Are store flyers considered copyrighted works? An in-depth explanation of the copyright of promotional materials!

It is common to create and distribute flyers to advertise your store.

In one case involving store flyers, there was a dispute as to whether a competitor had copied the company's flyers and whether copyright had been infringed. In January 2019, the Osaka District Court ruled that copyright infringement was not alleged, stating that the expressions on store flyers do not constitute "works of authorship."

Why were store flyers deemed not to be "copyrighted works"?
This article will provide a clear explanation of the key points of this lawsuit.

What kind of trial was it?

Background and overview of this case

Company X (plaintiff) operated a contact lens store under contract with Company Y (defendant).

Subsequently, when the operating contract was terminated, Company Y decided to operate its own contact lens store in the same location and created and distributed flyers (defendant's flyers) for sales promotion. However, these defendant's flyers were very similar to flyers (plaintiff's flyers) that Company X had created and distributed in the course of operating its contact lens store.

The current lawsuit was brought against Company Y by Company X, seeking damages on the grounds that the defendant's flyers infringed the copyright of the plaintiff's flyers.

(Source) Court website:https://www.courts.go.jp/app/files/hanrei_jp/413/088413_option1.pdf

What was the legal issue?

First, in order for copyright infringement to be recognized, the plaintiff's flyer must be a "work of authorship."
Company X (plaintiff)

Regarding these matters, the court argued that both are creative expressions and therefore qualify as "works of authorship." 　
On the other hand, Company Y (defendant) argued that none of the expressions were deemed to be "copyrightable works."

Are retail store flyers considered "copyrighted works"?

What is a "work"?

A "work" is defined as a creative expression of ideas or emotions that falls within the scope of literature, science, art, or music (Article 2, Paragraph 1, Item 1 of the Copyright Act).

In order for a work to be considered a "work" under the Copyright Act, it must meet the above four requirements.

What is "creatively" expressed?

Of the four requirements for a work to be copyrighted, the requirement that it be "created in a creative way" (the creativity requirement) is one that is often an issue.

In order for a work to be considered "creative" under copyright law,It is sufficient if some personality of the author is expressed.It is loosely interpreted as such. It goes without saying that novels, paintings, music, etc. are copyrighted works, but diaries, letters, children's drawings and compositions, etc. are also widely recognized as "creative."

However, when an existing work is copied faithfully, the individuality of the copyist is not expressed, and therefore "creativity" is not recognized.
In addition, in cases where anyone would have to use almost the same expressions (when unavoidable expressions are used) or where the expressions would be almost the same no matter who created the work (when common expressions are used), it is considered that the author's individuality is not expressed, and therefore "creativity" is not recognized.

In this case, the tweet was found to be creative.

Copyrightability of retail store flyers

Do the plaintiff's flyer's promotional slogans, comparison tables, and explanatory text qualify as "copyrightable works"?
Let's start by looking at each of these disputed expressions.

(Note) The parts in red are added by the author. The illustrations of the boys and girls in the plaintiff's flyers were free icons found on the Internet, and X Company (plaintiff) does not own the copyright to them, so they are not the subject of this lawsuit.

　The main issue in this trial was whether each of these expressions could be recognized as "creative."

As mentioned above, in order for "creativity" to be recognized, it is considered sufficient that some aspect of the author's individuality is expressed.
Considering that even a child's drawings or essays can be recognized as "creative," it would seem that the plaintiff's flyers should also be recognized as "creative."

However, the court ruled that none of the expressions in the plaintiff's flyers were found to be "creative."
The reason given is that it is "nothing more than a common expression" to describe a business model in which people can immediately purchase contact lenses without visiting an eye doctor or having an examination.
In other words, the evaluation was that, due to the purpose and nature of the expressive act, if anyone tried to express a similar business model, the resulting expression would be roughly the same no matter who did it.

So, even if the advertising slogans, comparison tables, and explanatory text themselves cannot be recognized as "creative," can't the expression created by combining them be recognized as "creative"?

The court also denied the lack of "creativity" in this regard.
It is stated that the combination of a promotional copy, a comparison table and explanatory text in order to emphasize something and convey it clearly is not in itself a distinctive technique.

Summary

This time, we have looked at the criteria for determining whether a product can be considered a "work of authorship" using store flyers as an example.

In the court cases discussed above, store flyers were not recognized as copyrighted works, but this does not mean that store flyers are completely exempt from copyright.
In order to utilize this in your company's promotional and advertising strategies, it is important to understand why the work was not recognized as copyrightable this time.

When conducting sales activities, it is essential to make use of promotional materials, including flyers.
Many people may have concerns or worries, such as whether their company's materials are protected as "copyrighted works" or whether they are infringing on the copyrights of others.
In such cases, we recommend that you consult with a professional who will think things through with you.