December 5, 2019
By Kodai Kimura
During my stay in New York City, one of my favorite pastimes was visiting public works of art and fantastic museums. One day when I was walking along 55th street humming a Beatles song I came across a public piece of artwork, the “LOVE” sculpture by the American artist, Robert Indiana. I knew the work because it was really famous and was also installed as a public piece of artwork at Shinjuku in Tokyo, Japan. After a 40-minute walk, finally I arrived at the Guggenheim Museum. I then realized that I needed some gifts for my wife and was reminded that she likes miniature replicas, so I thought it would be great if there were smaller scaled versions of the LOVE sculpture and the Guggenheim Museum’s Frank Lloyd Wright Building.
Given the fact that I am a lawyer, I could not avoid considering the laws that affect works of art and architecture from the perspective of intellectual property law. In the U.S., the Copyright Act (17 U.S.C.) section 120(a) states that
the copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
Under this provision, I would be able to photograph the Guggenheim Museum but would not be allowed to produce it as a three-dimensional miniature replica since it does not come under “pictorial representations of the work.” On the other hand, there is no specific exception dealing with the reproduction of an artistic work located in a public place. Therefore, it would be difficult to justify that the sales of photographs or miniatures of the LOVE sculpture, without the artist’s permission, are within Fair Use under section 107 of the Copyright Act.
Let us assume that this is Japan though; of course, both “artistic work” (like the LOVE sculpture) and “architectural work” (like the Guggenheim Museum) are protected by the Japanese Copyright Law. In Japan however, there is also a difference between them, unlike the U.S.
For an artistic work, Copyright Law confers a reproduction right to the copyright holder like an artist. On the other hand, Article 46 of the Copyright Law states that “It is permissible to exploit an artistic work the original copy of which is permanently installed in an outdoor location…or an architectural work, in any way whatsoever…” Therefore, since the LOVE sculpture is permanently installed in an outside space, I can photograph it. The same provision applies to the Guggenheim Museum as an architectural work.
However, it is important to note that there are exceptions to this general rule. Article 46 of the Copyright Law additionally states that:
It is permissible to exploit an artistic work the original copy of which is permanently installed in an outdoor location… or an architectural work, in any way whatsoever except for the following:” and one of four exceptions says that “(iv) reproducing an artistic work solely for the purpose of selling copies of it, or selling such copies.
This means that like the U.S., if I want to create and sell miniature replicas of the LOVE sculpture, I must obtain permission from the artist.
In 2001 there was a Tokyo District Court case (July 25, 2001, Hei 13 (wa) No. 56, 1067 HANTA 297), where a publisher was sued for copyright infringement, by an artist who painted a painting on the surface of a bus, since the publisher used the artist’s work as a book cover illustrating various kinds of cars for children without the artist’s permission. The court found that the bus was “permanently installed in an outdoor location” since the bus runs on a public road which is open to the general public. The plaintiff argued that the bus is not “permanently” installed since the bus is located in a car park during the night. Also, the plaintiff asserted that the bus is not “installed” because the bus moves around. However, the court denied the plaintiff’s argument by reasoning that it would be usual to prohibit entry or viewing during night time for security reasons even for typical works of art. Furthermore, the court observed that “installed” is not limited to being fixed at any real property or a specific location, just as long as the location was outdoors.
For the application of item (iv) of article 46, the court held that the use of the artwork by the publisher does not fall within “solely for the purpose of selling copies of it, or selling such copies” since readers would understand that the book cover indicates one example of cars which are introduced in the book etc. In conclusion, the court dismissed the artist’s claim. In this way, the application of this provision is not crystal clear.
What happened if the work was an architectural work? Item (ii) of article 46 of the Copyright Law states ”reproducing an architectural work by means of construction, or offering the copies of an architectural work so reproduced to the public by transferring them” as an exception. This means that you need a copyright holder’s permission if you would like to build another Guggenheim Museum. How about item (iv) of article 46? This provision does not include “architectural work.” Therefore, a miniature replica, and not an architectural reproduction of the Guggenheim Museum would not be within the scope of this provision.
Is it clear if a work falls within either “architectural work” or “artistic work”? My answer is unfortunately no. Let us take the “Tower of the Sun” by the deceased Japanese artist Taro Okamoto, which is located at the Expo Commemoration Park, in Suita, Osaka. This work is around 70 meters in length and has an open ceiling space inside (not currently open to the public due to earthquake resistant problems). Legal scholars point out that this work would fall within both “architectural work” and “artistic work.”
After some legal analysis, I finally stopped looking for a smaller gift to avoid my wife’s misunderstanding that my love for her is in any way small or miniature. Anyhow, I would like to conclude this article saying that if you are intending to start a miniature replica business in Japan, all you need is a legal advisor.
* About the Author: Kodai Kimura is an attorney admitted in Japan and New York, and currently works for a private law firm, Yuasa and Hara in Tokyo. During his stay in New York, he received an LL.M in IP from the Benjamin N. Cardozo School of Law, and a Certificate in Art Business from Christie’s Education. He also undertook work experience as a legal intern at Danziger, Danziger & Muro LLP.
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.