Kurosawa films and copyright suit

[Aaron Gerow]

It is an interesting but confusing case that I have been writing  
about on KineJapan. I was initially skeptical about the studios'  
claims (note Shochiku has made a similar suit for the Kurosawa films  
it made), first because the pre-1971 law is pretty vague, and second,  
because it was so bloody hypocritical of the studios to now go around  
claiming author's rights when they have always insisted on denying  
them. But so far, the courts have been agreeing with the studios.  
Perhaps that is again indication that Japanese courts tend to side  
with corporations and those in power, but there are a lot of  
implications here.

First, it opens a can of worms about copyright that I assume the  
studios wanted to close in the 1971 revisions. It would be really  
interesting to do some hard research on what the studios did around  
1970 in lobbying for the 1971 revisions. I bet they insisted on  
changing the law to eliminate authors' rights. The problem with the  
pre-71 law is that it established several cases of copyright for  
film, some corporate, some individual. The old law states that films  
"with originality" are to be treated differently from those without  
originality. The latter is only protected for 10 years, but the  
former enjoys a longer period. The law then states that films "with  
originality" are treated in one of two ways: either copyright will be  
for 38 years after the death of the author or for 38 years after it  
was released in the case of works with corporate copyright. It was  
unclear which films fit in which case, so one of the major reasons  
for the 1971 revisions was to eliminate these differences, some of  
which are based on evaluative judgments, and competing claims.  
Basically, it gave directors authorship, but stated that when they  
make a studio film they are obliged to give up copyright to the  
studio. Studios then get the copyright for 50 years after release.  
The interpretation used in the current cases basically returns us to  
the pre-1971 mess.

Frankly, I think the studios are just trying to extend copyright, but  
I do wonder whether there are not some back room deals going on  
(Kurosawa Pro is still pretty powerful), where money is being paid to  
Kurosawa's estate secretly to keep them satisfied, without making any  
of this public in case the families of recently dead directors get  
any ideas. Or is Toho audacious enough to claim copyright revenues  
even as they assert the film is an original creation of an author?  
One wonders whether it will not take just one lawsuit by a former  
director's estate to open the Pandora's box.

Another interesting aspect to the case is that it rests on the auteur  
theory. Frankly, it is a victory for the auteur theory in that courts  
now seem to recognize that movies are works of art that are the  
product of an original mastermind, and thus that copyright should be  
evaluated from that genius, not from its industrial corporate  
location. But one can foresee the complications from that. First,  
will courts now have to stand in judgment on "originality" of  
direction? What if the pre-1954 film now on cut-rate DVD was directed  
by some unacclaimed studio hack? Or what if the family of some hack  
director who died in 1990, leaving no critically acclaimed films, but  
a number of Hibari movies that sell well on DVD, decides to sue the  
studio? Will the court now have to judge whether this director was  
"original", and if so, on what basis? Second, will courts now have to  
decide who the auteur is? What if Hibari's family gets into the mess?  
Or if a cinematographer's family argues that his contributions were  
substantial to the film? Will the courts now have to decide this?

Again, the 1971 revisions were meant to clear up this mess, but now  
we might be revisiting it. Given the state of current copyright law,  
I don't see currently active directors making similar cases in  
courts, but perhaps, as Markus wonders, a few might start calling the  
big studios on their claims and demanding more rights as they  
contract for new films. I really wonder what the Directors Guild of  
Japan thinks of all this. Anyone know?


Aaron Gerow
Director of Undergraduate Studies, Film Studies Program
Assistant Professor
Film Studies Program/East Asian Languages and Literatures
Yale University
53 Wall Street, Room 316
PO Box 208363
New Haven, CT 06520-8363
USA
Phone: 1-203-432-7082
Fax: 1-203-432-6764
e-mail: aaron.gerow at yale.edu