W. David Marx shares lessons from the front lines of licensing 100 images from various Japanese individuals and institutions for his upcoming book on Japanese fashion.
Disclaimer: Very sadly, we are not lawyers, so always consult with your publisher’s legal team or other counsel when making final decisions on image usage. The following article is merely intended to provide general thoughts and guidelines.
Writing about fashion requires visuals, so for my book Ametora: How Japan Saved American Fashion (Basic Books, Fall 2015!), my publisher and I planned on having around 60 images. I ended up finding more than 100 suitable ones, and we ended up using more than 80.
While the publisher helped foot the bill for the image rights, I was responsible for arranging the licensing. In other words, I had to go out and do the legwork to secure the rights for every single one. This took about five months of emails, phone calls, and faxes, but to my surprise, most everyone was happy to grant me rights. In fact, the only explicit “no” came from a famed Japanese electronics company who hilariously did not want me using a 40 year-old advertisement for a boombox because they could not clear the “portraiture rights” of the models whose faces you could not even see anyway.
Seeing that Néojaponisme readers are the type of people likely to write books that require licensing images in Japan, I thought I would pass on everything I learned in the last six months.
Prerequisites for Image Licensing in Japan
First, you need proof that you’re working on a legitimate production — i.e., the name of a publisher, date of publication, title of work, etc.
Second, make yourself a basic template in Japanese that explains what you are working on, so that you can just cut and paste your requests. Even if you do not need it for the initial email, they will ask for it, so just have it ready to go. My form had: book title, paragraph about book’s theme (with heavy name dropping on whom I interviewed), book format, number of Images, publication date, blurb about the publisher, and blurb about me.
Third, you need to prepare yourself (or a trusted associate) to do a lot of phone calls in Japanese — including cold calls to random individuals.
1. Photo Agencies
The easiest place to license photographs in Japan is the newspapers and wire services (prices below are for black-and-white photos, color are often more than ¥20,000.)
Yomiuri is the most expensive, but oddly, seems to have the fewest number of photos. Asahi and Mainichi are particularly easy to sign up for.
There are also a few high-end photo agencies you can use. Aflo has a lot of great images that you will not see elsewhere, as they also manage individual collections of a lot of famous photographers.
Getty is not Japan-focused, but can be useful for finding photos of Japanese celebrities when abroad.
There is an application process for licensing photos on these sites, but it is nearly automatic for any legitimate publication. Once they approved, they just send the image download links over email. Based on price and ease, any image search should start with these agencies.
2. Individual Photographers
For all other images, you will need to reach out to the photographer who took the photos. This includes photos inside magazines — the photographer, rather than the publisher, owns the copyright. The photographer maintains copyright for 50 years after death, so even if they are deceased, you will need to reach out to the family to get rights.
Fees on old photos are highly variable. Sometimes I was not charged for using the old photos, one time I paid ¥30,000, the most of any photo I licensed.
Finding widows and children seems difficult except that there is an organization called the Japan Professional Photographers Society who are happy to pass on contact information for a photographer or next-of-kin. Yes, it will be an awkward call when you ask the son of a deceased photographer to ask to find negatives from fifty years ago, but there really is no other way to do it. Expect to do some faxing too. Also note that some famous photographers are not part of the Society.
For personal or family photographs, most people do not charge but you do need to secure permissions.
Illustrations work the same way as photographs — illustrators retain rights to their images used in magazines. There is an illustrators’ society called the Japan Illustrators’ Association, but I did not use them. To find one illustrator, I had to contact a tailor he did work for many years ago, beg for a phone number, and then have the conversation with the illustrator’s wife that started as, “So in 1989 your husband did a piece in Hot Dog Press…”
Also, there are no standard prices for illustrations, so you have to negotiate. For most of the ones in my book, the illustration itself was an important historical marker of style (rather than eye candy), so the illustrators gave me lower prices.
4. Magazine Covers
Most publishers will let you use these for free but you need permission. One publisher I dealt with normally charges for use of covers in Japanese media but gave me a pass because I was referencing it in a semi-academic work.
5. Magazine pages
Reprinting magazine pages is a gray area that depends on the publisher. Copyright on magazine pages is not cut-and-dry, and as far as I could deduce, publishers are very unlikely to actually own copyright on all the content in the pages. Each person responsible — the writer, the illustrator, the photographer, the advertiser — owns their own copyrights for the material.
So it comes down to case-by-case usage: One publisher told me that I could basically use anything as long as I referenced it as a “visual quotation” (i.e. fair use). Another publisher told me that the magazine I was referencing no longer existed and they did not care how I used anything (and then hung up on me.)
One major publisher said the only thing off-limits was when pages use non-Japanese models, as they sometimes have deals that their images are not used outside of Japan.
Japan is often said to be a “low risk” society, and this mindset sometimes becomes a barrier to licensing images. Many rights holders or parties involved may simply reject a licensing request because there is some risk — albeit extremely low — of a future lawsuit. Here are a few additional things that you will have to think about but will come down to managing risk.
The primary uncertainty when licensing photos in Japan is so-called “portraiture rights” (肖像権, shōzōken). From my limited legal understanding, this is not a right explicitly guaranteed by Japanese law, but people over the years have been able to sue under basic constitutional personal rights protections when they can prove damage from someone publishing an image of them without consent.
Celebrities are the most likely to sue over portraiture rights because they can claim that the publication is using their likeness to promote the book or otherwise damage their reputation. Normal people, however, can and have sued before. The most obvious case would be a photographer taking an unauthorized street snap of a young man in a terrible outfit which goes online to have commenters savage his outfit and identify his name. But what about someone whose photo was taken fifty years ago for a fashion magazine and listed as a particularly stylish person?
Knowing that there is always some risk of a lawsuit, rights agencies license you a photo and then tell you that it is your responsibility to “clear” the portraiture rights for anyone in the photo. But just imagine for a second what this task entails when the photo is twelve young men from 1964 in a shot of Ginza.
It bears repeating that I am not a lawyer, but there are some commonsense ways to lower potential risk: (1) not use images of people in a way that denigrates them or could seem damaging (2) do not use images of celebrities on the cover without permission (3) make sure the text references the images so that you can show there was a “fair use” context for using the image. Fair use does not exist in Japanese law, but it will still help your case if you are able to show that the image was critical for illustrating the narrative rather than just “eye candy.”
There are different laws on portraiture rights depending on which country you publish, so always consult with your publisher’s legal team before making any decision.
Also note that in one case I did not need to pay a licensing fee to a photographer for the use of a photo, but I did have to pay a small fee for “portraiture rights” to the estate of the person in the photo.
If you are writing a history and want to show images illustrating historical moments, you will definitely uncover many great images that are essentially “orphan” works. The photographer or illustrator may be unlisted or unreachable; it may be an advertisement from a company that no longer exists.
Using these images opens you up to some level of legal risk, so you have to make a decision weighing the risk involved.
The Japanese government recently has changed the law to ease the licensing burden when all copyright owners cannot be located, but this only extends to certain trusted organizations, which we are guessing, you are not part of. This seems to signal, however, a liberalization of copyright towards orphan works.
Any photo or illustration where the creator passed away more than fifty years ago (that’s now 1965!) is now in the public domain. Have fun.