Portrait Right;
Publicity Right

Date
Case number

September 13, 2023
2023 (Ne) 10025

Court

Intellectual Property
High Court, First
Division- A case in which the members of a group (band), who had entered into an exclusive
management contract with a music promotion office, demanded the music promotion
office for compensation by claiming that the music promotion office posted, after the
exclusive management contract between the music promotion office and the band
members had ended and against the will of the band members, information such as thegroup name, and portraits and artistic names of the members of the group on thewebsites managed and operated by the music promotion office, and the court partiallyapproved the claims based on tort, on the grounds of infringement of rights of themembers of the group, including portrait rights and publicity rights.
Case type: Compensation
Result: Partial modification of the prior instance judgment
References: Articles 709 and 710 of the Civil CodeJudgment of the prior instance: Tokyo District Court; 2019 (Wa) 30204
Summary of the Judgment
1.

The present case is one in which X, et al., who were working as members of aperformer group (Group) under an exclusive management contract between themembers of the Group and Company Y, which is a music promotion office (Exclusive
Contract), argued that Company Y continued to post (Act of Use), against the will of
the members of the Group, information such as the name of the Group, and portraits
and artistic names of X, et al. on the websites managed and operated by Company Y(Defendant's Site, Online Shopping Site for Goods, and Fan Club Site) even after the
Exclusive Contract ended on July 13, 2019, until November 30, 2019 in the cases of
Defendant's Site and Fan Club Site, and until December 31, 2021 in the case of Online
Shopping Site for Goods, respectively, and demanded Company Y for compensation
based on tort on the grounds of infringement of rights such as portrait rights andpublicity rights, in the amount of 1.1 million yen per member of X, et al, in addition
to making other claims such as a claim for payment of late payment charge.
In the prior instance judgment, the court of first instance held that, during theperiod from December 1, 2019 until December 31, 2021, in regards to the Act of Use,
Company Y infringed on the publicity rights of X, et al. by the act of posting
photographs showing goods on which portrait photos of X, et al. and portraits and thelike of X, et al. are transferred, and selling the same on the Online Shopping Site forGoods, and partially approved the claims made by X, et al. to the extent of payment to
X, et al. of 14,000 yen per person in damages as well as the payment to X, et al. ofilate payment charge accrued thereon.

X, et al., who were dissatisfied with the priorinstance judgment, filed an appeal of the present case.
2.

In the judgment rendered by the present court (Judgment), the court determined

as follows concerning whether or not there was infringement of portrait rights and thelike, which is a major point of contention (Issue 1), and partially changed the priorinstance judgment.
(1)

A person's name, portrait, and the like (hereinafter collectively referred to as"Portrait, etc.") is a symbol of an individual's personality.

As such, it is the court's

interpretation that the person has the right not to have the Portrait, etc. used without
any good reason, as it derives from personal rights (Supreme Court Judgment; 2009
(Ju) 2056; Judgment rendered by the First Petty Bench on February 2, 2012; Refer to
Minshu Vol. 66, No. 2, page 89, etc.).

Upon determining whether or not the use of aperson's Portrait, etc. is deemed illegal under the tort law, it is necessary tocomprehensively take into consideration matters such as the social status of the person
whose Portrait, etc. are used, the work of the person whose Portrait, etc. are used, thepurpose of use, the manner of use, and the need for use, and then consider whether or
not the infringement of the above rights of the person whose Portrait, etc. were used issuch that it exceeds the socially accepted limitation.
(2)

The Exclusive Contract ended on July 13, 2019, so that it can be said that after

the end of the Exclusive Contract, Company Y no longer had the authority to use theartistic names, portraits, and other personal rights of X, et al.
According to findings, it is acknowledged that, in order to avoid creating
confusion among relevant people in the fan club of the Group or to avoid causing
trouble to them, X, et al. had given the implicit permission for the posting of Portrait,
etc. of X, et al. on Defendant's Site and Fan Club Site until the time it became
possible to shut down the Fan Club Site.
On the other hand, there are no reasonable grounds to sufficiently acknowledge
that X, et al. had given their permission to Company Y for the continued showing of
portrait photos of X, et al. on the Online Shopping Site for Goods as the Group's
official shop even after the end of the Exclusive Contract, and for the continued
posting of the photographs showing the goods on which portrait photos of X, et al.
and Portrait, etc. of X, et al. are transferred, and for the continued sale of the same.
When the following factors are comprehensively taken into consideration, namel ythat X, et al. have been engaging in artist work as members of the Group, and thatthey had the purpose of making profits from the sale of goods through Company Y,
and that Company Y showed portrait photos of X, et al. on the Online Shopping Siteii

for Goods as the Group's official shop, and then posted photographs showing thegoods on which portrait photos of X, et al. and illustrated images of portraits of X, etal. are transferred, and selling the same, and that Company Y, while knowing that arequest has been made by X, et al. to discontinue the use of Portrait, etc., continued touse the same without the permission of X, et al. for a considerable period of time fromthe end of the Exclusive Contract until December 31, 2021, the court considers thatthese factors constitute infringement of Portrait, etc. of X, et al., and the court cannot
hold that they provide grounds for the argument that the infringement of Portrait, etc.
of X, et al. by Company Y does not exceed the socially accepted limitation.
(3)

Accordingly, while it cannot be said that the act by Company Y of posting

Portrait, etc. of X, et al. on Defendant's Site and Fan Club Site after the Exclusive
Contract ended until November 30, 2019 should be evaluated as being illegal under
the tort law, it can be said that the act by Company Y of posting the Portrait, etc. of X,
et al. on the Online Shopping Site for Goods and selling the goods, on which thePortrait, etc. of X, et al. are transferred, from the end of the Exclusive Contract until
December 31, 2021, should be evaluated as being illegal under the tort law.

iii

Judgment rendered on September 13, 2023
2023 (Ne) 10025 Appeal case of seeking compensation(Prior instance: Tokyo District Court 2019 (Wa) 30204)
Date of conclusion of oral argument: July 12, 2023
Judgement
Appellant: X1(hereinafter referred to as "Appellant X1")
Appellant: X2(hereinafter referred to as "Appellant X2")
Appellant: X3(hereinafter referred to as "Appellant X3")
Appellant X4(hereinafter referred to as "Appellant X4)
Appellee: Yugen Kaisha Sirene
Main text
1. The prior instance judgment shall be modified as follows.
2. The Appellee shall pay to Appellant X1 a sum of 211,577 yen and the money
accrued on the amount of 15,577 yen out of said sum at an annual rate of 5% for theperiod from March 1, 2020 until payment completion, as well as the money accruedon the amount of 196,000 yen out of said sum at an annual rate of 3% for the period
from December 31, 2021 until payment completion.
3. The Appellee shall pay to Appellant X2 a sum of 211,577 yen and the money
accrued on the amount of 15,577 yen out of said sum at an annual rate of 5% for theperiod from March 1, 2020 until payment completion, as well as the money accruedon the amount of 196,000 yen out of said sum at an annual rate of 3% for the period
from December 31, 2021 until payment completion.
4. The Appellee shall pay to Appellant X3 a sum of 211,577 yen and the money
accrued on the amount of 15,577 yen out of said sum at an annual rate of 5% for theperiod from March 1, 2020 until payment completion, as well as the money accrued1

on the amount of 196,000 yen out of said sum at an annual rate of 3% for the period
from December 31, 2021 until payment completion.
5. The Appellee shall pay to Appellant X4 a sum of 211,577 yen and the money
accrued on the amount of 15,577 yen out of said sum at an annual rate of 5% for theperiod from March 1, 2020 until payment completion, as well as the money accruedon the amount of 196,000 yen out of said sum at an annual rate of 3% for the period
from December 31, 2021 until payment completion.
6. The remainder of the claims made by Appellants shall be dismissed.
7. Court costs throughout the first and second instances shall be divided into five parts,
four of which shall be borne by Appellants, and the remainder shall be borne by theAppellee.
8. Only Paragraphs 2 to 5 of this judgment may be provisionally executed.
Facts and reasons
Unless otherwise indicated herein, abbreviations of the terms, and the meaningsof the abbreviations shall be as indicated in the prior instance judgment.

The"attached" as used in the prior instance judgment shall be read hereunder as "attachedto the prior instance judgment".
No. 1

Object of appeal

1. The prior instance judgment shall be modified as follows.
2. Appellee shall pay to Appellant X1 a sum of 1,122,277 yen and the money accruedon the amount of 1,100,000 yen out of said sum, for the period from December 19,
2019 until payment completion, and the money accrued on the amount of 22,277 yen
out of said sum, for the period from the first day of the same month until payment
completion, at an annual rate of 5%.
3. Appellee shall pay to Appellant X2 a sum of 1,122,277 yen and the money accruedon the amount of 1,100,000 yen out of said sum, for the period from December 19,
2019 until payment completion, and the money accrued on the amount of 22,277 yen
out of said sum, for the period from the first day of the same month until payment
completion, at an annual rate of 5%.
4. Appellee shall pay to Appellant X3 a sum of 1,122,277 yen and the money accruedon the amount of 1,100,000 yen out of said sum, for the period from December 19,
2019 until payment completion, and the money accrued on the amount of 22,277 yen
out of said sum, for the period from the first day of the same month until payment
completion, at an annual rate of 5%.
2

5. Appellee shall pay to Appellant X4 a sum of 1,122,277 yen and the money accruedon the amount of 1,100,000 yen out of said sum, for the period from December 19,
2019 until payment completion, and the money accrued on the amount of 22,277 yen
out of said sum, for the period from the first day of the same month until payment
completion, at an annual rate of 5%.
No. 2

Outline of the case

1. Summary of the case
The present case is one in which Appellants, who were working as members ofa performer group called "A" (Group) under an exclusive management contract(Exclusive Contract) with Appellee, argued that Appellee continued to post (Act ofUse) information such as the name of the Group, and portraits and artistic names ofAppellants on the websites of the present case managed and operated by Appellee(Defendant's Site, Online Shopping Site for Goods, and Fan Club Site) even after the
Exclusive Contract ended on July 13, 2019, until November 30, 2019 in the cases of
Defendant's Site and Fan Club Site, and until December 31, 2021 in the case of Online
Shopping Site for Goods, and demanded the following:(1) Compensation based on an act of tort on the grounds of infringement of rights
such as portrait rights and publicity rights (all claims being partial claims), in theamount of 1.1 million yen per member of Appellants (the breakdown being 500,000
yen for infringement of portrait right, etc., 500,000 yen for publicity right
infringement, and 100,000 yen as the amount equivalent to attorney's fees), and for
payment of late payment charge, accrued at an annual rate of 5% as prescribed by the
Civil Code (prior to the amendment by Act No. 44 of 2017; hereinafter referred to as"Pre-Amendment Civil Code"), for the period from December 19, 2019 (the day
immediately following the day of delivery of a complaint) until payment completion;and(2) Payment of remuneration, pursuant to an implicit agreement for use of portraits,
etc. between Appellants and Appellee, in the amount of 22,277 yen per member ofAppellants and the late payment charge, which is accrued thereon at an annual rate of
5% as prescribed by the Pre-Amendment Civil Code for the period from December 1,
2019 (the day immediately following the day on which the act of use under the
implicit agreement for use of portraits, etc. ended) until payment completion.
In the prior instance judgment, the prior court held that the Appellee's act of
posting and selling, on the Online Shopping Site for Goods, for the period from
December 1, 2019 until December 31, 2021, as indicated under 4 of the List of3

Photographs attached to the prior instance judgment, photographs showing goods onwhich portrait photos of Appellants and portraits, etc. of Appellants are transferred ,from among the Act of Use, infringed on the publicity rights of Appellants, andpartially approved the claims made by Appellants within the extent of payment toAppellants of 14,000 yen per person in damages as well as the late payment charge
accrued thereon, and as for the Appellee's act of using the portraits, etc. of Appellants
after the Exclusive Contract ended until November 30, 2019, from among the Act ofUse, the payment of remuneration in the amount of 22,277 yen, based on Appellants'right to demand Appellee for payment of remuneration, and the payment of latepayment charge accrued thereon.

The prior court dismissed the remaining claims.

In response, Appellants, who were dissatisfied with the part of the priorinstance judgment in which they lost, filed an appeal of the present case.
2. Basic facts (facts over which the parties are not in dispute, and evidence(hereinafter the document numbers include branch numbers unless especially statedotherwise), and facts that can be acknowledged from the entire import of oral
argument; hereinafter referred to as "Basic facts")
Other than the following collections to be made, what is indicated under No, 2,Paragraph 2 of "Facts and reasons" of the prior instance judgment applies and is citedhereinafter.
(1) After "exclusive contract" in line 13 on page 4 of the prior instance judgment, add"(hereinafter referred to as 'Exclusive Contract')".
(2) Correct each instance of "exclusive contract" in line 16 on page 4 and in lines 20
and 21 of the same page of the prior instance judgment to "Exclusive Contract".
(3) After the end of line 21 on page 4 of the prior instance judgment, add thefollowing:"(C) All Appellants' rights under the Copyright Act pertaining to matrixes andoriginal editions, etc. created during the contract period of the present case (including
all rights and ownership under the Copyright Act, including the right of reproduction,right of transfer, distribution right, performing right, right of screen presentation, rightto make transmittable, neighboring right, right to demand secondary use fees, right todemand remuneration for renting out, right to demand compensation for private soundand visual recording), as well as all rights, including trademark rights, intellectual
property rights, and merchandising right pertaining to Appellants, belong to Appellee(Article 6 of the Exclusive Contract).
(D) Measures after the end of the contract period and cancellation period shall be as
follows.
4

For six months after the end of the contract period, Appellants may not executewith a third party, other than Appellee, any contract whose objective is performance,such as a management contract, without obtaining Appellee's approval beforehand(Article 9(5) of the Exclusive Contract).
(E) The Exclusive Contract does not provide for the handling of moral rights ofAppellants after the Exclusive Contract ended, including artistic names, real names,
photographs, portraits, handwritings, biographies, and voices."(4) Correct each instance of "(C)" in line 22 on page 4 and in lines 1 and 3 on page 5of the prior instance judgment to "(F)".
(5) Correct "(D)" in line 1 on page 5 of the prior instance judgment to "(G)".
(6) Correct "(E)" in line 3 on page 5 of the prior instance judgment to "(H)".
(7) After the end of the line 5 on page 5 of the prior instance judgment, start a newline and add the following:"C.

Since December 2010, for the duration of the Exclusive Contract, the Group

sold nine singles, and the 7th single was ranked 17th on Oricon Weekly Ranking, andthe 8th single was placed 8th in a top sales ranking.

Also, the Group sold one single

of a download-only type, three albums, three mini-albums, one album containing best
hits, two albums focused on the Group's concept, etc.

On December 5, 2010, theGroup performed a solo live performance, and performed multiple solo live
performances each year (including tours) in 2011 and between 2013 and 2018.
Furthermore, since December 2010, for the duration of the Exclusive Contract, thecover or the back cover of "Cure", a specialized magazine for visual indie bands,
featured the Group four times in total.

A music piece performed by the Group wasused as the closing theme for "Akkoni-Omakase!", a TV program broadcasted by TBS,in April 2016.

The Group also performed on TV and radio.

(Exhibits Ko 40 to 43)(8) Correct "C" in line 6 on page 5 of the prior instance judgment to "D".
(9) Correct "D" in line 9 on page 5 of the prior instance judgment to "E".
(10) Correct the part, which starts with "portrait photos of Plaintiffs" in line 8 on page
6 of the prior instance judgment and ends with the last word in line 10 of the same
page, as follows: "along with the indications of 'A' and 'OFFICIAL SHOP', byshowing portrait photos of Appellants (the part framed in red in the upper right corneron the first page of the same List), posted photographs showing goods on which theportrait photos of Appellants and illustrated images of portraits of Appellants aretransferred (each of the remaining parts framed in red on the same List), and sold such
goods."(11) Correct "Defendant, concerning the sale of goods on the Online Shopping Site5for Goods" in line 1 on page 7 of the prior instance judgment to "Appellee,
concerning the sale of goods on the Online Shopping Site for Goods, received fromSUKIYAKI".
(12) Correct "Defendant, concerning the fan club for the Group" in line 5 on page 7 ofthe prior instance judgment to "Appellee, concerning the fan club for the Group,
received from Kabushiki Kaisha Zero One Style".
3. Issues
Issues of the present case are as indicated under No. 2, Paragraph 3 of "Factsand reasons" of the prior instance judgment, and are cited herein.
4. Arguments between parties concerning the Issues
The prior instance judgment shall be corrected as follows, with the
supplementary arguments made by the parties in the present court added thereto.
The remainder is as indicated under No. 2, Paragraph 4 of "Facts and reasons" of theprior instance judgment, and is cited herein.
(1) Corrections to the prior instance judgment
Correct "the degree of name recognition is very small" in line 13 on page 19 of
the prior instance judgment to "the degree of name recognition is very low".
(omitted)
No. 3

Judgment of this court

1. Findings
In addition to making the following corrections, what is indicated under No. 3,
Paragraph 1 of the prior instance judgment applies and is cited herein.
(1) Correct "person in charge at SUKIYAKI" in line 15 on page 21 of the priorinstance judgment to "SUKIYAKI personnel in charge of operation, etc. of the Fan
Club Site".
(2) Correct "to postpone" in line 6 on page 22 of the prior instance judgment to "topostpone, or above all, there are no legal grounds due to which Appellants mus t
discuss with Appellee concerning the announcement on SNS, etc.".
(3) After the end of line 21 on page 22 of the prior instance judgment, start a new line
and add the following:"(7) Around August 1, 2019, Appellants filed for provisional disposition forpreservation of status, etc., with the Tokyo District Court, against Appellee, seeking
provisional confirmation that the contract pertaining to Article 6 and Article 9(5) of
the Exclusive Contract is invalid.

In the petition that was filed, Appellants ind icated,6

as a risk of their activities being interfered, the following: 'Even today, as of August 1,
2019, the former homepage of the group, consisting of obligees, managed by the
obligor continues to exist, and continues to infringe the portrait rights of obligees
even after contract termination. ... As such, it can be said that the fact that the former
homepage managed by the obligor still exists today, in itself, constitutes interferencewith the obligees' activities.' (Exhibit Ko 53)"
2. Issue 1 (Whether or not there was infringement of portrait rights, etc.)(1) A person's name and portrait and the like (hereinafter collectively referred to as"Portrait, etc.") represent an individual's personality.

As such, it is the Court's

interpretation that the individual has the right not to have the Portrait, etc. usedwithout any good reason, as such use derives from personal rights (Refer to Supreme
Court Judgment; 1983 (O) 1311; Judgment rendered by the Third Petty Bench on
February 16, 1988; Minshu Vol. 42, No. 2, page 27 concerning names, refer toSupreme Court Judgment; 1965 (A) 1187; Judgment rendered by the Grand Bench on
December 24, 1969; Keishu Vol. 23, No. 12, page 1625 and Supreme Court
Judgment; 2003 (Ju) 281; Judgment rendered by the First Petty Bench on November
10, 2005; Minshu Vol. 59, No. 9, page 2428 concerning portraits, refer to Supreme
Court Judgment; 2009 (Ju) 2056; Judgment rendered by the First Petty Bench on
February 2, 2012; Minshu Vol. 66, No. 2, page 89 concerning names and portraits).
Upon determining whether or not the use of a person's Portrait, etc. is deemed illegal
under the tort law, it is necessary to comprehensively take into consideration matterssuch as the social status of the person whose Portrait, etc. are used, the work o f theperson whose Portrait, etc. are used, the purpose of use, the manner of use, and theneed for use, and then consider whether or not the infringement of the above rights ofthe person whose Portrait, etc. were used is such that it exceeds the socially accepted
limitation.
(2) Appellants' Act of Use of Portrait, etc.
A.

As per No. 2, Paragraph 2 and No. 3, Paragraph 1 of the prior instancejudgment to be cited after correction, it is acknowledged that [i] the Exclusive
Contract ended as of July 13, 2019, and [ii] during the life of the Exclusive Contract,
it was agreed between Appellants and Appellee that Appellee was able to use anddevelop, freely and at no charge, the artistic names, photographs, and other moral
rights of Appellants (Article 5 of the Exclusive Contract), but that the Exclusive
Contract did not contain any provision concerning the handling of the rights after the
Exclusive Contract ended.

Under these circumstances, it can be said that after the

Exclusive Contract ended, Appellee was not authorized to use Appellants' moral
7

rights such as artistic names and Portrait, etc.
Appellee argues that since Appellee only used Appellants' Portrait, etc.
pursuant to the Exclusive Contract even after the Exclusive Contract ended, such use
does not pose any problem of infringement or the like to begin with.

However,Appellants' Portrait, etc. constitute rights that belong exclusively to and are personal
to Appellants based on Appellants' moral rights.

As such, given that the Exclusive

Contract, which provides for the use of these rights, ended, and that the Exclusive
Contract does not provide for the handling of said use after contract termination, if
Appellants give no separate permission to Appellee concerning said use, Appellee's
use of Appellants' Portrait, etc. after the Exclusive Contract ended constitutes
unauthorized use.
B.

According to No. 2, Paragraph 2 and No. 3, Paragraph 1 of the prior instancejudgment which is cited after correction, the following are acknowledged: [i]Appellants were engaging in artist activities as members of the Group, which is a
performer group, under the management of Appellee, and the photographs and images
pertaining to Appellants' Portrait, etc., which were posted on the websites of thepresent case, were taken and created by Appellee during the life of the Exclusive
Contract with the approval of Appellants, and were posted with the purpose of
introducing the members of the Group and their activities, and as for the goods onwhich Appellant's Portrait, etc. are transferred, they were likewise manufactured andsold with the approval of Appellants; [ii] in a letter dated April 24, 2019, Appellants
requested Appellee to delete Appellants' Portrait, etc. from the websites managed byAppellee, including the Fan Club Site, and notified Appellee on June 14, 2019 that
Appellants plan to announce on SNS, etc. that the fan club will be discontinued as ofJuly 13 of the same year; [iii] in response, Appellee requested Appellants, in a letter
dated June 12 of the same year, to postpone said announcement because if Appellants
made an announcement on SNS, etc. to the effect that the fan club will be
discontinued as of July 13 of the same year, it would create confusion and causeinconvenience to the relevant personnel and fans, and Appellee informed Appellants
that, on the premise that nearly two months will be required for stopping the billingunder the billing systems of mobile phone companies that were used for payment ofmembership fees for the Group, etc., the earliest time when the billing for the fan club
can be stopped and then the Fan Club Site can be closed down would be the end of
September of this year; [iv] in response, Appellants notified Appellee, in a letter dated
June 14 of the same year, that Appellants, giving consideration to relevant personnel
and fans, would postpone their announcement, which was scheduled on the same date,8

on SNS, etc. about their discontinuation of the fan club; [v] on July 8 of the same year,
Appellee was informed by SUKIYAKI personnel, who is in charge of operating the
Fan Club Site, that since it was discovered that one of the fan club fee billing service
operators requires time to end the service it provides to fan club members, theprovision of service to fan club members on websites can be stopped only after
December 1 of the same year; [vi] as a response, Appellee posted an announcement on
Defendant's Site on July 14 of the same year, to the effect that after December 1 of thesame year, Defendant's Site will cease to provide membership service to fan clubmembers and to provide information on Defendant's Site; [vii] As of November 30 of
the same year, Appellee stopped posting portrait photos of Appellants and illustrated
images, etc. of portraits of Appellants on Defendant's Site and Fan Club Site; [viii]
Even after the Exclusive Contract ended, Appellee indicated portrait photos ofAppellants, and then posted photographs showing goods on which illustrated imagesof Appellants' portraits are transferred, as the official shop of the Group on the Online
Shopping Site for Goods operated by SUKIYAKI, and continued selling such goods
until December 31, 2021.
C.

As described above, it is acknowledged that Appellants gave implicit

permission to Appellee concerning the postponing of the timing to discontinue the fanclub for the Group, for reasons related to the billing system, until the time when it
became possible to stop the billing of the service provided to the members of the fanclub before the provision of the service to the members can be stopped, so as not tocause confusion among relevant personnel or fans of the fan club or to causeinconvenience to them.

In addition, in order to enable the members, who paid themembership fees, to continue to view the articles introducing the members of theGroup and their activities for as long as the fan club existed, it can be said that it wasnecessary for Appellants to post the Portrait, etc. on the Fan Club Site as well as on
the Defendant's Site, which is linked to the Fan Club Site.

Given the fo regoing, it isacknowledged that Appellants had granted implicit permission about the posting ofAppellants' Portrait, etc. on Defendant's Site and Fan Club Site until the time it
became possible to close down the Fan Club Site.
On the other hand, as described above in B [ii], in a letter dated April 24, 2019,
Appellants requested Appellee to delete Appellants' Portrait, etc. from the websites
managed by the Defendant, and as per No. 3, Paragraph 1(7) of the prior instancejudgment which is cited after correction, Appellants wrote as follows in a petition forprovisional disposition, which was filed with the Tokyo District Court against theAppellee around August 1, 2019: "Even as currently as August 1, 2019, the former
9homepage for the obligees' group, as managed by the obligor, still exists, andinfringement of obligees' portrait rights continues even after the contract
termination. ... As such, it can be said that the fact that the former homepage managed
by the obligor still exists today, in itself, constitutes interference with the obligees'
activities."

Given the factors such as that Appellants had felt burdened about theAppellee's continued use of Appellants' Portrait, etc. on the homepage and the likeeven after the Exclusive Contract had ended, it is acknowledged that the notice sent
by Appellants to Appellee concerning the postponing of the announcement todiscontinue the fan club, as described above in B [iv], is one in which Appellants,
giving consideration to relevant personnel and fans and how they will be affected by
the timing to discontinue the billing under the billing system, were forced to postpone
the timing of discontinuing the fan club until the time when it would be possible toclose down the Fan Club Site, and as a result, gave implicit permission for and onlywith regard to the posting of Appellants' Portrait, etc. on Defendant's Site and Fan
Club Site.

However, beyond such unavoidable circumstances, there are no

reasonable causes to sufficiently acknowledge that Appellants had given permission
to Appellee for indicating portrait photos of Appellants as the Group's official shop on
the Online Shopping Site for Goods even after the Exclusive Contract ended, and thenposting photographs showing goods on which Appellants' portrait photos and portraits
and the like of Appellants are transferred, and continuously selling the same.

In

addition, it cannot be acknowledged that there are circumstances to suggest that there
was such permission, and there is no evidence to sufficiently acknowledge that there
was such permission.
D.

Appellants argue that the objective of Appellee in using Appellants' Portrait,

etc. after the Exclusive Contract ended was to interfere with Appellants' activities, andthat Appellee's manner of use and the objective of use of Appellants' Portrait, etc.
were unjust, so that it cannot be said that there was the need or appropriateness withregard to Appellee's use of Appellants' Portrait, etc.

However, as described above inC, considering that Appellants were also thinking about the need to avoid theconfusion that may result from the sudden closing down of the Fan Club Site after the
Exclusive Contract ended, and that at least as long as the fan club remains, the articles
introducing the members of the Group and their activities had to be available forviewing by the members, who paid the membership fees, not just on the Fan Club Site
but also on Defendant's Site which has a function of leading viewers to said site, it
can be said that Appellee's use of Appellants' Portrait, etc. on Defendant's Site and
Fan Club Site until November 30, 2019 took place with the implicit permission by
10

Appellants.

Accordingly, the Appellants' above argument that Appellee had the needor appropriateness to use Appellants' Portrait, etc. cannot be accepted in the case of
these sites.
Next, Appellants point out that a petition for a case seeking provisional
disposition for preservation of status, which was filed against Appellee, contained
sentences suggesting that there is a risk of Appellants' activities being interfered with,such as the following: "Even as currently as August 1, 2019, the former homepage forthe obligees' group, as managed by the obligor, still exists, and infringement of
obligees' portrait rights continues even after the contract termination."

By using theforegoing as a basis, Appellants argue that Appellants had not given implicit
permission for the posting of Portrait, etc. of Appellants.

However, said indication ismerely an indication that constitutes a part of the argument for filing a petition forprovisional disposition for preservation of status, etc., seeking provisional
confirmation that the agreement pertaining to Article 6 and Article 9(5) of the
Exclusive Contract is invalid.

As such, such fact cannot lead to the evaluation that,concerning the announcement to the effect that the service will be provided to themembers and that the information will be provided on Defendant's Site until
November 30 of the same year, Appellants made any objection, in particular, toAppellee about the timing to close down the Defendant's Site and Fan Club Site.

As

such, the above argument by Appellants cannot be accepted.
E.

Appellee argues that the use of Appellants' Portrait, etc. on the Online

Shopping Site for Goods after the Exclusive Contract ended is only to sell the goods
in stock to the fan club members who had paid membership fees, so that it does notconstitute infringement of Appellants' Portrait, etc.

However, as described above inA, since the Exclusive Contract, in which agreement was reached concerni ng the useof Appellants' portrait rights, etc., had ended, and since the Exclusive Contract does
not contain any agreement concerning the handling of such use after contract
termination, if there is no permission in particular, by Appellants to Appellee
concerning said use, the Appellee's use of Appellants' Portrait, etc. constitutes use by
an unauthorized person, and even if the sale concerns the goods that were
manufactured during the life of the Exclusive Contract, and even if the Appellee's
intention was to sell the manufactured goods so as to get rid of the goods in stock inorder to collect the invested money, given that there is no agreement between
Appellants and Appellee after the Exclusive Contract ended, Appellee should not beable to use Appellants' Portrait, etc. on the Online Shopping Site for Goods and sell
the goods on which Appellants' Portrait, etc. are transferred.
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F.

Next, upon comprehensively taking into consideration factors such as that

Appellants engage in artist activities as members of the Group, as per No. 2,
Paragraph 2(2)C of the prior instance judgment which is cited after correction, andthat Appellants had the objective of making profits from Appellee's sale of goods, andthat Appellee showed portrait photos of Appellants as the official shop of the Groupon the Online Shopping Site for Goods, and then posted photographs showing goods
on which portrait photos of Appellants and illustrated images of portraits ofAppellants are transferred, and sold such goods on the Online Shopping Site forGoods, and that Appellee, with the awareness that Appellants requested Appellee todiscontinue the use of Portrait, etc., continued to use Portrait, etc. without Appellants'
permission for a considerable period from the end of the Exclusive Contract until
December 31, 2021, these factors constitute infringement by Appellee of Appellants'
portrait rights, etc., and it cannot be said that Appellee's infringement of Appellants'
portrait rights, etc. exceeds the socially accepted limitation.
(3) Summary
Accordingly, it cannot be said that Appellee's act of posting Appellants'
Portrait, etc. on Defendant's Site and Fan Club Site from the end of the Exclusive
Contract until November 30, 2019 should be evaluated as illegal under the tort law.
On the other hand, it can be said that Appellee's act of posting Appellants' Portrait, etc.
on the Online Shopping Site for Goods from the end of the Exclusive Contract until
December 31, 2021 and selling goods on which Appellants' Portrait, etc. aretransferred should be evaluated as illegal under the tort law.
3.

Issue 2-1 (Whether or not there was infringement of publicity rights)
What is indicated under No. 3, Paragraph 3 of "Facts and reasons" of the priorinstance judgment applies, and is cited herein.
4.

Issue 2-2 (Whether or not license was granted for Appellants' Portrait, etc.)
In addition to the following corrections to be made, what is indicated under No.

3, Paragraph 4 of "Facts and reasons" of the prior instance judgment applies and iscited herein.
(1) Make the following corrections to the prior instance judgment, from line 16 on
page 26 to the end of line 10 on page 27.
"Upon consideration, as indicated above in 2 (2) C, it can be said that
Appellants had given implicit permission to Appellee concerning the posting ofAppellants' Portrait, etc. on Defendant's Site and Fan Club Site after the end of the
Exclusive Agreement until November 30, 2019, which is when the service formembers of the fan club ends, but it cannot be acknowledged that, after the Exclusive
12

Contract ended, Appellee was given the permission to post Appellants' Portrait, etc.
on the Online Shopping Site for Goods and selling goods on which Appellants'
Portrait, etc. are transferred."(2) Correct "since December 1, 2019" in line 11 on page 27 of the prior instancejudgment to "since July 14, 2019, which is the next day of the day on which the
Exclusive Contract ended".
5.

Issue 3 (Whether or not there was intention or negligence)
In addition to making corrections to the prior instance judgment as follows,

what is indicated under No. 3, Paragraph 5 of "Facts and reasons" of the prior instancejudgment applies, and is cited herein.
(1) After each instance of "an artist's" in line 23 on page 27 and in line 10 on page 28of the prior instance judgment, add "portrait right, etc. and".
(2) Correct "since December 1, 2019, which is when the service for members of the
fan club ended" in line 25 on page 27 of the prior instance judgment to "since July 14,
2019, which is the next day of the day on which the Exclusive Contract ended".
(3) Correct "since December 1, 2019" in line 15 on page 28 of the prior instancejudgment to "since July 14, 2019".
(4) After "Plaintiffs'" in lines 17 and 18 on page 28 of the prior instance judgment,
add "portrait rights, and".
6.

Issue 4 (Whether or not there was damage, and the amount thereof)(1) Damage due to infringement of Appellants' portrait rights, etc.
As indicated above in 2 (2), for a considerably long period of two years, fivemonths, and 18 days between July 14, 2019 and December 31, 2021, Appellee
continuously posted Appellants' Portrait, etc. on the Online Shopping Site for Goods
as the official shop of the Group, and this act constituted use of Appellants' Portrait,
etc. against Appellants' will.

It is presumed that Appellants suffered pain morally,

and it is reasonable to acknowledge that the compensation for moral damage shall not
be less than 150,000 yen for each member of Appellants, when the content of theactivities by Appellants until the end of the Exclusive Contract (as indicated under No.
2, Paragraph 1(2)C of the prior instance judgment to be cited after correction), the factthat the objective of the use of Appellants' Portrait, etc. was to make profits by the useon the Online Shopping Site for Goods and in the goods to be sold, the manner of
infringement and the period of infringement as described above, and other factors aretaken into consideration.
The Appellee's act of infringement of portrait rights, etc. constitutes acontinuous act of tort in which Appellee posted Appellants' portrait photos and the13photographs showing the goods on which Appellants' Portrait, etc. are transferred, andselling the same on the Online Shopping Site for Goods from July 14, 2019 until
December 31, 2021, and the above amount of damage is calculated on the premisethat said act of posting and sale took place over the entire period concerned.

In light

of the foregoing, it is reasonable to consider that the day to start calculating the latepayment charge shall be the same day as the day when the continuous act of tort
ended, and that the rate shall be 3% per annum.
(2) Damage suffered by infringement of Appellants' publicity rights
In addition to making the following corrections, what is indicated under N o. 3,
Paragraph 6 of "Facts and reasons" of the prior instance judgment applies, and is citedherein.
A.

Correct "Basic facts (2)B(C)" in line 5 on page 29 of the prior instancejudgment to "No. 2, Paragraph 2(2)B(F) of the prior instance judgment to be ci ted
after correction".
B.

Correct "December 1, 2019" in line 6 on page 29 of the prior instance judgment

to "July 14, 2019 of the prior instance judgment to be cited after correction".
C.

Correct "66,993 yen" in line 7 on page 29 of the prior instance judgment to"143,574 yen".
D.

Correct "5,862 yen (" in line 9 on page 29 of the prior instance judgment to"12,563 yen (143,574 yen × 35% / 4 persons)".
E.

Correct "83,742 yen" in lines 14 and 15 on page 29 of the prior instancejudgment to "179,469 yen".
F.

Delete the part starting with "In addition," in lines 23 and 24 on page 29 of theprior instance judgment and ending with "it is difficult to acknowledge" in lines 24
and 25 on the same page.
G.

Correct "a total of 48,000 yen (12,000 yen per person)" in lines 3 and 4 on page

30 of the prior instance judgment to "26,000 yen to each member of Appellants".
H.

Delete the part starting with "In addition," in line 5 on page 30 of the priorinstance judgment and ending with the last word in line 7.
I.

Correct "December 1, 2019" in line 8 on page 30 of the prior instance judgment

to "July 14, 2019".
J.

Correct "upon calculating the amount of damage suffered from theinfringement of publicity rights" in line 18 on page 31 of the prior instance judgment
to "upon calculating the amount of damage suffered from the infringement ofpublicity rights, by analogical application of Article 114, paragraph (3) of the
Copyright Act, as a previous step for ultimately calculating the amount that adds the14

factor of being a case in which the amount of damage for a claim for compensation
against the infringer of publicity rights will be calculated".
K.

After the end of line 7 on page 32 of the prior instance judgment, start a newline and add the following:"E.

Appellants argue that publicity rights derive from personal rights, so that if

Portrait, etc. are used on a commercial website, etc. in a manner that is against theAppellants' feelings, Appellants' suffered moral pain in the sense that there wasinfringement of moral interests, which should be legally protected, although there may
be no fall of public esteem, so that the court should acknowledge moral damage forthe infringement.
However, while publicity rights are part of the rights that derive from personal
rights, they are based on the commercial value of Portrait, etc. per se, so that unlessthere are special circumstances, it is difficult to acknowledge moral damage.

In thepresent case, no special circumstances can be acknowledged, and as indicated abovein 6 (1), compensation for moral damage is approved due to infringement of Portrait,etc., so that no moral damage on the ground of publicity right infringement shall beapproved."
L.

Correct "E" in line 8 on page 32 of the prior instance judgment to "F".

(3) Attorney's fees
When giving consideration to various circumstances, including the difficulty of
the case, the amount claimed, and the amount approved, the reasonable amount of
attorney's fees that have legally sufficient cause with the act of tort of the present caseis 20,000 yen per member of Appellants.
7.

Issue 5 (Appropriateness of demand for payment of remuneration for Act ofUse)
In addition to making the following corrections, what is indicated under No. 3,
Paragraph 7 of "Facts and reasons" of the prior instance judgment applies, and is citedherein.
(1) Correct "Sites" in line 11 on page 32 of the prior instance judgment to"Defendant's Site and Fan Club Site".
(2) Delete "6,700 yen per member of Plaintiffs concerning the sale of goods, and forthe same period" in line 16 on page 32 of the prior instance judgment.
No. 4

Conclusion
In conclusion, the court holds that Appellants' demand to Appellee isreasonable within the extent of seeking payment, to each member of Appellants, of a15

sum of 196,000 yen in damages based on an act of tort on the ground of infringementof portrait rights and publicity rights, and the late payment charge accrued thereon at
a rate of 3% per annum as prescribed by the Civil Code for the period from December
31, 2021 (the last day of the act of tort) until payment completion, as well as of a sumof 15,577 yen as remuneration requested pursuant to the implicit agreement for the
Act of Use, and the late payment charge accrued thereon at a rate of 5% per annum asprescribed by the Pre-Amendment Civil Code for the period from March 1, 2020 (theday immediately following the payment due date as admitted by Appellee) until
payment completion, and thus such payments shall be approved within said extent.
The prior instance judgment that held otherwise is partially unreasonable, whereas theappeal of the present case is partially reasonable, and thus the court makes the abovechanges to the prior instance judgment and renders the judgment as per the main text.
Intellectual Property High Court, First Division
Presiding Judge: HONDA Tomonari
Judge: TOOYAMA Atsushi
Judge: AMANO Kenji

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