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Column-Copy Right

Copy Right Copy Left
Copyright Q&A from a Lawyer

The world of "copyright" that even those who are involved in manufacturing seem to know, but actually do not understand well. We asked lawyer Hiroyuki Ishii, a strong ally of creatives, to guide us through the dazzling world.

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Hiroyuki Ishii (Ishii | Takahata Law Office)
Born in 1978. Lawyer/music lover who loves JMWESTON and BAD BRAINS. I am interested in pop culture in general, entertainment and creative law.
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1 What is copyright?

For example, here is a collection of photographs by the recently deceased Ricky Powell called Public Access. Of course, this is your property, so you can lend it to your friends, give it as a gift, or sell it if you get tired of it. However, it is not allowed to sell the photo of rapper Rakim, which is the best shot of this photo book, as a T-shirt without permission. This is because we are trying to use the information (= photos) themselves that are the contents of the photo book. Ownership (= the right to possess, use, and control the disposal of photobooks as objects) extends only to photobooks, and does not extend to photographs as information. The rights to the use of this information are copyright and are believed to belong to the creator, Ricky Powell. In this sense, copyright is the right of the rights holder to control the reproduction, adaptation, and other use of the work as information. Specifically, rights holders can claim compensation for damages if their works are used without permission, and can force those who are using them to stop using them without permission.

2 How can I get the copyright?

No special procedures are required. Under the Copyright Law, it is considered that "the author acquires the copyright at the same time as the creation of the work", so there is no need to take any procedures such as application or registration to acquire the rights (non-formalism, copyright Article 17, Paragraph 2 of the Rights Act) In other words, if a creator designs a logo, takes a picture, or simply creates a work, it is protected all over the world from that moment.
On the other hand, unlike the Copyright Law, the Trademark Law adopts the principle of registration in order to obtain rights, and it should be noted that it requires application and registration with the Patent Office.

3 Then, please tell me about the difference between copyright and trademark right.

Both copyright (= ©︎) and trademark right (= ®︎) belong to the category of intellectual property rights. rights relating to the information itself”.
In the first place, the Copyright Act is a law whose ultimate purpose is to "contribute to the development of culture" (Article 1 of the Copyright Act). (Trademark Law, Article 1). In other words, it can be said that copyright law is to develop "culture" and trademark law is to promote "industry", that is, business. Therefore, the object of protection under the Copyright Act is "concrete works" such as novels, movies, music, paintings and photographs. On the other hand, the Trademark Act protects trademarks, that is, ``marks and brands for distinguishing one's own goods and services from those of others''.
In this way, copyright and trademark rights are independent rights protected by separate laws, so a registered trademark (imagine the famous <SUPREME> box logo, for example) can be used as a creator's work as a product or product. The service mark and brand will also be protected. However, the copyright owner and the trademark right owner are not necessarily the same entity. This is because the copyright belongs to the creator (who seems to be a friend of <SUPREME> founder James Jepier) at the same time as the creation of the work, but the trademark rights belong to the applicant (Supreme Inc.).

4 Doesn't copyright hinder creativity?

Of course there are many such cases. The ones that immediately come to mind are artists such as De La Soul and A Tribe Called Quest, who emerged in the late 1980s and used a lot of third-party sound sources to produce creative works. In the end, I have the impression that the production method of sampling itself gradually lost its luster as the sampling side continued to lose lawsuits in the 1990s. As for De La Soul, none of the early works from the <TOMMYBOY> era have been released digitally as of yet. It seems that not only the relationship with the label itself, but also the issue of rights processing has not been resolved.
Most recently (although it was about three years ago), Robin Thicke and Pharrell ended up paying about $5 million after losing a copyright infringement lawsuit against Marvin Gaye's family. The case is based on the fact that the Marvin Gaye song "Gotta Give It Up" was not sampled, but rather that their song "Blurred Lines" is similar in style and feel to the same song. I have been found infringing. The chord progression is completely different, and in fact, the super-famous music producer Rick Rubin seemed angry.
I think there is currently a consensus on avoiding bold sampling without permission, but overly broad and unclear scope of music copyright is one of the factors that hinder free creative activities. It seems to be said that it is.
On the other hand, regarding the issue of copyright and creativity, I feel that The KLF has completed contemporary art by showing a stance that is not bound by copyright. Their first album, "1987", was full of unauthorized samples, including ABBA songs, so the copyright management organization demanded the collection of the album and the delivery of the master, and then the rights were processed. The story of releasing the album ``1978 (TheJAM45Edits)'' that has no sound at all, deleting the parts that are not there, is too famous. It is cool. A post-punk artist. The official name is "KOPYRIGHT LIBERATION FRONT" (if I remember correctly...). In addition, they retired in 1992 with all their works out of print, but on New Year's Day 2021, they suddenly revived for the first time in 29 years.


5 Recently, I often listen to DJ livestreams.Is that legal?

This question is asked very often. This is another example of the conflict between copyright and creativity. However, at this time, we believe that it is extremely difficult to legally handle all rights and perform DJ live distribution as shown below.
Of course, when performing live distribution of DJs, it is premised that the sound source itself such as records and data owned by a third party will be used. It is also necessary to process the rights regarding the master record rights (formally known as "rights of record producers"), which are rights related to sound sources fixed to records and data.
In Japan, copyrights can be handled by paying copyright royalties to a copyright management organization such as JASRAC (However, for so-called unmanaged songs that are not managed by a copyright management organization, the rights are handled separately. It needs to be processed, which seems to be the majority of club music that is released only on vinyl).
However, since there is no management organization such as JASRAC for master rights, it is necessary to obtain permission to use each sound source directly from the master rights holder. However, (especially in the case of underground works), I think there are many cases where it is not known who the original rights holder is, and if the rights were to be handled seriously, it would take a tremendous amount of time (and money!). so it's not very realistic. It is necessary to change the situation in which the rise of DJ culture is hindered by copyrights that exist to develop "culture". For example, we will create a group like "SoundExchange" in the United States that can handle everything from master rights to copyrights, and create a system that allows the use of unmanaged songs freely by paying a certain amount of compensation. It is considered necessary (this is what many people say...).