Commercialisation of sports events
i Types of and ownership in rights
The key sports-related rights that can be exploited in Japan are broadcasting, merchandising, sponsorship and ticketing rights.
There are no Japanese laws specifically governing the broadcasting rights of sports events, and broadcasting rights are generally set out in the facility management rights of the owner of the venue at which the sports event is held. Therefore, a party that has the facility management rights of the venue will primarily have the broadcasting right. However, to increase the profits of a sports competition or league as a whole, some sports governing bodies or event organisers will implement rules in their regulations stipulating that the broadcasting rights of all games or matches in that competition or league shall be owned only by the governing body or organiser. For example, the J League owns the broadcasting rights of all the official games under the regulations of the J League, and grants licences to other broadcasting companies to broadcast the official games.
Sponsorship rights generally encompass a wide variety of different rights depending on the content of sponsorship agreements.
Other important rights relating to merchandising, such as image rights of individuals and copyrights, are derived from Japanese case law and the relevant intellectual property laws.
ii Rights protection
In general, the Trademark Act,21 the Copyright Act,22 the Unfair Competition Prevention Act23 and other intellectual property laws set out regulations for the protection and enforcement of intellectual property rights, such as trademarks and copyrights, and image rights and publicity rights of individuals are recognised and protected by case law.
The following is the outline of protection and enforcement mechanism of the above-mentioned rights in Japan.
An owner of a trademark can apply to the Japan Patent Office to register its trademark (such as a logo, character image or other brand indicators) as well as the designated goods or services for which the trademark will be used so as to acquire ownership of the trademark.
A trademark right is an exclusive right given to a registered trademark used for goods or services and its effect extends not only to the same trademark but also to similar trademarks. If an identical or similar trademark as the registered trademark is used without permission in respect of goods and services identical or similar to the designated goods or services, a trademark owner can claim against the unauthorised user for, among other things, the suspension of use, disposal of goods and compensation for damage suffered.24
Copyright is the right to protect a ‘work’, meaning creatively produced expressions of thoughts or sentiments that fall within the literary, academic, artistic or musical domain. Copyright arises automatically upon the creation of a work and subsists for 70 years after the death of the author.25 In principle, the unauthorised use of a person’s copyright work (such as copying of work or manufacturing of counterfeit products) constitutes an infringement of copyright. An author of the copyright work can bring a claim against an infringement of copyright for, among others, the suspension of use and compensation for damages.26
Image rights and publicity rights
In Japan, an individual’s image is protected by image rights and publicity rights, both of which are recognised by case law.
According to the Supreme Court of Japan,27 an ‘image right’ is derived from a personal right and each individual has the right not to have his or her image used or published without his or her authorisation, and the ‘publicity right’, which is the right to exclusively utilise an image commercially based on the commercial value of the image itself, is also derived from a personal right.
According to the Supreme Court of Japan,28 where the unauthorised use of an image is carried out mainly for the purpose of exploiting the image to attract consumers, the use of the image constitutes an infringement of publicity rights, in which case a right holder can claim for the suspension of the use of the image and compensation for damage suffered.
iii Contractual provisions for exploitation of rights
The form of the contractual provisions will depend on the negotiating position of the parties. Many contracts will have provisions that are typically found in a commercial contract.
However, as some governing bodies or event organisers have stipulated rules on broadcasting, merchandising and ticketing rights, a future contractual party should review the regulations relating to the sporting event and confirm whether, and to what extent, the counterparty of the transaction has the authority to grant such rights.