Chen Zhe (under the pen name “Chiung Yao”) V. Yu Zheng (pen name: Yu Zheng) ET AL. (2015) GM (Z) ZZ No. 1039, Beijing Higher People’s Court
Cause of action: Copyright infringement dispute
Collegial panel members: Xie Zhenke | Yuan Xiangjun | Zhong Ming | Qi Lei (judge assistant)
Keywords: access, expression, ideas, substantial similarity
Relevant legal provisions: Copyright Law of the People’s Republic of China, articles 10(1)(xiv), 12 and 47(6)
Basic facts: Chen Zhe (under the pen name “Chiung Yao”) is a famous scriptwriter from Taiwan Province of China. Yu Zheng is a famous scriptwriter from the mainland of China. The script “Meihualao”, attributed to Chiung Yao, was completed in October 1992 and not published in paper form. The novel Meihualao, adapted from the script of “Meihualao”, was completed on June 30, 1993, and publicly distributed in Taiwan Province of China from September 15, 1993. It was published on the Chinese mainland in the same year. Chiung Yao was named as the author of the novel Meihualao.
The television series Meihualao premiered in Taiwan Province of China on October 13, 1993, and on the Chinese mainland on April 13, 1994. The series Meihualao is highly similar to the script of “Meihualao”, but the opening credits name the scriptwriter as Lin Jiuyu, who issued a notarized statement on June 20, 2014, that she was responsible only for taking dictation of Chiung Yao’s creation, and for consolidating and editing the script. Lin Jiuyu affirmed that the script from “Meihualao” was independently created by Chiung Yao.
Yu Zheng was recorded as the author of a script “Palace 3: The Lost Daughter” – that is, Yu Zheng was named as the scriptwriter of the television series Palace 3: The Lost Daughter. The script was completed on July 17, 2012, and first published on April 8, 2014. The series was shot in accordance with the script, and its plot and content were basically the same as the script of “Palace 3: The Lost Daughter”. The series premiered on Hunan TV on April 8, 2014. The closing credits of Palace 3: The Lost Daughter named the production companies involved as Hunan eTV Culture Media Co., Ltd. (hereinafter “Hunan”), Dongyang Huanyu Film and Television Culture Co., Ltd. (hereinafter “Huanyu”), Wanda Media Co., Ltd. (hereinafter “Wanda”), and Dongyang Xingrui Film and Television Culture Media Co., Ltd. (hereinafter “Xingrui”).
The script of “Palace 3: The Lost Daughter” and the television series Palace 3: The Lost Daughter corresponded to Chiung Yao’s work, “Meihualao”, in terms of the setting, the characters and their relationships, and its plots. The script of “Palace 3: The Lost Daughter” was basically the same as Chiung Yao’s work in various aspects of overall plot arrangement and plot progression. Chen Zhe filed a lawsuit with the No. 3 Intermediate People’s Court of Beijing Municipality, alleging that the script of “Palace 3: The Lost Daughter” infringed on her right of adaptation for the script and novel of Meihualao, and that the shooting of the series Palace 3: The Lost Daughter infringed on her cinematographic rights, and asked the court to order the termination of the infringement, a public apology and damages for loss.
Held: The No. 3 Intermediate People’s Court of Beijing Municipality delivered its judgment ((2014) SZMCZ No. 07916) on December 25, 2014, ruling as follows.
(a) Hunan, Huanyu, Wanda and Xingrui were to immediately cease the reproduction, distribution and dissemination of the television series Palace 3: The Lost Daughter from the effective date of the judgment.
(b) Yu Zheng was to publish statements conspicuously on outlets Sina.com, Sohu.com, LETV and ifeng.com apologizing to Chen Zhe (Chiung Yao) and aiming to mitigate the negative impact of the infringement. (Yu Zheng was to submit the statement proposed to the court for review within five days of the effective date of the judgment and, in the event of Yu Zheng’s failure to do so, the court would publish the gist of the judgment in the Legal Daily, for which Yu Zheng would bear the necessary costs.)
(c) Yu Zheng, Hunan, Huanyu, Wanda and Xingrui were ordered to pay, jointly and severally, RMB5 million to compensate Chen Zhe for her economic losses and reasonable litigation costs within 10 days of the effective date of the judgment.
(d) Chen Zhe’s other claims were rejected.
Yu Zheng and the other respondents refused to accept the judgment and appealed to the Beijing Higher People’s Court, which dismissed the appeal and affirmed the decision at first instance.
Reasoning: The Beijing Higher People’s Court held as follows.
I. Expressions in literary works protected under the Copyright Law
The idea–expression dichotomy is the basic principle that distinguishes between the protected and unprotected elements in literary works. Its essence is that the Copyright Law of the People’s Republic of China protects the expression of an idea, rather than the idea as such. If it is alleged that an infringing work is substantially similar to the work of the right holder, it should be because the expressions within the two are substantially similar. Expressions protectable under the Copyright Law include not only the finalized form of the text, colors, lines and other symbols within the work, but also the material with which the author manifests their ideas and emotions. However, creative ideas, source material or information that is in the public domain, as well as some forms of creativity, necessary scenes or expressions that are unique or limited, are excluded from the scope of protection under the Copyright Law. Both scripts and novels are literary works, in which the boundary between ideas and expressions is difficult to delineate. “Expression”, in literary works, is not limited to dialogue, rhetoric, wording and phrasing, nor can the theme, subject matter and ordinary relationships among characters be identified as expression protected under the Copyright Law. Expressions in a literary work are not only manifested by literal expressions, but also emerge in the story told through those literal expressions. However, the setting of and relations among characters, and the plots, which consist of the occurrence, development and sequence of specific events, cannot constitute expressions protected by the Copyright Law until they reach such a level of distinctiveness that the author’s unique choices, judgments and tradeoffs are reflected in the selection of scenes, their structural arrangement and the design of plot progression in a literary work.
In literary works, the coherent arrangement and logical sequence of well-knit plots from beginning to end is what turns the plots in aggregate into a complete and individualized expression. The organic combination of such sufficiently specific character setting, plot structure and inherently logical relationships may constitute expressions protected by the Copyright Law.
II. Ways of judging infringement of the right of adaption
According to the provisions of article 10(1)(xiv) of the Copyright Law of the People’s Republic of China, the “right of adaption” is the right to change the work and create a new work based on it that displays originality. Subject to these provisions, the types of activity under direct control of the holder of the right to adapt are those integral to adaptation – that is, the acts of changing the original work and creating a new work. The new work must retain the same basic expressions that were found in the original literary work; if a new work is only loosely based on the ideas found in the original literary work, the right to adapt is not infringed. Unless otherwise specified by the law, unauthorized adaptation of someone else’s original works constitutes an infringement upon the original copyright holder’s right of adaptation. If the acts complained of are to be found to infringe that right, the two requirements of access and substantial similarity must usually both be met.
“Access” means that the accused must have had the opportunity to access, know about or perceive the copyrighted works of the right holder. When disclosed through such means as publication, exhibition, broadcasting, performance and screening, the works of the right holder may be deemed to be published and made accessible to the public. Under normal circumstances, the alleged infringer will have had the opportunity to acquaint themselves with the works of the right holder. In this way, access can be presumed. In this case, the broadcast of the television series Meihualao may be deemed to be publication of the script “Meihualao”. It may therefore be presumed that Yu Zheng, Hunan, Huanyu Film, Wanda and Xingrui accessed the script of “Meihualao”.
The Copyright Law protects expressions of ideas, instead of ideas as such. If the allegedly infringing work is to be found to be “substantially similar” to the work of the right holder, it should be because the expressions within the two are substantially similar. Expressions protectable under the Copyright Law include not only the finalized form of the text, colors, lines and other symbols within the work, but also the material with which the author manifests their ideas and emotions. However, creative ideas, source material or information that is in the public domain, as well as some forms of creativity, necessary scenes or expressions that are unique or limited are excluded from the scope of protection under the Copyright Law. To judge whether or not substantial similarity is justified, one shall first judge whether or not the elements claimed by the copyright holder belong to expressions protected under the Copyright Law.
Both scripts and novels are literary works, in which the boundary between ideas and expressions is difficult to delineate. Expression, in literary works, is not limited to dialogue, rhetoric, wording and phrasing, nor can the theme, subject matter and ordinary relationships among characters be identified as expression protected under the Copyright Law. Expressions in a literary work are not only manifested by literal expressions, but also emerge in the story told through those literal expressions. However, the setting of and relations among characters, and the plots, which consist of the occurrence, development and sequence of specific events, cannot constitute expressions protected by the Copyright Law until they reach such a level of distinctiveness that the author’s unique choices, judgments and tradeoffs are reflected in the selection of scenes, their structural arrangement and the design of plot progression in a literary work.
Assessing substantive similarity is a process of abstracting and filtering to determine what are the protected expressions of a literary work. When it comes to character relationships and the settings, comparison shall be made of expressions formed by the combination and interaction of characters and plots. If both the sequence of events and interaction of characters originate in the prior copyrighted work, then substantial similarity shall be established. In literary works, plots are closely connected by means of successive scenes and logical sequence to form complete and individualized expressions. Such organic integration of sufficiently specific character settings, plot structure and inherent logical relations can become expressions protected by the Copyright Law. If the allegedly infringing work includes expressions that are sufficiently specific, and if well-knit and logical plot arrangements comprise a notable portion of the allegedly infringing work, substantial similarity shall be established on this basis. If such well-knit and logical plot arrangements within the text of the allegedly infringing work account for a sufficient portion in the copyrighted work, substantial similarity shall be established even if such duplication appears in only a small portion in the allegedly infringing work, but to such an extent that the relevant public feels as though they originated from the other work.
In addition, it needs to be clarified that even though some specific plots in a work may belong to the public domain or may constitute necessarily limited or unique forms of expression, it does not mean that the organic combination of such plots and other plots cannot be original or constitute expressions protected by the Copyright Law. Overall substantial similarity cannot be ruled out by partial dissimilarity of plot.
In this case, 9 of the 21 plot points claimed by Chiung Yao were expressions protected by the Copyright Law. The script of “Palace 3: The Lost Daughter” was found to be substantially similar to the copyrighted script in those 9 instances; the script of “Palace 3: The Lost Daughter” was also substantially similar in terms of the Chiung Yao’s claimed setting and character relationships. On the whole, the court found the script of “Palace 3: The Lost Daughter” to be substantially similar to the protected work.