## Facts

- A professional tattooist (plaintiff) was hired to design and tattoo an eleven-faced Kannon (Buddhist deity) on an author’s (defendant’s) left thigh.
- The author provided a photograph of a statue of the eleven-faced Kannon as a reference. The tattooist used the photo in preparing the draft but made aesthetic and compositional choices, including changes to the deity’s facial expression and rendering.
- The tattoo was completed over multiple sessions in late 2001.
- Before the later dispute, the tattooist himself published photographs of the completed tattoo in magazines and online, including in advertising placements for his tattoo work.
- Years later, the tattooed author wrote a book describing the tattoo’s personal meaning and the author’s later regret about getting it. The book mentioned the tattooist, but the references were not especially negative.
- Without the tattooist’s permission, a photograph of the tattoo was used on the book’s front cover and inside pages, and was also used in online advertising connected to the book on the defendants’ websites.
- The published image was edited into a processed version, including reversing light and shadow and converting the image to a sepia-toned monochrome look.
- The tattoo image was published without crediting the tattooist as the author of the tattoo.
- The tattooist sued the author and the publishing company seeking damages, alleging infringement of his moral rights (right of publication, right of attribution, and right of integrity) and also alleging violations of personality/privacy interests based on certain book passages.

## Issues

1. Whether the tattoo, though fixed on a human body and created using a reference photograph of a statue, had sufficient originality to qualify as a copyright-protected work under Japanese law.
2. Whether using the tattoo photograph in the book and in online advertising without naming the tattooist infringed the tattooist’s moral right of attribution.
3. Whether the defendants’ processing of the tattoo photograph (shadow reversal and sepia monochrome conversion) constituted an unlawful modification infringing the tattooist’s moral right of integrity, including whether the edits were excused as “unavoidable.”
4. Whether the defendants infringed the tattooist’s moral right of publication, given the tattooist’s prior publication of the tattoo photographs.
5. Whether book passages discussing the tattoo and referring to the tattooist or his studio violated the tattooist’s personality right or privacy right.
6. What monetary relief was appropriate for any proven infringements.

## Decision

- The court held the tattoo qualified as a copyrightable work because the tattooist’s creative choices produced expressive differences from the reference statue photograph, reflecting the tattooist’s individual creative expression.
- The court found no infringement of the moral right of publication because the tattooist had already made the tattoo public by publishing its photographs before the defendants’ uses.
- The court found infringement of the moral right of attribution because the defendants published the tattoo image in the book and on related websites without crediting the tattooist, and the defendants did not prove that omission of the author name was consistent with fair practice in this context.
- The court found infringement of the moral right of integrity because the edited version of the image (including shadow inversion and sepia monochrome processing) constituted a modification of the work’s expression and was not justified as an unavoidable change.
- The court rejected the tattooist’s claims based on personality/privacy interests, concluding the book’s discussion of the author’s regret did not amount to an unlawful attack on the tattooist’s reputation and did not unlawfully disclose protected private facts about the tattooist.
- The court awarded damages and interest, ordering:
  - JPY 240,000 jointly and severally against the author and publisher for the book-related uses, and
  - JPY 120,000 against the author for website-related uses and JPY 120,000 against the publisher for website-related uses (separately),
  plus interest from the dates set out in the judgment, while dismissing the remaining claims.

## Legal Principles

- A tattoo can be a copyright-protected work when it contains original creative expression, even when created with reference to an existing photograph or statue.
- A client’s provision of a reference image or requested subject matter does not, by itself, make the client a joint author when the tattooist determines key expressive elements and performs the execution.
- The moral right of publication generally does not apply once the author has already made the work public through prior publication of copies (such as photographs published by the author).
- The moral right of attribution is infringed when a work is publicly reproduced or displayed without identifying the author, unless omission is justified by recognized fair practice or the author has consented.
- The moral right of integrity is infringed by nontrivial, unauthorized changes to the work’s expression; image processing for a book cover or marketing does not automatically qualify as an excused, unavoidable modification.
- Personal narrative about a tattoo’s meaning and regret does not, without more, establish a violation of the tattooist’s personality or privacy rights merely because it may reflect negatively on the author’s feelings about the tattoo.

## Conclusion

The Tokyo District Court treated the eleven-faced Kannon tattoo as a protectable work and held the author and publisher liable for using an altered, uncredited tattoo image in a book and online advertising, finding infringement of the tattooist’s moral rights of attribution and integrity while rejecting claims for publication-right infringement and for personality or privacy harms.


Tokyo Chihosaibansho Minji Dai 40-bu, Heisei 21 (Wa) no. 31755 (2011)