[KineJapan] Copyright-free images

Mon Sep 22 09:35:39 EDT 2014

I don't have experience on this with Japanese publishers, but did discuss this with Shouchiku at one point.

For my article on Shashin Shousetsu (in _positions_) the  日本文藝家協会 said the following about the images (they are quotations and OK in that respect, but you need permission from the actors):

> 拝見し、検討いたしました結果、著作権法上の適法引用であるという結論にいたりましたので、当協会の委託作品につきましては、許諾を得ることなく使用なさることができます。
> ただし、写真に写っている俳優さんの権利許諾を得ていただく必要がありますので、直接ご連絡をおとりください。

Shouchiku said that since most of the actors were ones for whom they had no contact information and in many cases deceased, they could not help with the permission but that it was required even so. Shouchiku did say that if they had been taken from a movie, the permission _could_ be granted by Shouchiku itself. But if they were taken separately by a photographer as in promotional images or the posed stills I was using, direct permission was needed:

These are my question and responses (here in English so the publisher could read them):

"1.) In Japan, is it unnecessary to receive permission from a deceased individual's family to reproduce that person's image?  Is permission unnecessary in that case?   
Shochiku→ It is necessary to receive permission from a deceased family to reproduce that person's image.  For example, whenever we use Yasujiro Ozu's portrait, we ask Ozu's family for permission. 

2.) In the case of for example movie stills, is permission from the actor necessary?  Or only from the studio or other copyright holder?  For example, to show an image in a book from Ozu's Tokyo Monogatari, do we need Hara Setsuko's permission, or just Shouchiku's?   Although what I am using are not from movies exactly, it is a similar situation.  The people photographed are actors playing roles for the photographer.  They also were working for Shouchiku, Toho, and other studios. 

Shochiku→If the stills are from movies which Shochiku provided, it is unnecessary to receive permission for the actor/director but Shochiku's permission is needed. However, if the stills are not from movies, you have to ask permission from the photographer and actor/actress." 
---

In the end, I published the images with the following arguments: 1.) I made every attempt to contact the people in the images - and I did look up any I could find 2.) I had permission from the studios who employed the actors where those studios were extant 3.) the issue with images of an individual are about the 人権 clause and there was no infringement here. #3 may be shaky but I made the argument after reading the copyright law. There were a few more typical wartime images that I did not use for this reason. Hara Setsuko appeared in shashin shousetsu, but I didn't go there because it seemed like it would be complicated and they were not that exciting beyond stardom. 

Now that I have discovered the prevalence of shashin shousetsu much earlier in girls' magazines, including a very early Sansho the Bailiff from the Taisho era, I'd love to write more about that. But going through that process again scares me.

Good luck to us all!

Sarah Frederick 

On Sep 22, 2014, at 8:05 AM, Mark Roberts wrote:

> Hi Greg,
> 
> Thanks for filling in the details. I’m not dealing with U. of Tokyo Press, just the research center — can’t speak for the policies of the press on this. However, I’m struck by the variety of responses to the law on inyô. Some parties seem to feel that a DVD still is a quotation and they go with the law. Others want a more literal interpretation, so the law doesn’t speak to them and they follow the interpretation of the rights holders and their representatives.
> 
> My guess is that this ambiguity will likely persist until such time that the law is amended to define more explicitly what a quotation is, e.g., that a DVD still would unambiguously qualify as a quotation. Given the strength and interests of the rights holders in Japan, I have no reason to believe this change will happen anytime soon. In my experience, at least, the research community here is going to defend the rights holders before it defends the rights of other researchers.
> 
> This is unfortunate, because it means that collaborative publishing projects with Japanese institutions may be too risky for foreign researchers. I would certainly think twice before ever considering it again.
> 
> M.
> 
> 
> 
> On Sep 22, 2014, at 2:59 PM, Gregory Johnson <gsjohnson at otsuma.ac.jp> wrote:
> 
>> 
>> Mark, That's University of Tokyo Press東京大学出版会?  Thanks for the warning! I shutter to think of a classroom shot from the 30s or 40s filled with unnamed extras or in my case, real pupils. I haven't asked NHK about DVD stills. I don't have a DVD. I initially wanted to show short wartime newsreels from the NHK online archive at a conference. Having no information on internet availability for a conference room that had not yet been assigned, I was concerned I'd arrive intending to talk about a newsreel but be unable to show it. I asked NHK if I could buy a DVD of the newsreels. I was told  相当の時間と経費が必要となります...（1分で12万円程度とVTR制作諸費用. So I went sans DVD. Fortunately, the internet was connected to the conference room (about 6 minutes before the panel started). The most I can say is that the section of NHK in charge of that material told me the use I described for a journal article was fair use under legal 引用 provisions. I also contacted the publisher 日本図書センター about reproducing  four photos from two of their books and they also said okay based on 引用. I don't know yet what the non-Japanese journal publisher will require because my collaborators and I are still considering where to submit.
>> 
>> Speaking of institutional paranoia, I've had Japanese archives place rules on the use of their material that seem to surpass legal requirements. After spending a week at a prefectural archive that had copies of the historical materials held by each school in the prefecture, I was told as I bid the until then very helpful staff farewell that I needed permission from each current principal of the school before quoting or even referring to the material. Some principals wanted to see what I was going to write first. Of course I couldn't do that. A city archive in another prefecture with the same type of historical school material made no such restrictions. 
>> 
>> An American colleague told me that he hired a Japanese agent to obtain permissions for one of his books and the agent had no trouble doing so. Does anyone have experience doing this? 
>> 
>> Greg Johnson
>> 
>>> On Sep 21, 2014, at 11:36 AM, Mark Roberts <mroberts37 at mail-central.com> wrote:
>>> 
>>>> To resume this thread: while NHK may be taking the position that DVD stills are quotations, a number of other organisations in Japan do not agree.
>>>> 
>>>> For example, I have been trying to publish several essays with DVD stills through the University of Tokyo. It's a small-format academic booklet, primarily for research libraries. The images are monochrome. The booklet will not be sold for money. 
>>>> 
>>>> I have been through this before, and with the generous help of members of KineJapan, managed to sort it out. From that, I thought Todai had agreed that DVD images may be treated like quotations. However, they changed their position ex post facto, after all the editorial work was done. 
>>>> 
>>>> Although I explained that there is consensus in our field on fair use of DVD images, that section 32 of the Japanese copyright law allows quotations, that the case of Uesugi Satoshi vs. Kobayashi Yoshinori sets a precedent for academic use of images in critical analysis, that NHK supports this policy, and that North American publishers do not require permissions — in spite of all that, Todai phoned Shochiku to “check” on the law (even though we are not using images from any Shochiku films), and then contacted CRIC and JCOPY. Their position is that we really do need these permissions and portrait rights.
>>>> 
>>>> I don’t know how long it will take to track down all of these rights, and I can’t really imagine pestering the families or heirs of directors/talent for such a low-level request. I feel bad that my colleagues are even spending time on this, though it seems to be their conviction that we must. I could understand the rationale for contacting production companies that still exist, but the claim that we need portrait rights as well seems rather excessive. After all, these are images of actors working for production companies, playing fictional characters in narrative films — not paparazzi photos. 
>>>> 
>>>> It is not clear to me that Todai completely understands they are taking the position that we need permission each time we quote a primary source. Needless to say, in other fields of the humanities, such a stance would likely do immense harm to research. I have tried to explain that imposing such strict requirements on locating permissions could have a glaciating effect on future collaboration with Japanese institutions, but this concern has also been dismissed. 
>>>> 
>>>> Interestingly, Todai says that section 32 of the copyright law may be “too old”, but no other ‘newer’ laws are being cited. It’s all about what these other organisations say, starting with Shochiku. At this point, I can’t tell if we’re even operating in the realm of law, or it’s more the say-so of the copyright lobby mixed with institutional paranoia.
>>>> 
>>>> If anybody has any suggestions about a line of argument against this position, I would be very curious to hear it. I am concerned this could delay publication for months or require that we ask the contributors to rewrite their articles and drop images for which we cannot secure permission.
>>>> 
>>>> M. Roberts
>>>> Research Fellow, University of Tokyo Center for Philosophy
>>>> http://utcp.c.u-tokyo.ac.jp/blog/mark_roberts/index_en.php
>>>>>  
>>>>> 2014-09-11 2:16 GMT+02:00 Markus Nornes <amnornes at umich.edu>:
>>>>> From the POV of North American publishing, the question of frame grabs (from video or film) appears settled. There are good posts on the background for this on the SCMS website and Bordwell's blog. They consider it the equivalent of a quote, so no need to contact rights holders. Obviously, NHK is taking this position. Good for them!
>>>>> 
>>>>> (This has, by the way transformed book design. Now many publishers use page layouts that accommodate small images, since DVD grabs pixel out when blown up.)
>>>>> 
>>>>> So I would assert fair use and let the publisher lead the way. If they balk, you could try showing them the websites above, although they are aimed primarily at American publishers. 
>>>>> 
>>>>> I once worked with a press that was sitting on the fence. I pointed out that if anyone is going to get sued over this, it'd be Thompson and Bordwell. Their textbooks make a lot of money and they've never paid for frame blow ups. 
>>>>> 
>>>>> As for the photo from the children's book, you couldn't claim fair use unless the book itself was the object of analysis. 
>>>>> 
>>>>> Markus
>>>>> 
>>>>> PS: Covers are another matter. As PR instruments, they are not covered by fair use principles. 
>>>>> 
>>>>> 
>> 
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