In recent years, a relatively new form of entertainment performance has become popular in my country's entertainment industry - "imitation show" activities. Many performers whose bodies, looks and even looks resemble those of famous stars appear on stage and screen. Regardless of their appearance or gestures, they imitate the performing arts stars so vividly that sometimes they can even look real. Their performances dazzled people and felt very novel, so they attracted many audiences and had high ratings and attendance. A large-scale "gathering of superstars" super "imitation show" concert was held in Sichuan, which was a great box office success. Some viewers said that they were not interested in real big-name celebrities and bought tickets out of curiosity to see how these imitators dress up like big-name celebrities. Because the "imitation show" activity captured people's star-chasing and curiosity-seeking mentality and attracted the public's attention, it became popular all of a sudden and spread throughout the country. At the same time, some people in society have strongly opposed this form of performance, believing that performance is a kind of creation, and this kind of creation must be protected by law. They emphasized that the original performers spent a lot of time and energy in designing and planning the performance format, and the entertainment business operators or performers themselves often invested a lot of money in packaging and publicity of the performers' appearance and style, which should be Protected by copyright. Imitation of performances without authorization is an infringement of the copyright of the original performer and should be prevented. So, is this kind of "imitation show" activity an infringement? Should there be certain restrictions on it?

We know that the most important prerequisite for the law to grant protection in the sense of copyright is that the author has created a work that is original. Therefore, to discuss the legal nature of "performance", we must first clarify whether the performance activity is a kind of creation and whether the performer's performance is a work created by the performer.

The author's creation is a kind of original labor. The works created through this kind of labor express his own understanding and perception of the objective world, or express an idea. On the surface, the performer's performance behavior is similar to the author's creative behavior. Although the performer's performance is a communication type of labor, the performer uses his or her own intelligence in the performance and also incorporates his or her personal understanding of the work and perception of life. Performance behavior is not only the performer's interpretation and dissemination of the original work through skills and techniques, but also reflects the performer's personality and artistic style. It seems to be considered a interpretation of the original work. In fact, performance activities are not the same as the author's creative activities. We admit that performers are engaged in an artistic activity, but artistic activities do not only refer to creative activities. In addition to the creation of literary and artistic works, it also includes the dissemination of works-performances. In fact, the artist's performance is a kind of expression, that is, a rich expression of the author's completed work. The performer is a medium between the author and the public. He is responsible for conveying the author's work to the public. To be more precise, he conveys an idea that the author has fully and concretely expressed in the work, but does not convey the content of the work. Add anything new. Although some works can only express their meaning through performance, and can only be appreciated by the public through performance, some performances of works may even have high artistic value, which is already higher than the art of the performed work. Value (This situation is not impossible. For example, when a highly skilled pianist plays an ordinary piece of music, even if the music itself is not outstanding, it does not prevent the performer from achieving an amazing performance when playing the work. level). But the work itself is a whole, but the performance is not, and performance is not destined to be the only way for the work to come into contact with the public. Although the law protects performers' performances, this does not mean that the performance is original, nor does it mean that the performer's performance activities are a kind of creation. We can infer that if we admit that the performer's performance is an interpretation of the original work and admit the originality of the performance, it is equivalent to admitting the performer's new creation, but the form in which this new creation is expressed is still the same original work. work. This is contradictory to the basic principles of copyright. How can there be two or more exclusive rights in the same work that are both based on creative activities and require legal protection? In other words, there are obvious loopholes in the legal structure when considering performance acts as creative acts and equating the rights of performers with the nature of copyright.

Compare the work with the performance. The work can be performed again and again, but the performance itself cannot be performed again. For the same work, different performers perform different performances. For the same performer performing the same work, one performance is different from another performance. We often say: "With a thousand actors, there are a thousand Hamlets." It can be seen that for a work that is always objective, there can be thousands of performance methods. The work itself remains unchanged, while different performances are various repetitions of the work. Logically speaking, if we admit that a new work is produced based on the performance of the original work, we also have to admit that the interpretation of the original work - such as a translation - is a new work based on copyright law theory. works, then the performance of the interpretation work (translated work) should undoubtedly be a different work created from the performance of the original work. This is obviously a contradiction. The reason is that the performance itself does not produce new works. It can be clearly said that no matter how outstanding the artistic level and precious value of the performance, it does not mean that it is creative. No matter how wonderful the performance is, it does not create a new work, which is not a copyright in the sense of creation. So we conclude - performance is not a creation. We know that the main basis for copyright protection is the originality of the work, which is the fact that the work is based on the author's creation. In contrast, protecting performers' rights does not require originality in the performance. It is for this reason that the rights of performers are not protected within the scope of copyright, but are protected within the scope of copyright neighboring rights. There is no prohibition on imitation of performances in statutory rights. In other words, the performer's personality characteristics are reflected in his or her special style, but "style" or "ideas" are not protected in the copyright system. People are completely free to write in a certain way, draw in a certain style, and design buildings in a certain mode. As long as they do not plagiarize an existing work completely and in its entirety, and label themselves as authors, there is no need for special approval. of permission. In the same way, people can also imitate a certain performance technique and style, provided that the rights of the original performer who is imitated are not damaged - even if the imitation is expressed through details (for example, the imitator closely resembles the original performer's attire) wait). The laws of various countries do not provide any measures prohibiting imitation behavior, nor do they limit their rights. For example, "imitation shows" performed by famous entertainers such as Chaplin, Marilyn Monroe, and Elvis Presley have existed all year round in Western countries. Therefore, a simple imitation show does not violate the provisions of the law, let alone infringe on the rights of the performers.

Of course, freedom is relative, and any behavior must be within the scope permitted by the law in order to be protected by the law. The "imitation show" activity is no exception and is subject to certain legal restrictions.

First, imitation activities must not infringe the copyright of the work performed by the original performer. Regardless of the form of the original performance, the imitator has the obligation to legally use the work and obtain the right to perform the work at any time. In particular, under certain circumstances, the original performer and the copyright owner of the work may become one. For example, if you write, perform, improvise, etc., if the original performer (more appropriately called the author in this legal relationship) refuses to authorize a third party to perform the work, then the imitation behavior will lose its legal basis. , infringing upon the rights of the original performer (author).

Second, imitative activities must not derogate or distort the image of the person being imitated. For example, the imitator maliciously imitates the original performer, highlights or exaggerates the flaws of the person being imitated, etc., and seeks to please the public. Otherwise, it can be considered as a violation of the performer's right to protect the performance image from distortion. Since malicious imitation is likely to adversely affect the artistic reputation of the person being imitated, the original performer can claim his or her own rights. Article 37 of my country's Copyright Law stipulates that performers have the right to protect their "performance image from distortion."

Third, activities that imitate other people’s performances must not excessively highlight and publicize the name of the person being imitated in the performance, conceal or reduce one’s own name, causing great misunderstanding to the public, thereby attracting audiences. This kind of unfaithful behavior has actually broken away from the category of "imitation", but is a kind of "counterfeiting", which seriously violates the rights of the original performer, and is also an infringement of the original performer's reputation and prestige.

Because the performer’s true identity is of great significance to performance activities, Article 37 of my country’s Copyright Law stipulates that performers have the “right to identify themselves.” This right certainly includes the performer’s right to prohibit others from impersonating his or her name. . There was such a case in our country. Female singer Liu Chang pretended to be Tian Zhen at a concert held in Shanxi Province based on her similar appearance and voice to the famous singer Tian Zhen, and achieved considerable economic benefits. This is undoubtedly a serious infringement.

Fourthly, since "imitation show" performances often appear in commercial activities, in order to improve economic benefits, the organizers or operators of the performances will inevitably conduct a large amount of media publicity and public opinion hype for the event. In the process of publicity and hype, in addition to avoiding infringement of the rights of the original performers mentioned in Articles 2 and 3 above, attention must also be paid to the moderation of language expression and publicity methods. Because in the legal system of neighboring rights that protects performers' rights, the original performers enjoy economic rights to their performances in accordance with legal provisions. my country's Copyright Law stipulates that performers enjoy recording rights, reproduction rights, dissemination rights, distribution rights, remuneration claim rights and other economic rights. It is conceivable that if the imitation show is too grand, the original performers may be impacted to some extent in the process of realizing their economic rights. Although the fact that the original performer's economic rights are harmed is only a possibility, it does not necessarily not happen.