The story of a former judge of the Patent Division of the Tokyo High Court (Eiji TOMIOKA)
Recently, lawyer and poet Minoru Nakamura has been publishing a series of essays about the deceased old acquaintance under the title "The Late Old Sorrow" in the monthly poetry magazine "Yuriika," which seems to be picked up by few people. The November 2022 issue is a retrospective of Mr. H, who was in charge of the first appellate court ruling in the famous so-called photomontage case between Yoshito Shirakawa and Mad Amano as the lead judge, and also mentions the ruling. Even though it is a public publication, I think that there are few people involved in intellectual property who see it, so I will introduce it here.
Mr. H was a classmate of Mr. Minoru Nakamura in the literature department of the old system of Ichigaku (it is surprising that there were only 60 students at that time. It was. Mr. Nakamura became aware of Mr. H.'s existence because Mr. Nakamura, who had already begun writing poetry, was "deeply moved by his fresh lyricism and elegant love" after seven tanka poems written by Mr. H. were published in the Koryo Jipo, the dormitory newspaper of Ichitaka at the time.
When Mr. Nakamura visited Yukio Mishima's house in Shoto, Shibuya Ward, after the end of the war, Yukio Mishima told him about a classmate of Mr. Nakamura's, who was presumed to be Mr. H. It seems that he had become acquainted with Mishima through a mutual acquaintance of the Japan Namiman. Therefore, it can be said that Mr. H. had a certain literary background.
After graduating from high school, Mr. H went on to the University of Tokyo's Faculty of Law, passed the bar exam, and became a judge. After that, he was assigned to the Patent Division (now the Intellectual Property Division) of the Tokyo High Court, where he was in charge of the above photomontage case appeal court (1st stage) as a chief judge as a jury, and on May 19, 1976, Mad Amano placed an image of a huge tire on a mountain with a spool, using a photo of a ski spool drawn on a snowy mountain by photographer Yoshinori Shirakawa. It is said that he was involved in the
judgment that canceled the Tokyo Jisai judgment, which ordered damages and an apology for the act of creating a photomontage photo that looked like tire marks and posting it in a photo book, and that Mad Amano won the case (dismissing Shirakawa's claim). ）。
Later, when Mr. Nakamura met Mr. H for the first time in a long time, Mr. H said, "He asked me (author's note: Mr. Nakamura) what he thought of the High Court decision in the photo montage case. I remember that (Mr. Nakamura) said something to the effect that he could not keep up with the idea of parodying Shirakawa's photographs, but (Mr. H) replied with a surprised expression that it could be regarded as a criticism of modern civilization in the sense that modern civilization, symbolized by tires, is destroying the beautiful nature of Tyrol expressed in Shirakawa's photographs. He recalls. As you know, the Supreme Court subsequently revoked the High Court decision.
Knowing that Mr. H., who was the presiding judge in the case, had the literary background described above, it is also possible to note that for some reason, in the reasons for the judgment of the same judgment, the Edo period rhapsody "If you look at the hotogisunaki vine, you will only be able to remain in the moon of Ariake" by Ogura Hyakunin Ichishu, is suddenly cited as an example of parody. Based on the theory of "fair use," which was still rare at the time, he made a bold theoretical development that parody would not infringe on the right to maintain identity, and moreover, when I read this judgment, I felt that it was written in a light-hearted tone (I don't think the presiding judge rewrote it in such a style). I feel like I can understand it.
According to Mr. Nakamura, the example of this rhapsody is clumsy, and if it were to be quoted as a parody, it should have been the rhapsody of the Shuzan people, "Ariake Kaho of Gotokudaiji Temple." Gotokudaiji refers to the author of the original song of Ogura Hyakunin Ichishu, Gotokudaiji Zuo Minister Jisada, so there is clearly a ridicule of the author of the original song, and it is said that it is a typical parody. Listening to this alone, it deepens the feeling that the discussion of parody is not an easy problem, as different people have different sensibilities.
It is written that Mr. H was subsequently transferred to the Urawa District Court, retired before the mandatory retirement age, became a lawyer, but did not do well, and his wife (who took his teacher's wife when he was young and married him) became demented, and his registration as a lawyer was canceled in order to care for his wife, and he himself suffered from severe back pain and eventually committed
suicide. Reading this, it is easy to infer that Mr. H's life was not an easy one, and I feel sympathy.
By the way, when I read the above judgment, as I mentioned earlier, it is interesting with a bold brushstroke, but in hindsight it was too sketchy and could not have been avoided by the Supreme Court. On the other hand, I feel relieved that the Tokyo High Court made such a ruling, which could be said to be novel at the time, and that the ruling is still in the eyes of many scholars and practitioners today, partly because of the circumstances that followed. Is it because I think it would be nice to have such a judge for judges, especially those in charge of intellectual property? However, I also think that if I were to represent a judge like this in my case, it would be a big deal.
〈 Eiji Tomioka (RC)〉
