By Nahoko Ono, Attorney and Sara Rosengard
In an unusual copyright infringement case involving origami, a Japanese origami artist sued a Tokyo network television broadcaster for allegedly reproducing the folding instructions of his original origami top on the company’s web site. The artist claimed the folding instructions were uploaded onto the web site without his expressed permission. Along with copyright infringement, the artist also asserted moral rights infringement (right of attribution and right of integrity). Tokyo Broadcasting System (TBS) had decided to put the folding instructions on their web site after receiving requests from viewers who saw it in the opening credits of their TV show.
The issues pertaining to this case are twofold: Can an origami diagram be protected under the copyright law, i.e. “is it a work of art in which thoughts or sentiments are expressed in a creative way?” If so, did TBS infringe the origamist’s reproduction, adaptation or public transmission rights?
The Tokyo District Court ruled that the folding instructions are indeed a copyrightable subject matter, because (i) the author’s selection of 10 out of 32 folding steps were subject to alternative modes of expression; (ii) the author’s folding instructions, including the organization of the diagrams, the texts, and the drawings, had elements of “style”; (iii) taken in its entirety, one admittedly found room for creative expression (Tokyo District Court Opinion: Case No. Heisei 23 (2011) (Wa) 18968 (Tokyo D.Ct., May 20, 2011).
With respect to the second question of whether TBS infringed on the author’s rights to reproduction, the court dismissed the author’s claims saying that “the essential feature in the expression of the copyrighted work cannot be recognized in the TBS’s folding instructions.” The court found that the respective diagrams did share certain commonalities (e.g., they both used text). However, the court also found the following differences: (i) the origamist’s work was expletive while TBS used more details, making frequent references to the folding steps; (ii) the origamist used photos while TBS did not; (iii) the author used color-coding while the broadcaster did not.
The origamist asserted these differences were trivial. However, the court rejected the argument claiming that “the method to folding origami is in the public domain; one cannot avoid using the same folding creases or the same arrows to show the direction in which to fold the paper.” The court also asserted that the selection of 10 diagrams out of 32 steps comprises an idea and not a creative expression, and thus is not protected under the copyright law. Origamist made several other arguments, but the court rejected all of them on the same grounds.
On appeal, the IP High Court affirmed the above decision including the fact-findings of commonalities and differences (IP High Court Opinion: Case No. Heisei 23 (2011) (Ne) 10038 (IP H.Ct., Dec. 26, 2011)The author argued additionally that the folding method is not an idea but a creative expression. However, the court rejected this assertion claiming that the methods used to explain the 10 diagrams out of 32 folding steps are not copyrightable subject matter. The High Court recognized that the origamist’s instructions and that of TBS shared commonalities. However, these commonalities were functional in nature, existing for the sole purpose of giving the readers clear and simple instructions to reproduce the work. The High Court did not, however affirm commonalities in specific expressions. They also went on to say that TBS did not infringe on the author’s copyright, since they did not “reproduce” the art in a tangible form. They also did not find the folding instruction to be an expression of the essential feature of the copyrighted work.