The successful hosting of the 2008 Beijing Olympic Games has left many precious legacies for people, and the National Stadium, vividly known as the Bird's Nest, is one of them. The Bird's Nest with its unique architectural style is not only groundbreaking in the history of world architecture, but also an artwork carrying Olympic culture. However, some companies in society use the Bird's Nest image to play a "sideline" role in the Olympic Games, which has caused the industry to think deeply about the protection and reasonable use of the Bird's Nest image.
In 2008, the successful hosting of the two major Olympic events made Beijing and even China the focus of the world. As the curtain of the Olympic Games slowly came down, people began to take stock of everything that the Beijing Olympics brought. Among them, the National Stadium is the Bird's Nest. As the landmark building of "New Beijing" and the most famous modern building in my country today, it is undoubtedly an extremely precious Olympic heritage.
Unique architectural style
As an architectural work, the Bird's Nest has a unique architectural style. The "Introduction to the National Stadium" on the official website of the Beijing Olympic Organizing Committee points out: "The (Bird's Nest) radiating portal steel truss is designed around the bowl-shaped seating area. The spatial structure is scientific and simple, the architecture and structure are complete and unified, the design is novel, and the structure is unique. It is recognized as a unique building at home and abroad."
The construction of the Bird's Nest embodies the three concepts of "Green Olympics, Science and Technology Olympics, and Humanistic Olympics". It is not only a unique landmark building for the Beijing Olympics, but also a landmark building in the Olympic Games. It is also of pioneering significance in the history of world architecture development. The Bird's Nest is not only an architectural work of high artistic value, but it also undertakes major tasks such as the opening and closing ceremonies of the Beijing Olympics, track and field competitions, and the men's football finals.
It can be seen that the Bird's Nest is the iconic building at the core of the Beijing Olympic Games. The unique intertwined image of the Bird's Nest abstracted from the radiating portal steel truss surrounding the structure has become one of the symbols of the Beijing Olympic Games and " The spiritual symbol of "New Beijing and New Olympics" has immeasurable commercial and social value. Although the "Bird's Nest Lines Intertwined Image" does not belong to the Olympic symbols listed in the "Olympic Symbols Protection Regulations", in fact, it has been regarded as a highly representative Olympic element and is widely used in various types of Olympic publicity and Olympic sponsorship. In the company's product advertising.
The unauthorized use of the Bird's Nest image has been questioned
However, since 2005, the Bird's Nest image has been found to have been used in commercial advertisements by several non-Olympic sponsors. It is obvious that by using the image of the Bird's Nest, these companies are trying to lead consumers to think that they have some connection with the Bird's Nest and even the Olympic Games, in order to achieve the purpose of developing the "eyeball economy".
Especially with the convening of the Olympic Games, this kind of attempt to use the image of the Bird's Nest to edge the Olympic Games occurs from time to time across the country, and even involves some large enterprises. At present, there is no clear legal basis in our country as to whether the unauthorized use of the Bird's Nest image for commercial promotion is an infringement. Therefore, the author believes that it is possible to refer to the legislative intention of the provisions on the protection of the Bird's Nest trademark and the exclusive right to the corporate name of the National Stadium in my country's Trademark Law and the "Enterprise Name Registration and Management Regulations" to protect the exclusive right to the Bird's Nest image, standardize and guide the Bird's Nest image Issues such as reasonable use are worthy of deep thought and discussion by people from all walks of life.
Special buildings have become the highlights of the city
The Bird's Nest is undoubtedly an architectural work. Architectural works are works of aesthetic significance expressed in the form of buildings or structures, and are protected objects by my country's copyright law. The author believes that copyright law should protect the wisdom of designers and builders contained in various architectural works, as well as original artistic elements that satisfy people's aesthetic needs.
Due to the uniqueness of literary and artistic works, after entering the commercial era of free competition, literary and artistic works began to have new values ??and functions, which is to extend the uniqueness of artistic works and transform into Product labels play the role of marking products, quality assurance and advertising, guiding consumers to distinguish between different product providers and reducing search costs.
Therefore, some specially designed text works, art works, graphic works, and model works have gradually been transformed into manufacturer names, trademarks, etc., and have received dual protection from trademark law and copyright law.
With the development of modern information, companies have begun to appear in front of consumers in various forms. In addition to product trademarks, manufacturer names, and endorsement stars, corporate buildings have also become merchants to establish corporate image and New tools for rendering individual colors. For example, the Phoenix production plants distributed around the world maintain completely consistent architectural features; in China, the Bird's Nest, Water Cube, National Center for the Performing Arts, etc., have become new highlights of Beijing's urban landscape with their respective distinctive architectural styles.
Legislative protection is still being explored
It can be seen that today, in addition to the aesthetic value of the building itself as a work of art, it is also a special symbol that expresses the identity of the owner of the building. In other words, the image of a building is a special commercial symbol abstracted from the appearance characteristics of the building. Marking these commercial symbols in commercial activities can highlight the special status of the right holder, attract consumers' attention, and bring business opportunities. Function. The author believes that the right to directly control and benefit from this kind of commercial symbol can be called the image right of the building.
In my country’s existing legislative system, only Article 47 of the Advertising Law stipulates that using the name or image of others in advertisements without consent constitutes an infringement. There is no official explanation as to the scope of the “image of others”. It is generally understood that it should include the image of natural persons, legal persons or other organizations. However, there are no successful cases of publicity rights protection in my country’s current judicial practice.
Judging from the legislative model of the international publicity rights protection system, all countries are also in the exploratory stage. The more mature one is the United States. At present, 24 states have clearly recognized the right of publicity in statutes or case law and defined it as a property right, which is subject to cross-protection by copyright law, trademark law and anti-unfair competition law; the United Kingdom has no such right. There is a special publicity right system, but protection is provided through copyright law, trademark law, design law and "passing off litigation" against unfair competition. Although Germany and Japan, which are civil law systems, have already introduced the concept of commercial publicity rights, they have not ruled The basis for the case is still traditional intellectual property law.
Architectural works are also business cards for businesses
There is currently no clear legislation in my country to protect image rights. Some people believe that since the characteristics of a building must be expressed in specific copyright works, such as pictures, models, three-dimensional animations, etc., the protection of the image of the building still falls within the scope of copyright.
In December 2007, in an architectural work infringement case brought by Porsche AG of Germany against Beijing Taiheyate Automobile Sales and Service Co., Ltd., the Beijing Second Intermediate People’s Court found in the first instance that the defendant’s architectural works were inconsistent with The Beijing Porsche Center building to which the plaintiff claimed rights had the same basic features, and it was determined that it constituted copyright infringement. The defendant was ordered to compensate the plaintiff RMB 150,000 and related reasonable expenses. This judgment was based on the relevant provisions of the Copyright Law regarding the copyright of architectural works.
Concerning this case, the People's Court found the facts clearly and applied the law correctly. However, upon further reflection, the plaintiff owns more than 600 Porsche centers with the same characteristics around the world. In addition to containing the intelligent work of architects, they also embody certain unique qualities and images of the Porsche company. If the defendant did not actually build a real building, but only abstracted certain architectural features of the Porsche Center into articles or patterns, and used them in automobile services, such as commercial advertising backgrounds, employee clothing, and badges, would this case still be possible? According to the relevant provisions of the Copyright Law, how to identify infringement and stop infringement?
The intangible reputation and reputation established by the owner of the building through long-term honest labor and legal operation are attached to the appearance characteristics of the building, but are not limited to the physical building. This is the owner of the building. image. The author believes that in the above-mentioned cases, the infringer is not just trying to imitate and build a beautiful building, but more importantly, the building will make consumers think that the infringer has some connection with Porsche, thereby achieving the purpose of publicity.
Effectively protect the interests of right holders
Copyright law protects the basic use value of literary and artistic works to meet people’s aesthetic needs; while the right of publicity protects natural persons, legal persons or other organizations image benefits, as well as the special use value of the indicator function of specific buildings, geographical and historical features. Therefore, traditional copyright law only protects the appearance features of architectural works, while the nature of publicity rights protection is obviously different from the legislative purpose of copyright law.
If the owner of the building rights has a special status, certain social influence and appeal, such as a celebrity, a well-known enterprise, a government organization, etc., and there is a conflict between the artistic characteristics of the building itself and the owner of the building rights, There is a close one-to-one correspondence. Then, just as the image of a celebrity should be protected, the image of the right holder reflected in the characteristics of the building should also be given reasonable protection. Similarly, if the image of a legal person and other organizations is composed of specific geographical features, architecture, historical traditions and other factors, then these factors combined will represent the overall image of the legal person and become the object of protection by the right of publicity.
Therefore, regarding the legal status of the right of publicity, the author is more inclined to identify it as an emerging personality right, which is not covered by copyright. When there are more and more buildings with unique artistic features, when artistic features are copied in more and more diversified ways, when more businesses use the artistic features of a building for commercial advertising without authorization to make profits, and do damage to the building. When the right holder causes damage, the concept of publicity rights of the building right holder should be separately raised and protected.
Reasonable use of the Bird's Nest image
In the case of the Bird's Nest, the image of the intertwined lines of the Bird's Nest, that is, the image of the Bird's Nest rights holder, is abstracted from the appearance characteristics of the Bird's Nest radial portal steel truss structure. It is a commercial symbol that embodies the architectural aesthetic characteristics of the Bird's Nest and the Olympic symbolic meaning of the Bird's Nest. It is unique, distinctive and iconic.
The author believes that the bird's nest rights holder's image rights, including the retention, exclusive use, control, maintenance and other rights of the bird's nest image, are based on the corresponding relationship between the bird's nest image and the Olympics established by the rights holder, and for Bringing corporate reputation, market attention and business opportunities.
In fact, due to the special status of the Bird's Nest, transactions, sponsorships, investments and any other relationships with the Bird's Nest have great commercial interests. Since our country’s laws do not explicitly stipulate the protection of the appearance of uniquely shaped buildings, the unauthorized use of the Bird’s Nest image is just on the edge of infringement and non-infringement, and the advertising effect of using the Bird’s Nest image is much better than other methods. Therefore, the unauthorized use of the bird's nest image in commercial advertisements shows signs of becoming increasingly common.
Although some companies and organizations have chosen to obtain permission from the Bird's Nest image through legal means before using it, the author believes that in order to maintain market order and protect the healthy image of the Bird's Nest as an Olympic heritage, it is necessary to clearly It is necessary to divide the legal scope of the use of the Bird's Nest image and regulate its reasonable use in accordance with the law.