August 3, 2017 (the day when the Appellee started
to make public the Reproduction on the Site), until the completion of the payment.
In the judgment in prior instance, the court granted the Appellant's claim in part tothe extent of the damages in amount of 550,000 yen (500,000 yen as a solatium, and
50,000 yen as attorney's fees), together with the delay damages accrued thereon at therate of 3% per annum as prescribed in the Civil Code currently in effect for the period
from December 22, 2020 (the day when the Appellee ceased to make public the
Reproduction on the Site), until the completion of the payment, and dismissed theremaining portion of the Appellant's claim. The Appellant appealed against the judgmentin prior instance with respect to the portion of the claim dismissed. The Appellee did not
file an appeal or incidental appeal.
2. The basic facts and issues as well as the parties' allegations in relation to the issues
are as described in No. 2, 2. through 4. of the "Facts and reasons" section (from page2, line 10 to page 21, line 17) of the judgment in prior instance, and therefore they
are cited herein, except for the modification as stated in 3. below, and the additionof the Appellant's supplementary arguments in this instance as stated in 4. below and
the Appellee's counterarguments thereto as described in 5. below.
3. Modification of the judgment in prior instance(1) The text "whether the Video is a copyright work" in page 3, line 20 and page 4, line
2 of the judgment in prior instance is replaced with "whether the Video is a copyrightwork and a 'cinematographic work'".
(2) The text of page 4, lines 4 to 6 is to be replaced with the following:"A. The Video on the whole was the outcome of creative efforts of the Appellant, andtherefore qualifies as a copyright work with creative elements.

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The Video is also a cinematographic work (Article 10, paragraph (1), item (vii) of
the Copyright Act) as it is constituted by a series of visual effects."(3) The text "the Video is not a copyright work" in page 6, line 22 of the judgment inprior instance is replaced with "the Video is not a copyright work and therefore is notconsidered as a 'cinematographic work'".
(4) The redundant Japanese punctuation mark in page 8, the end of line 6 of thejudgment in prior instance, is to be deleted.

No. 3 Judgment of this court
This court finds the Appellant's claim to be well-grounded and grants it to the extent
of demanding the payment of 880,000 yen, together with the delay damages accrued
thereon at the rate of 3% per annum for the period from December 22, 2020, until thecompletion of the payment, and holds that the remaining portion of the claim should bedismissed as it is found to be groundless, due to the following reasons:
1. Facts found by the court
The facts found by the court are as described in No. 3, 1. of the "Facts and reasons"section of the judgment in prior instance (from page 21, line 20 to page 28, line 20),and therefore, they are cited herein (hereinafter referred to as the "Findings").
2. Issue 1 (whether the Video is a copyright work and a "cinematographic work")
According to the basic facts, Findings and evidence (Exhibit Otsu 1), this court
finds as follows: [i] the Video was created for the purpose of enabling the public tocorrectly understand what an epileptic seizure is like, composed of a series of animation
footage introducing 13 epileptic seizure cases depicting body movements specific toeach of the characters who contracted an epilepsy seizure in daily life and reactions of
their caretakers; and [ii] the Appellant created by itself or partially through third-party
service providers the storyboards, layouts, backgrounds, key frames and moving
pictures, and the Video generated by these production efforts depicts characters suitedfor various attributes including ages susceptible to specific epileptic seizures appearing
in the respective cases. The Video represents the production efforts to make viewers
focus on the body movements specific to epileptic seizures, including the selection ofrenderings of the body sizes, faces and outfits of the depicted characters, their body3

movements before and after the epileptic seizure, their locations, room interiors andfurniture in the background, the directions and angles for capturing them, and providing
a narrative explanation of the features of each case of epileptic seizure.
Therefore, the Video is considered as a work rendered in a manner that produces anaudio-visual effect analogous to that of cinematography, creatively producing expressionof thoughts or sentiments.
In addition, the Video is fixed on a DVD, which is an attachment to the book inquestion (the "Book").
From the abovementioned findings, the Video is considered as a "work rendered
in a manner that produces a visual or audio-visual effect analogous to that ofcinematography, and that is fixed into a physical object" as defined in Article 2,paragraph (3) of the Copyright Act, and therefore qualifies as a cinematographic
work (Article 10, paragraph (1), item (vii) of the same Act).
Meanwhile, as described in No. 2, 4.(1) (Defendant's arguments), B. of the "Factsand reasons" section of the judgment in prior instance, the Appellee argues that none of
the three essential components of the Video, namely, the characters contracting an
epileptic seizure, the characters' renderings including their designs and backgrounds, orthe narrations, involves any creative features and the Video is not a copyright work as
it lacks creativity. However, as discussed above, the Video when viewed in its totality
can be considered as a creatively produced expression of thoughts or sentiments, andtherefore the Appellee's argument as mentioned above is unacceptable.
3. Issue 2 (authorship of the Video)(1) The author of a cinematographic work is the person that makes a creative
contribution to the overall shaping of the work through responsibility for its production,
direction, staging, filming, art direction, etc., other than the author of a novel, scenario,
music, or other work that is adapted into or reproduced in the cinematographic work
(Article 16 of the Copyright Act).
(2) Involvement of the Appellant
As mentioned in Findings (3)A., in connection with the production of the Video,
it is found that the Appellant created the storyboards, layouts, backgrounds, key
frames and moving pictures, and did the painting, filming, sound production and4

editing work by itself or in part through third party service providers acting on its
instruction. In addition, the body sizes, faces and outfits of the characters depictedin the Video, their body movements before and after the epileptic seizure, theirlocations, room interiors and furniture in the background, as well as the directions
and angles for capturing them, were selected in a way to make viewers focus on the
body movements specific to epileptic seizures, and these creative expressions are theoutcomes of the Appellant's works described above.
(3) Involvement of Doctor A
Based on the basic facts and Findings, it was Doctor A who selected the 13
epileptic cases to be on the Video in the form of animation footage and determined
their order of appearance.
In addition, as the Appellant was not knowledgeable in epilepsy, Doctor A, who
has expertise in the field of epilepsy, is presumed to have provided the Appellant
with an explanation of the characteristics of the epileptic cases in the Video. However,
although Doctor A stated in the examination of a witness in the prior instance that heprovided the Appellant with videos as reference materials to help understanding of
all 13 epileptic cases, the Appellant does not admit this. In fact, only three videos
were submitted as evidence of these reference videos (Exhibits Otsu 2-1 through 23). Although an email sent from Doctor A to the Appellant (Exhibit Otsu 52) indicatesthe provision of some other videos by Doctor A to the Appellant in addition to theabovementioned three videos, this email is still insufficient to support that Doctor A
provided reference videos for all 13 cases.
Further, although the Findings indicate that Doctor A helped the Appellant's
production of animated videos by suggesting the genders and ages of characters to
be taken up in those epileptic cases and the directions and angles for depicting thecharacters having an epileptic seizure, the court cannot find even from the totality ofthe evidence of this court case that Doctor A provided the Appellant with specificadvice for many epileptic cases, including on how to describe characters contracting
an epileptic seizure or their caretakers' reactions, those characters' facial expressions
or renderings of the backgrounds.
In addition, the Findings indicate that Doctor A reviewed the storyboards and key

5

frames created by the Appellant, asked Doctor C and Doctor D to review somecontents of the epileptic cases, and also checked the draft narration texts and subtitlesof the Video created by the Appellant; however, Doctor A's activities described above
can be considered as confined to a medical review and advice for finding inaccurate
information and ensuring the consistency with the Book. Doctor A also provided
instructions to modify the fonts and the menu page of the Video, but this involvement
makes a very small contribution to the entire expressions of the Video.
(4) Involvement of other parties
A. According to the Findings, B', the representative of the Appellee, provided
services including modifying the draft narration texts and subtitles created by theAppellant, checking the consistency with the contents of the Book, and providing
instructions concerning the fonts and menu page of the Video; however, no other
involvement in the production of the Video than those described above can be found.
B. The involvement of Doctor C and Doctor D in the process of production of theVideo was also limited to a medical review of the storyboards and rough key frames
created by the Appellant for the accuracy of body movements of characters
contracting an epileptic seizure, and recommending some modifications throughDoctor A for some of the epileptic cases.
(5) From (2) through (4) above, this court finds that the person who made a creative
contribution to the overall shaping of the cinematographic work throughresponsibility for its production, direction, staging, filming, art direction, etc. of theVideo was the Appellant, not Doctor A, the Appellee, Doctor C or Doctor D.
Considering the totality, the involvement of Doctor A was largely for providing
the Appellant with information on epilepsy and a medical review to ensure theaccuracy of the Video. It was confined to providing advice and suggesting ideas fromthe supervisory standpoint for the production of the Video, not amounting to thecreation of any specific expressions of the Video. Consequently, Doctor A cannot be
considered to have made a creative contribution to the overall shaping of thecinematographic work through responsibility for its production, direction, staging,filming, art direction, etc. of the Video. In addition, although it was Doctor A who
selected the epileptic cases featured in the Video and determined their order of6

appearance, this choice was only made in line with the Book to which the Video was
attached, and cannot be equated with a creative contribution to the overall shapingof the Video.
With respect to the Appellee, Doctor C and Doctor D, considering their limited
involvement described in (4) above, none of them can be considered as the person
who made a creative contribution to the overall shaping of the Video.
4. Issue 3 (ownership of copyright in the Video)(1) Article 29, paragraph (1) of the Copyright Act provides: "If the author of acinematographic work ... has promised the producer of the cinematographic work thatthe author will participate in its production, the copyright to that cinematographic
work belongs to the producer of the cinematographic work."
As described in 2. above, as the Video is considered as a cinematographic work,
the ownership of copyright in the Video is governed by Article 29, paragraph (1) of
the Copyright Act, and is attributed to its producer if the Appellant, who is the authorof the Video, has promised the producer to participate in its production.
In this regard, the Appellee argues that Article 29, paragraph (1) of the CopyrightAct contemplates theatrical movies and therefore does not apply to the Video createdas an attachment to the Book. However, there is no ground to construe that thisprovision only applies to a cinematographic work that is a theatrical movie or that
this provision is not applicable even if the Video qualifies as a cinematographic work.
Therefore, the Appellee's argument as described above is found to be unacceptable.
(2) A "producer of a cinematographic work" under Article 29, paragraph (1) of the
Copyright Act means a "person that does the conceptualizing and has the
responsibility in the production of a cinematographic work" (Article 2, paragraph (1),item (x) of the Copyright Act).
It is understood that Article 29 of the Copyright Act was introduced as it was
judged to be reasonable to attribute a copyright in a cinematographic work to its
producer, based on the following considerations: [i] it had been a customary practicefor a producer to exercise a copyright with respect to the use of a cinematographic
work according to an agreement between the producer and the author; [ii] acinematographic work has a specific character in that it is produced and released by7

the producer investing significant funds for production as part of corporate activities;
and [iii] for a movie, there are a number of stakeholders who can be regarded as theauthor, and allowing all those stakeholders to exercise a copyright would negatively
affect the smooth market distribution of a movie.
Considering the wording of Article 2, paragraph (1), item (x) of the CopyrightAct, together with the purpose of Article 29, paragraph (1) of the same Act as
described above, it is reasonable to recognize a "producer of a cinematographic work"
as a person or entity that has an intention to produce a cinematogra phic work and has
legal rights and obligations related to the production of the work, and as aconsequence, becomes entitled to receive economic benefits and bears costs
associated with the production of the work.
(3) The issue of a person or entity to be considered as a producer of thecinematographic work with respect to the Video is discussed below in the context of
the Findings.
A. It was Doctor A who made a plan to publish the Book and to include the DVDfeaturing the animation footage as an attachment to the Book.
Meanwhile, the publisher of the Book with the DVD was the Appellee, and it wasalso the Appellee that executed a production service agreement with the Appellant
for the Video. From these facts, the court recognizes that the person or entity thatwas liable to pay, and actually paid, the fees under the service agreement to theAppellant was the Appellee.
B. The Appellee and Doctor A, based on the consideration that it would be difficult
to cover the full costs of production only by bookstore sales, agreed to recover thecosts by asking pharmaceutical companies, etc. that Doctor A is acquainted with topurchase the Book. Doctor A conducted sales activities and obtained commitmentsfrom those pharmaceutical companies, etc. to purchase the Book, thereby procuring
the costs for publication, including the service fees under the service agreement
payable to the Appellant. Further, when the Appellant told B' that they would needadditional Video production costs, B' told Doctor A that additional purchasers would
be necessary, and Doctor A responded that he would consider paying part of the
production costs out of his pocket or his lecture fees, but finally secured a sufficient8number of purchasers to cover the publication costs for the Book.
That being said, there is no sufficient evidence to support that the Appellee andDoctor A reached an agreement requiring Doctor A to make up for the cost shortfall
if he could not secure a sufficient number of purchasers to cover the publication costs
for the Book (including the service fees payable to the Appellant).
Then, it is found that the Appellee was in the final position to make up for thecost shortfall if such situation occurred, as it was the Appellee that published theBook, entered into the production service agreement for the Video with the Appellant,
and therefore was legally liable to pay the fees to the Appellant.
C. By entering into the animation production service agreement with the Appellee,
and providing the production service for the Video under this agreement, theAppellant acquired a fee claim against the Appellee under the same agreement.
The Appellant also entrusted other third party service providers to perform a partof the service mentioned above and became liable to pay fees to these service
providers as well, so the Appellant was also entitled to claim the reimbursement ofthese fees from the Appellee under the abovementioned service agreement. In fact,
the Appellant received the fees under the service agreement, including the fees
payable to the third party service providers, out of revenue by sales to the purchasers
solicited by Doctor A.
In addition, no agreement can be found to exist for allocating the risk of cost
shortfall to the Appellant, in other words, that the Appellant is supposed to give up
the recovery of all or part of its fee claim against the Appellee if Doctor A failed tosolicit a sufficient number of purchasers to cover the publication costs for the Book.
Therefore, the court finds that the Appellant was not in the position to assume any
loss even if such situation occurred.
D. Based on A. through C. above, the Appellee is reasonably considered as the
producer of the cinematographic work with respect to the Video, namely, the personor entity that has an intention to produce the cinematographic work and has legal
rights and obligations related to the production of the work, and as a consequence ,becomes entitled to receive economic benefits and bears costs associated with the
production of the Video, which is a cinematographic work.

9If there was an agreement for Doctor A to make up for the cost shortfall and toassume losses if Doctor A is unable to secure a sufficient number of purchasers tocover the publication costs for the Book, there would be a room to consider Doctor
A as the producer of the cinematographic work with respect to the Video; however,in light of the facts found in this court case, there is no room, at least, to construethat the Appellant is the producer of the cinematographic work with respect to theVideo.
(4) As mentioned above, the producer of the cinematographic work with respect tothe Video is the Appellee.
In addition, the Findings indicate that the Appellant, the author of the Video,
promised the Appellee that the Appellant will participate in the production of theVideo.
Therefore, by the application of Article 29, paragraph (1) of the Copyright Act,the copyright in the Video is attributed to the Appellee, who is the producer of thecinematographic work with respect to it.
Even supposing that Doctor A can be considered as the producer of thecinematographic work with respect to the Video, according to the Findings, theAppellant, the author of the Video, had promised to Doctor A that the Appellant will
participate in the production of the Video, and therefore the copyright in the Video
would be attributed to Doctor A by the application of Article 29, paragraph (1) of the
Copyright Act. So, even on this presumption, the copyright in the Video cannot be
attributed to the Appellant.
(5) Appellant's arguments in No. 2, 4.(3) above
The Appellant argues that it is the producer of the cinematographic work withrespect to the Video.
However, the facts that the Appellant took the central role in providing theservice of production of the Video and that the involvement of Doctor A and theAppellee in the service was insignificant are not sufficient to qualify the Appellant
as "a person or entity that has an intention to produce a cinematographic work andthat has legal rights and obligations related to the production of the work, and as aconsequence, becomes entitled to receive economic benefits and bears costs

10

associated with the production of the work."
As discussed in (3)C. above, the Appellant is not found to have assumed thefinancial risk ofgiving up its fee claim under the service agreement with theAppellee depending on the number of sales of the Books. Regardless of whether
Doctor A alone assumed the risk of unsuccessful store sales of the Book, there is noroom to construe that the Appellant was in the position to receive economic benefits
or bear costs, and therefore assume risks associated with the production of the Video.
Therefore, the abovementioned arguments of the Appellant are found to beunacceptable.
5. Issue 5 (whether the indication of author's name can be omitted)
With respect to Issue 5, as mentioned in No. 3, 5. of the "Facts and reasons"section of the judgment in prior instance (from page 38, line 21 to page 39, line 8),
no fact can be found to justify the Appellee's omission of the indication of theAppellant's name as the author when releasing the Reproduction on the Site, and theAppellee is found to have infringed the Appellant's moral rights (right of attribution)with respect to the Video. Therefore, this court cites this part of the judgment in priorinstance.
6. Issue 6 (whether there was intentional misconduct or negligence)With respect to Issue 6, as mentioned in No. 3,

6. of the "Facts and reasons"section of the judgment in prior instance (from page 39, lines 10 to 17), it is found,at least, that there was negligence on the part of the Appellee with respect to theinfringement of the Appellant's right of attribution with respect to the Video, so thecourt cites this part of the judgment in prior instance.
7. Issue 7 (existence of damages and amount)(1) Damage due to the infringement of copyright
As discussed in 4. above, as the Appellant cannot be considered as the copyrightowner with respect to the Video, there is no damage suffered by the Appellant due tothe infringement of copyright.
(2) Damage due to the infringement of moral right of author (right of attribution)
A. As mentioned in 3. above, the author of the Video is the Appellant. Therefore, theAppellee's argument that the claim of compensation for damages based on a moral

11

right of author with respect to the Video, which is a joint work with Doctor A, is not
exercisable without the consent of Doctor A, who is a co-author, lacks the premise
and is therefore found to be unacceptable.
B. As discussed above, although the sole author of the Video is the Appellant, theAppellee made public the Reproduction extracted from the Video on the Site, without
indicating the Appellant's name or shop name as the author, for a period as long as
about three years and four months. The Reproduction made public on the Site earned
more than 1.6 million views (Finding (6)).
In addition, considering the circumstances presented in the case, including theAppellee's conduct of this litigation such as arguing that the Video is not a copyrightwork in spite of having made a notice on the DVD naming itself as the publisher andcopyright owner, a solatium in amount of 800,000 yen would be adequate tocompensate for the Appellant's mental damage caused by the infringement of its rightof attribution.
(3) Attorney's fees
The court awards 80,000 yen as attorney's fees having an adequate causal
relationship with the Appellee's tort of infringement of the right of attribution.
(4) Delay damages
With respect to the Appellant's claim against the Appellee for compensation fordamages, the first day of the calculation of the delay damages should be December
22, 2020, which is the day when the Appellee ceased the continued tort in question,and the applicable interest rate should be 3% per annum as prescribed in the Civil
Code currently in effect. The reason is as stated in No. 3, 7.(4) of the "Facts andreasons" section (from page 41, lines 12 to 19) of the judgment in prior instance, andtherefore, it is cited herein.
In this regard, the Appellant argues that, as stated in No. 2, 4.(5) above, the firstday of calculation of the delay damages should be August 3, 2017, which is the day
when the Appellee started the tort.
However, the amount of damages (solatium) that the Appellant can claim against
the Appellee was calculated as the amount sufficient as solatium for mental damage
suffered by the Appellant caused by the Appellee's continued tort for the period as

12long as from August 3, 2017, to December 22, 2020. It is impossible to understandthat the Appellee had defaulted in the performance of its solatium payment obligationfrom the first day of the tort (i.e., the day when the Appellee made public the
Reproduction on the Site for the first time), or that the Appellee is liable to pay thedelay damages accruing from that day.
Supposing that the first day of the calculation of the delay damages with respect
to the claim of compensation for damages due to tort is August 3, 2017, the interest
rate would be 5% per annum as prescribed in the Civil Code before the amendment
by the Act No. 44 of 2017; whereas this interest rate would be 3% per annum asprescribed in the Civil Code currently in effect if starting the calculation from
December 22, 2020. However, these facts do not lead to the conclusion that the firstday of the calculation of the delay damages payable from the Appellee to theAppellant should be August 3, 2017.
Therefore, the Appellant's argument as described above is found to beunacceptable.
8. Further, even examining the arguments raised by the parties in the prior instanceand this instance, the Findings of this court as mentioned above (including thecitation from the judgment in prior instance) are in no way affected.
9. Conclusion
From the above, the court determines the Appellant's claim of compensation fordamages due to tort to be well-grounded to the extent of 880,000 yen together withthe delay damages accrued thereon at the rate of 3% per annum for the period from
December 22, 2020, until the completion of the payment, and holds that the claim
should be granted to that extent and that the remaining portion of the claim should
be dismissed as it is groundless, without the need for making determinations on Issue
4. Therefore, the judgment in prior instance which holds to the contrary is to be foundto be groundless in part, and the appeal is well-grounded in part.
Therefore, the judgment shall be rendered in the form of the main text.

Intellectual Property High Court, Third Division
Presiding Judge: SHOJI Tamotsu

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Judge: IMAI Hiroaki
Judge: MIZUNO Masanori

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