Analysis on the Copyright Infringement Dispute Case of the TV Series "Modern Temptation"

"Key Points" Modification of the title of a work without the permission of the copyright owner infringes upon the copyright owner's right to modify the work. The distortion and tampering of the work resulting from this behavior infringes upon the integrity of the work. If the actual losses or the infringer's illegal gains cannot be determined, the People's Court shall determine a compensation of less than 500,000 yuan based on the circumstances of the infringement.

"Case Index"

First instance: (2005) Qingmin Sanchu Zi No. 975 (August 8, 2005), members of the collegial panel: Yan Chunguang, Qiu Song, Chen Mingming ;

Second instance: (2005) Lu Min San Zhong Zi No. 76 (April 18, 2006), members of the collegial panel: Dai Lei, Fu Zhiqiang, and Cong Wei.

「Case Facts」

In July 2001, the plaintiff Qingdao Aucma Film and Television Co., Ltd. and Qingdao TV Station signed a "Television Series Co-production Agreement", agreeing that the two parties would jointly shoot 20 episodes of the TV series "Modern Times" lure". Regarding the copyright of the TV series, both parties agreed: "The copyright of this TV series is jointly owned by Party A and Party B. Party A enjoys the right to premiere for free in Qingdao, and Party B enjoys the right to distribute the TV series."

In November 2001, the plaintiff issued a power of attorney, entrusting a Qingdao Film and Television City Co., Ltd. with full authority to act as its agent for the VCD, DVD, and LD production of "Modern Temptation" nationwide (excluding Internet broadcasts) rights) and the issuance of television broadcast rights in North China.

Later, a Qingdao Film and Television City Co., Ltd. authorized a Guangdong Cultural Communication Co., Ltd. to produce and distribute all audio-visual products and all laser discs of "Modern Temptation" within mainland China, including VCD, DVD, LD , excluding broadcast rights on the Internet

In December 2001, the plaintiff signed a contract with the Xuzhou branch of Beijing Longzhisheng Film and Television Advertising Art Company. The plaintiff transferred the broadcast rights of the TV series "Modern Temptation" to the company. The fee is 2.4 million yuan, and the tape fee, copying fee and mailing fee total 6,000 yuan. At the same time, a film and television city company in Qingdao also signed a contract with Beijing Zhongmei Culture Development Co., Ltd. to transfer the broadcast rights of the TV series "Modern Temptation". The transfer fee is 720,000 yuan, and the tape fee, copy fee, and postage fee total 7,000 yuan.

In March 2002, the plaintiff purchased VCD audio and video products labeled "Starscream III - Modern Temptation" in Qingdao, Beijing and other places. The words "Starscream III" are prominently displayed in large red fonts in the middle of the front cover of the audio-visual product. Below "Starscream III" is the word "Modern Temptation" in smaller white fonts. The VCD disc of the audio-visual product also has the same text. The audio-visual product is marked as published by a publishing house in Guangdong and issued by a cultural communication company in Guangdong.

In February 2002, a law firm in Zhejiang issued a lawyer's letter to the plaintiff, arguing that the intellectual property rights of "Red Spider" and "Starscream II" and "Starscream III" covered The right to use the title "Spider" belongs to Hangzhou Jinxiang Film and Television Production Co., Ltd.; the plaintiff violated relevant laws and regulations by publishing the TV series "Modern Temptation" as "Starscream III". Later, Hangzhou Jinxiang Film and Television Production Co., Ltd. filed an infringement lawsuit against the VCD disc of "Starscream III".

In January 2003, the Xuzhou branch of Beijing Longzhisheng Film and Television Advertising Art Company returned the copyright to the plaintiff in other regions except Jiangsu on the grounds that the copyright was unclear. Beijing Zhongmei Culture Development Co., Ltd. also sent a letter requesting the return of the copyright of the play for the same reason.

The plaintiff then filed a lawsuit with the court, naming a Qingdao Film and Television City Co., Ltd., a Guangdong Cultural Communication Co., Ltd., and a Guangzhou publishing house as co-defendants, requesting an order to order the three defendants to cease infringement and compensate them. The loss was 2.18 million yuan.

The release of the audio-visual product "Modern Temptation" without the permission of the copyright owner, and the act of changing the name of the work to "Starscream III - Modern Temptation" infringes upon the plaintiff's right to modify and protect the integrity of the work, and the plaintiff should agree to the same bear infringement liability. The defendant Qingdao Film and Television City Co., Ltd. did not give permission to a Guangdong Cultural Communication Co., Ltd. to change the name of the TV series, nor did it actually participate in the publication and distribution of audio and video products, so it does not bear infringement liability.

The court ordered the defendants, a cultural communication company in Guangdong and a publishing house in Guangzhou, to stop infringement and compensate the plaintiff for economic losses of 500,000 yuan.

The defendant was dissatisfied with the first-instance judgment and appealed. The second-instance judgment rejected the appeal and upheld the original judgment.

「Commentary and Analysis」

1. Identification of the copyright of the work at issue in this case

The basic fact of infringement in this case is that it was published by a Guangzhou publishing house and a Guangdong Cultural Communication Co., Ltd. The audio-visual products released by the company changed the name of the plaintiff's copyrighted work from "Modern Temptation" to "Starscream III - Modern Temptation", and prominently used "Starscream III" on the VCD cover. Can modifying the title of a work without the permission of the copyright owner constitute infringement? The author believes that there are two ways for the name of a work to be protected by copyright law. One is to obtain protection as an independent work. This protection is absolute and applicable in all circumstances, but the names of works that can obtain this kind of protection are very few. Fewer, because the title of the work is usually a combination of several words, and the personality it can express is extremely limited, making it difficult to meet the originality requirements; secondly, it is protected as an integral part of the entire work, and this protection is only applicable under certain circumstances. .

Whether the name of a work can be independently protected by copyright law has always been a very controversial issue. From a global perspective, there are three main attitudes towards the protection of the name of a work. One is the absolute protection represented by France. Protectionism believes that as long as it is original, it will be protected. Article L-112.4 of the French Intellectual Property Code stipulates that the title of an intellectual work, as long as it is original, is protected by copyright law in the same way as the work. The second is represented by the United States, which opposes the protection of copyright law for the title of a work, believing that "the simple title of a written work is not the object of copyright protection." The copyright holder of the movie "Star Wars" sued the Reagan administration's "Star Wars" plan for infringement. This is the case where the copyright in the title of his work was lost and he failed to win. The third is to incorporate it into other laws to provide protection. For example, in German case law, an article of the "Anti-Unfair Competition Law" is usually applied to deal with disputes about the name of a work. This article stipulates that "when printing a work, a businessman shall not use the same name as the name of another work." Marks that are confused with special marks."

At present, our country’s laws do not clearly stipulate the copyright issue of work titles, and only two replies from the Copyright Management Department of the National Copyright Administration have touched on it. In the "Reply on whether the title of the work is protected by copyright" on July 17, 1996, it was held that: "The title of the work should be protected by the Anti-Unfair Competition Law rather than by the Copyright Law. In this way, regardless of whether the title is original , as long as it is used by others for commercial purposes, it is possible to seek legal aid." The other one was the reply to the Kunming Intermediate People's Court that "the title of a literary work is not suitable for copyright protection" in Quan Si (2001) No. 65 on December 25, 2001. Therefore, in order to obtain independent protection for the title of a work, it can only rely on the judgment standard of “originality” stipulated in Article 2 of the Implementation Regulations of the Copyright Law. The title of the work at issue in this case is "Modern Temptation", which is a simple superposition of two public domain words "modern" and "temptation". The author believes that it does not have the originality required by the work and cannot constitute an independent work because the work requires " embody something new and certain in form, content, or a combination of form and content.” "Personal wisdom with unique talents and abilities must be reflected in creative activities and its brilliance must be displayed."

In this case, the TV series "Modern Temptation" is a work protected by the Copyright Law and created using a method similar to that of a film. Its title "Modern Temptation" is protected by the Copyright Law as an integral part of the work. . It should be noted that not all components of a work are protected by copyright law, and protected parts may not be protected under all circumstances. Due to the limitations of human expression, there are general expression factors in any work. Only original expressions in works are truly protected by copyright law. The name is the finishing touch to the work. The creation of the name requires the author to invest a lot of intellectual labor. Even if it does not independently form the name of the work, it is an indivisible component of the entire work. Destroying the name of the work will destroy the entire work. Integrity affects the original expression of the copyright owner's meaning. Therefore, regardless of whether the work title independently constitutes the work, it is protected by copyright law as an integral part of the entire work and is prohibited from being illegally modified by others. But this protection is limited and must be based on the entire work.

The protection of the work title "Modern Temptation" in this case is not because it has the originality of the work itself, but because its modification affects the integrity of the entire work and infringes upon the copyright holder of the entire work and the film and television works. inseparable connection. In other words, the infringement in this case is not the infringement of the title of the work, because it has no right to infringe, but the infringement of the right to modify the entire film and television work and the right to protect the integrity of the work. If this case is not an illegal modification of the title of the work, but the registration of "Modern Temptation" as a trademark, it cannot be considered a copyright infringement because the copyright owner does not have prior rights to the phrase "Modern Temptation." The hotly debated "Five Golden Flowers" case is a similar example. Yunnan Qujing Cigarette Factory registered "Five Golden Flowers" as a trademark. The author of the "Five Golden Flowers" script sued the court to stop the infringement, but the court ultimately rejected the case. Plaintiff's claim.

2. Identification of infringement of the right to modify and the right to protect the integrity of the work

According to the provisions of my country’s Copyright Law, the right to modify refers to the right to modify or authorize others to modify the work and protect the integrity of the work. Rights refer to the right to protect works from distortion and tampering. These two types of rights are the most closely integrated in copyright law and often appear together in judicial practice. Since the two types of rights are similar and the scope of protection is similar, many scholars have been trying to define the relationship between the right to modify and the right to protect the integrity of the work. Generally speaking, there are several views: One view is that the right to modify and the right to protect the integrity of the work The right of integrity is the positive and negative sides of the same right. On the positive side, the author has the right to modify or authorize others to modify his own work. On the other hand, the right to prohibit others from distorting or tampering with the work. This view is generally accepted. The second view is that the scope of the objects protected by the two is different. The right to modify protects the external expression of the work, while the right to protect the integrity of the work protects the internal expression of the work. Both rights have the nature of initiative and defense. . The third view is that protecting the integrity of a work is more important than maintaining the author's finalized expression. When the author has decided to express his thoughts or emotions in a certain way, others are not allowed to arbitrarily change the author's chosen expression. Modifying the weight maintains the continuity of the author's personality and expression. When the author's thoughts, emotions or opinions change, and the original expression conflicts with the author's personality, in order to eliminate the contradiction and continue to ensure the consistency of the work and the author's personality , the law allows the author to modify the work, and its effect is to exclude others from interfering with the author's freedom to modify the work, but not to prohibit others from illegally modifying the work.

The author believes that the right to modify is very similar to the right to protect the integrity of works, but they are not the pros and cons of the same right. Otherwise, the legislation would not set up two essentially the same types of rights. There are four main differences between the two: 1. Infringement of the right of modification is usually intentional, while infringement of the right to integrity of the work is not necessarily intentional. For example, in Shen Jiahe v. Beijing Publishing House, the publication contract and the infringement of the right of modification and In a dispute over the protection of the integrity of works, the novel "Girlfriend's Dream" written by the plaintiff and published by the defendant contained a total of 179 errors in Chinese language, punctuation, etc. The Beijing No. 1 Intermediate People's Court believed that the book had serious quality problems, which made the plaintiff The social evaluation of the work has been reduced and the plaintiff's right to protect the integrity of the work has been infringed. In this case, the infringement of the integrity of the work due to substandard editing quality was clearly unintentional. 2. The right to protect the integrity of a work is an extension of the right to modify. Under normal circumstances, infringement of the right to modify a work does not necessarily infringe the right to integrity of the work, but infringement of the right to integrity of the work will definitely lead to damage to the right to modify. For example, after the author submits the work to the publishing house, he requires modification before typesetting and printing. In the event of rejection, only the right to modification is infringed and not the right to protect the integrity of the work. In individual cases, infringement of the right to the integrity of the work does not affect the right to modification. For example, some scholars believe that using serious works in a vulgar environment or randomly adding advertisements during movie screenings may cause infringement of the right to the integrity of the work. infringement. 3. The infringement on the integrity of the work is usually more serious than the infringement on the right of modification, requiring the work to be distorted or tampered with, and sometimes even vilifying the author's personality, while the right to modification is only a general change to the work and does not involve the author's personality. . 4. The right to modify is mainly a "executive" right. From a positive perspective, the author can modify it himself or authorize others to modify it, while the right to protect the integrity of the work is a "forbidden" right. From a negative perspective, it can only be modified by the author. Only exercised when infringement occurs.

Returning to this case, the audio-visual product "Modern Temptation" published by a Guangzhou publishing house and distributed by a Guangdong Cultural Communication Co., Ltd. changed the title of the work to "Starscream III - Modern Temptation". With the consent of the copyright owner, and the name is similar to the "Starscream" TV series produced by others, which can cause the public to mistakenly think that the copyright owner of the TV series is the producer of "Starscream", and the producer of "Starscream" also An infringement lawsuit was filed against the plaintiff for this purpose. The defendant's behavior severed the natural connection between the work and the copyright owner's personality, changed the copyright owner's established expression method, destroyed the original integrity of the work, and constituted distortion and tampering of the work. The defendant's act of modifying the title of the work without the permission of the copyright owner infringed upon the plaintiff's right to modification, and the distortion and tampering of the work resulting from this act infringed upon the integrity of the work. As a German scholar said, "The law not only protects the interests of the author himself, but also lets the public know who has given the work originality. Therefore, the author should be able to fight against those who distort the work, otherwise those distortions will would cause cognitive harm to the public - as long as there is no greater interest justifying such modifications."

3. Calculation of compensation for infringement losses

According to Article 48 of my country’s Copyright Law, if a copyright or copyright-related rights are infringed, the infringer shall pay compensation according to the actual situation of the right holder. Compensation will be provided for the loss; if the actual loss is difficult to calculate, compensation may be provided based on the illegal income of the infringer. The amount of compensation should also include the reasonable expenses paid by the right owner to stop the infringement. If the actual losses or the illegal gains of the infringer cannot be determined, the People's Court shall, based on the circumstances of the infringement, award a compensation of not more than 500,000 yuan. Article 25 of the People's Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases" further explains the applicable conditions for statutory compensation: "When determining the amount of compensation, the People's Court shall consider the type of work, reasonable royalties, The nature, consequences and other circumstances of the infringement shall be comprehensively determined.” When determining the amount of loss compensation in this case, statutory compensation was adopted, and a limit of 500,000 yuan was applied. The author believes that the basis is mainly based on the following two points:

First, the plaintiff’s economic losses and the defendant’s illegal gains cannot be calculated. In this case, the plaintiff claimed economic losses of 2.18 million yuan, based on the fact that the two TV drama broadcast contracts were not fully performed due to the defendant's behavior. The court held that, first, the plaintiff did not provide evidence to prove that it had reached an agreement with Beijing Zhongmei Culture Communication Development Co., Ltd. on the termination of the contract and the payment and return of related expenses, and the loss was not yet clear; second, although the plaintiff did not obtain the transfer of broadcasting rights as stipulated in the contract However, there was no actual transfer of the broadcasting rights in the relevant area. The plaintiff could still license others to exercise their property rights to realize their property rights. Therefore, the plaintiff's claim lacked factual basis and was not supported by the court.

Secondly, the reason why statutory compensation was applied in this case was mainly due to the plaintiff’s actual losses. The principle of comprehensive compensation is the most basic principle of compensation in modern civil law. It refers to the extent of the liability of the infringer of a tort, and all compensation should be based on the actual property losses caused by the act. Statutory compensation is a method of compensation set in law due to the inability to achieve full compensation. Therefore, the author believes that it should take actual losses as the basic consideration and be as close to full compensation as possible. In the 1984 ROS Records case in the United States, the court pointed out that "there is no doubt that the valuation of statutory compensation should have some connection with the actual loss. However, since statutory compensation is usually used when the actual loss cannot be accurately calculated, it cannot be expected to The two are accurate and consistent.” It can be seen that although statutory compensation is applicable when the loss cannot be calculated, the US court still determines the amount of statutory compensation based on the actual loss that may be suffered. President Jiang Zhipei of the Third Civil Division of the Court also pointed out that “the actual loss caused by the infringement should be the center of the calculation of damages. No method can exist independently of the actual loss or the fact of damage.” In judicial practice, the possibility of causing losses is usually considered as a factor in statutory compensation. For example, the Beijing High Court stipulated in the "Guiding Opinions on Determining Liability for Damages in Copyright Infringement" that "statutory compensation should be determined based on the following factors: (1) ) Normally, the plaintiff’s possible losses or the defendant’s possible gains; (2)…”.

In this case, the court held that the defendant's behavior indeed caused the plaintiff to be unable to fully perform the contract that it had signed. If the plaintiff granted permission again, it would not only have to clarify the ownership of the copyright of "Modern Temptation" but also incur related expenses for re-signing and performing the contract. Moreover, as a TV series that reflects real life, "Modern Temptation" has a strong timeliness. If it cannot be broadcast in time, its commercial value will tend to decrease as time goes by. Although the actual economic losses of the plaintiff are difficult to calculate, the defendant's infringement will definitely cause economic losses to the plaintiff. Taking into account factors such as the plaintiff's investment in creation costs, the type of work, the nature of the infringement, the consequences, and the plaintiff's reasonable expenses for the litigation, the court finally determined that the defendant should compensate the plaintiff for economic losses of 500,000 yuan.

——This article was published in the 2007 Issue 3 of "Qingdao Judicial Forum" (an internal journal of Qingdao Intermediate People's Court), and was adopted by the 2007 Issue 14 (Case Edition) of "People's Justice".