## Facts

- A weekly pictorial magazine photographed, without consent, a criminal defendant involved in a highly publicized murder case while she was in a courtroom.
- The photographer took the picture secretly, using a small camera, and did so without the court’s permission.
- The photograph depicted the defendant in custody, including being handcuffed and tied at the waist.
- The magazine later published illustrations of the defendant’s face and appearance with an article criticizing her for bringing a damages lawsuit.
- Some illustrations depicted the defendant’s ordinary courtroom conduct (reading materials, speaking and gesturing), while another depicted her being physically restrained by handcuffs.
- The defendant sued the publisher for damages in tort under Civil Code arts. 709–710, asserting infringement of a legally protected interest in her portrait.
- The lower courts reached mixed results, and the publisher appealed.

## Issues

1. Whether a person has a legally protected interest not to have their face or appearance photographed without consent, and when unauthorized photography constitutes a tort.
2. Whether secretly photographing a handcuffed criminal defendant in a courtroom, without court permission, is tortious.
3. Whether a person has a legally protected interest not to have illustrations of their likeness published without good reason, and how illustrations affect the tort analysis.
4. Whether publishing illustrations of a defendant’s ordinary courtroom demeanor is tortious.
5. Whether publishing an illustration depicting the defendant physically restrained by handcuffs is tortious.

## Decision

- The Supreme Court held that any person has a legally protected personal interest not to have their face or appearance photographed without good reason.
- The Court adopted a contextual test asking whether the person’s interest was injured “beyond the tolerable limit in social life,” considering social status, activity, place, and the purpose, manner, and necessity of the photographing.
- Applying that test, the Court held that secretly photographing the defendant inside a courtroom, without permission, while she was handcuffed and tied, constituted a tort.
- The Court held that a person also has a legally protected interest not to have illustrations of their face or appearance published without good reason, but the analysis must account for the expressive and interpretive nature of illustrations.
- The Court held that publishing illustrations depicting ordinary courtroom behavior (reading materials; speaking and gesturing) did not exceed the socially tolerable limit and was not a tort.
- The Court held that publishing an illustration depicting the defendant physically restrained by handcuffs exceeded the socially tolerable limit and constituted a tort.
- The judgment was partially quashed and remanded and partially dismissed, consistent with the above liability determinations.

## Legal Principles

- A person has a legally protected personal interest in not having their face or appearance photographed without good reason; infringement may be remedied as a tort under Civil Code arts. 709–710.
- Tort liability for unauthorized imaging turns on whether the interference exceeds the “tolerable limit in social life,” assessed in context (including status, activity, place, and purpose, manner, and necessity).
- Courtroom setting and surreptitious method weigh strongly toward illegality, particularly where the depiction emphasizes custody and physical restraint.
- A person also has a legally protected interest in not having illustrations of their likeness published without good reason, but illustrations require attention to their character as expressive works reflecting the author’s viewpoint and technique.
- Even non-photographic depictions can be tortious where they unjustifiably intensify stigma or degrade personal dignity (e.g., emphasizing handcuffs), while neutral depictions of ordinary behavior may be permissible.

## Conclusion

The Supreme Court recognized a legally protected interest in one’s image and held that liability for unauthorized photographs or illustrations depends on whether the interference exceeds the socially tolerable limit, finding tort liability for secret courtroom photography and a handcuff-focused illustration but not for neutral illustrations of ordinary courtroom conduct.


Right to Use a Photograph or Image (Sup. Ct. Japan Nov. 10, 2005)