"Unauthorized Komukai striptease photos highlight copyright dilemma in Japan"

Another interesting article in today's Japan Today dealing with photography, image rights and permission...

Many stood in the long queue and paid 8,000 yen to see the nude performance by Minako Komukai in Asakusa. Those who couldn’t go to the striptease were in glee to see the spy photo published in the June 26 edition of the weekly Friday, of Komukai exposing her breasts to the audience.

But the question is, what happens when someone takes a photo of such performances without permission? A sign at the entrance of Asakusa Rock-za clearly states that the theater will impose a penalty of 3 million yen for unauthorized taking of photos, and the same announcement is made in the theater prior to performances.

Obviously, taking such photos are a problem if the theater explicitly prohibits it, which, legally speaking, is about the theater’s right to maintain and manage the facility. Attorney Kensaku Fukui, who specializes in copyright laws, explains, “The theater has the right to prohibit activities it deems to be an obstruction of the performance.”

So what happens when someone in the audience secretly films or photographs the performance?

“There are several possibilities,” Fukui says. “If the theater staff witness someone taking photos, they have the right to stop the act or tell the particular individual to leave the theater.”

The penalty of 3 million yen may not have legal effect, since the prerequisite is the existence of an agreement between the party notifying the penalty and the party being notified. On the other hand, if the theater does incur damages due to such actions, it is entitled to make claims for the damage, even though the amount may be limited.

However, the case of Friday, which profited by publishing an image owned by one audience member, is a different matter altogether. From the perspective of Rock-za, the publication would be considered an obstruction of business. Indeed, it appears that the theater is considering the option of filing a lawsuit against the weekly magazine, which in turn may develop into further complications involving the violation of Komukai’s privacy and portrait rights.

Other businesses face the problem of similar infringement of copyrights, an example being pirated DVDs. In 2007, a special law went into effect to protect movies—with a penalty of 10 million yen or up to 10 years’ imprisonment for any violation. However, the law only applies to movies.

Theaters that offer a range of performances such as dramas, musicals and kabuki have no choice but to devise their own methods of “self-defense.” Kabuki-za, Shiki Theatre and Honda Theatre in Shimokitazawa say that if they catch someone in the act of taking photos or filming a performance, they confiscate the camera, delete the data and then hand it back to the individual. But they say they do not consider lawsuits as an option.

One organization known for its aggressive protection of copyrights is Tokyo Disneyland, which regards everything from taking photos with Mickey Mouse to the facility and attractions as copyrighted. Whether posting on one’s personal blog, the uploading of films and images is defined as “an unpermitted news-gathering act” and they request the individual to delete such data. In fact, a group in Chiba was arrested two years ago for selling DVDs showing parades at Disneyland.

In other words, unauthorized shooting applies to motion pictures only, and from this perspective, theaters do not have the legal means to protect their business from damages resulting from pirated copies. In effect, the publication of Komukai’s nude photo in Friday has unexpectedly called into question this copyright dilemma.