AMPONTAN

Japan from the inside out

Tattoos, copyrights, and human rights

Posted by ampontan on Monday, August 29, 2011

THE illogical logic sometimes used to interpret the law, particularly in civil suits, has long been a cliché in the West. For several reasons, one of which was a cultural tendency to avoid litigation altogether, logic of that sort had fewer opportunities to sprout in Japan. The non-native invasive species seems to have finally established itself, however, as a Tokyo District Court ruling last month suggests.

The case involved the cover of an autobiography written by a man who described his efforts to pass the test to become an administrative scrivener (or “certified administrative procedure specialist”) in the Japanese legal system. The man had the image of a Buddhist statue tattooed on his left thigh in 2001. When the autobiography was published in 2007, a photograph of the tattoo was used for the cover, though the photo was printed in sepia and used reverse shading. (The book is still in print, and the cover is shown next to the paragraph below.)

The tattoo artist sued for infringement of copyright, while the author countered that the tattoo was nothing more than a copy of a photo of the statue. Here come the judge: His honor ruled in favor of the plaintiff, saying that a tattoo could be covered by copyright if the artist’s conception was expressed in an original way. He also ruled that placing the tattoo on the book cover without citing the artist’s name was “an infringement of the human rights of the copyright holder”, and awarded the artist JPY 480,000 as compensation. That’s a skoche less than $US 6,300.

Explained the judge, “The tattoo differs in expression from the photo (of the statue), and presents the conception and emotions of the artist.” The human rights infringed were the right to decide whether or not the name of the copyright holder should be cited, and the right to prevent the display of an altered form of the copyrighted object without permission.

From the official records:

“It is recognized that creative devices were employed for the composition of the tattoo design and for the expression of the statue. Different tools and techniques were used for the outline and the other lines, as well the gradation of tone. The originality of expression of the plaintiff’s conception and emotions can be recognized. Therefore, it can be affirmed that the tattoo in question has copyrightability.”

The ruling also held that the techniques used to display the photo on the book cover were an infringement of the right to retain integrity.

Prof. Yamada Hajime of the Toyo University School of Economics objected on his website that the verdict was nearsighted and overly legalistic. Prof. Yamada notes that the city of Kobe is conducting a campaign to encourage the use of a local seashore area. Part of their campaign is based on a municipal ordinance that prohibits smoking, littering, and the exposure of tattoos outside designated areas. The ordinance forbids the “ostentatious display” of tattoos, as well as coarse and rough behavior, because it could cause other users of the seashore to become uneasy or frightened.

Japanese concerns about the public display of tattoos stem from the well-known yakuza taste for using them to decorate their bodies. But the gangsters usually show some discretion (or retain the means to smoothly conduct their daily affairs) by limiting even the most elaborate of tattoos on the upper body to the area that a t-shirt would cover.

Prof. Yamada pointed out that sports facilities have similar rules (though he didn’t mention public baths, many of which have a sign in front of the establishment notifying customers that people with tattoos will be denied entry). He takes issue with the decision by carrying its logic to the extreme. For example, anyone who had second thoughts about a tattoo and removed part of it due to social disapproval could theoretically be held to have infringed the right to retain integrity. He also mentions the suggestion of an acquaintance that merely getting fat could also infringe that right.

Finally, he cites one provision of Japanese copyright law that states: “The objective of protecting the rights of the copyright holder is to contribute to the development of culture.”

How, Prof. Yamada asks, does this contribute to the development of culture? It doesn’t, of course, but it’s worthy of note that some in Japan are still asking the question. Ask that question in the United States and you’re likely to be branded a philistine.

*****
The issue of copyrighting tattoos has also arisen in the West. It’s a complicated issue there, too (but unfortunately the problem with the WordPress software that keeps me from adding hotlinks for some reason continues from yesterday). The question in the United States, however, usually involves tattoo artists copying the work of another artist, rather than the point at issue in the Japanese case.

I tried to conduct some discovery but was unable to determine whether the Japanese tattoo artist had legally copyrighted the tattoo before bringing the suit.

*****
Why not take this opportunity to wander over to the right sidebar to examine the link to the Japanese Tattoo Institute, with examples of the ultimate in the art? They sell calendars too. There’s also a link to the excellent Hanzi Smatter site, devoted to the presentation and explanation of the unusual kanji that Westerners tattoo on their bodies. You’ll never laugh at the strange English on t-shirts and signs in Northeast Asia again. At least they’re easily disposable.

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