ZHANG Xiaoyan v. LEI Xianhe, ZHAO Qi, and Shandong Aishuren Audio-Video & Book Co., Ltd., A Copyright Infringement Dispute CHINA GUIDING CASES PROJECT

Transcription

1 ZHANG Xiaoyan v. LEI Xianhe, ZHAO Qi, and Shandong Aishuren Audio-Video & Book Co., Ltd., A Copyright Infringement Dispute Guiding Case No. 81 (Discussed and Passed by the Adjudication Committee of the Supreme People s Court Released on March 6, 2017) CHINA GUIDING CASES PROJECT English Guiding Case (EGC81) August 23, 2017 Edition The citation of this translation of this Guiding Case is: 张晓燕诉雷献和 赵琪 山东爱书人音像图书有限公司著作权侵权纠纷案 (ZHANG Xiaoyan v. LEI Xianhe, ZHAO Qi, and Shandong Aishuren Audio-Video & Book Co., Ltd., A Copyright Infringement Dispute), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC81), Aug. 23, 2017 Edition, The original, Chinese version of this case is available at 中国法院网 ( See also 最高人民法院关于发布第 16 批指导性案例的通知 (The Supreme People s Court s Notice Concerning the Release of the 16 th Batch of Guiding Cases), issued on and effective as of Mar. 6, 2017, This document was primarily prepared by Oma Lee, Lu Li, Troy Song, Peter Witherington, Sean Webb, and Dr. Mei Gechlik; it was finalized by Peter Witherington, Dimitri Phillips, and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People s Court.

2 2 Keywords Civil Copyright Infringement Film and Television Works Historical Subject Matter Substantive Similarity Main Points of the Adjudication 1. For works created based on the same historical subject matter, the main lines of the subject matter as well as the overall threads and sequences of ideas are common wealth of society, fall within the ambit of thoughts, and cannot be monopolized by individuals. Any person has the right to use such subject matter and to create works [based on it]. 2. A judgment as to whether a work constitutes an infringement of [copy]rights should be made from [the following] aspects[:] whether the author of the allegedly infringing work has been exposed to the right-holder s work, whether there is [any] substantive similarity between the allegedly infringing work and the right-holder s work, etc. When determining whether there is [any] substantive similarity [between two works], [a people s court] should compare the authors choices, selections, arrangements, designs, etc., as expressed in the works, [to determine whether they] are the same or similar; [the court] should not compare such aspects as thoughts, emotions, creative ideas, objects, etc. 3. On the basis of the Copyright Law, which provides for the protection of works, a people s court should protect the expressions of an author that have originality, i.e., forms of showing [the author s] thoughts or emotions. [The Copyright Law] offers no protection to creative ideas, source material, public domain information, forms of creation, [or] necessary scenes, nor to forms of expression that are unique or limited. Related Legal Rule(s) Article 2 of the Copyright Law of the People s Republic of China 1 Article 2 of the Implementing Regulation on the Copyright Law of the People s Republic of China 2 1 中华人民共和国著作权法 (Copyright Law of the People s Republic of China), passed and issued on Sept. 7, 1990, effective as of June 1, 1991, amended two times, most recently on Feb. 26, 2010, effective as of Apr. 1, 2010, 2 中华人民共和国著作权法实施条例 (Implementing Regulation on the Copyright Law of the People s Republic of China), passed by the State Council on Aug. 2, 2002, issued on Aug. 2, 2002, effective as of Sept. 15, 2002, amended two times, most recently on Jan. 16, 2013, effective as of Mar. 1, 2013,

3 3 Basic Facts of the Case Plaintiff ZHANG Xiaoyan claimed: in December 1999, she 3 began adapting [a work of fiction 4 ] to create the script The Highland Troop. 5 In August 2000, [she], based on the script, organized the shooting of 20 episodes of a television series [titled] The Highland Troop (hereinafter the script and the television series thereof are referred to as the Zhang Series ). In December 2000, the filming and production of the series were completed and ZHANG Xiaoyan was the copyright owner of the series. Defendant LEI Xianhe participated in the filming and production of the series The Highland Troop as its honorary producer. Defendant LEI Xianhe, as first screenwriter and producer, and defendant ZHAO Qi, as second screenwriter, filmed the television series The Last Cavalryman 6 (hereinafter the television series and the script thereof are referred to as the Lei Series ). On July 1, 2009, ZHANG Xiaoyan purchased DVD discs of The Last Cavalryman from defendant Shandong Aishuren Audio-Video & Book Co., Ltd. 7 She discovered that there were many similarities between [the Lei Series] and the Zhang Series: the relationships of the main characters, the plots of the stories, and other aspects were the same or similar. [ZHANG Xiaoyan claimed that] the Lei Series constituted an infringement of rights vis-à-vis the script and television series of the Zhang Series. Therefore, [she] requested that the court order the three defendants to cease the infringement of rights, LEI Xianhe to publish a statement of apology on the Qilu Evening News 8 and, LEI Xianhe to pay ZHANG Xiaoyan a total of RMB 800,000 as compensation for [her] loss of remuneration for the script [of The Highland Troop] and [her] loss of fees for publishing and adapting the script [from the below-mentioned work of fiction]. 9 Defendant LEI Xianhe defended his 10 position, claiming: the script of the Zhang Series was adapted from ZHANG Guanlin s [work of] long fiction Snowy Plateau. 11 The Lei Series was 3 Feminine pronouns are used to refer to the plaintiff because the name 张晓燕 ( ZHANG Xiaoyan ) is more commonly found among females. 4 The work is 雪域高原 ( Snowy Plateau ), as mentioned below; see infra note The name 高原骑兵连 is translated herein as The Highland Troop in accordance with a website hosting the professional profile of actor ZU FENG, at 6 The name 最后的骑兵 is translated herein literally as The Last Cavalryman. 7 The name 山东爱书人音像图书有限公司 is translated herein literally as Shandong Aishuren Audio- Video & Book Co., Ltd. 8 The name 齐鲁晚报 is translated here literally as Qilu Evening News. 9 In the original judgment, the Supreme People s Court s ordered LEI Xianhe and ZHAO Qi to jointly and severally pay the compensation ( 雷献和 赵琪连带赔偿 ). See 雷献和 赵琪与张晓燕其他著作权权属侵权纠纷申请再审民事裁定书 (LEI Xianhe, ZHAO Qi, and ZHANG Xiaoyan et al., The Civil Ruling on an Application for Retrial of a Copyright Infringement Dispute) (2013) 民申字第 1049 号 ((2013) Min Shen Zi No Civil Ruling), rendered by the Supreme People s Court on Nov. 28, 2014, full text available on the Stanford Law School China Guiding Cases Project s website, at 10 Masculine pronouns are used to refer to defendant LEI Xianhe ( 雷献和 ) because the name is more commonly found among males.

4 4 initially adapted from SHI Yonggang s [work of] long fiction The Boundless Grey Sky 12 by LEI Xianhe but the script was rewritten and finalized by ZHAO Qi with reference to [ZHAO Qi s work of] fiction Carrying a Gun to Travel Around the World on Horseback. 13 In the first half of 2000, ZHANG Xiaoyan approached LEI Xianhe, proposing to jointly shoot a television series that reflected cavalry life. LEI Xianhe mentioned to ZHANG Xiaoyan [the fact that] The Boundless Grey Sky was being adapted and proposed to jointly shoot [this series], but ZHANG Xiaoyan did not agree. In August 2000, LEI Xianhe and ZHANG Xiaoyan signed a cooperation agreement, stipulating that ZHANG Xiaoyan was to be in charge of filming and production and LEI Xianhe was to be in charge of military safeguards and was not to participate in artistic creation, [and] LEI Xianhe did not see ZHANG Xiaoyan s script. The Lei Series and Zhang Series were created for broadcasting at different times and it was not possible for the Lei Series to influence the release of the Zhang Series for broadcasting. The court handled the case and ascertained: 14 the Zhang Series, the Lei Series, Carrying a Gun to Travel Around the World on Horseback, and The Boundless Grey Sky are all works on military and historical subject matters [and] take the demobilization ([or] reduction) of cavalry units during the [military] streamlining and reorganization of the mid-1980s 15 as the main line. The [work of] short fiction Carrying a Gun to Travel Around the World on Horseback was published in the 1996 Issue No. 12 (Overall Issue No. 512) of People s Liberation Army Literature and Art. 16 The [work of] long fiction The Boundless Grey Sky was published by the People s Liberation Army Literature and Arts Publishing House 17 in April The Zhang Series was broadcast during the mornings of May 17 through May 21, 2004, by China Central Television 18 Channel 8 at the rate of four episodes per day. The Lei Series was broadcast during the Golden Time in the evenings 19 from May 19 through May 29, 2004, by China Central Television Channel 1 at the rate of two episodes per day. 11 The name 雪域河源 is translated herein literally as Snowy Plateau. 12 The name 天苍茫 is translated herein literally as The Boundless Grey Sky. 13 The name 骑马挎枪走天涯 is translated herein literally as Carrying a Gun to Travel Around the World on Horseback. 14 The original text does not specify which court is referred to here. It is likely meant to be the first-instance court of this case, namely, the Intermediate People s Court of Jinan Municipality, Shandong Province. 15 The original text reads 二十世纪八十年代 ( the eighties of the twentieth century ) and is translated herein as 1980s. 16 The name 解放军文艺 is translated here as People s Liberation Army Literature and Art in accordance with the translation used on a record concerning the journal, at 17 The name 解放军文艺出版社 is translated here as People s Liberation Army Literature and Arts Publishing House in accordance with the translation used in the record of a book, at 18 The name 中央电视台 is translated herein as China Central Television in accordance with the translation used on the company s website, at 19 The term 晚上黄金时段 is translated here literally as the Golden Time in the evenings. In Chinese television, this prime time generally refers to the time slot from 7 p.m. to 10 p.m. See, e.g.,

5 5 Through the portrayal of a company commander, an instructor, and a mystical warhorse before and after their cavalry company is demobilized, Carrying a Gun to Travel Around the World on Horseback describes the glorious history of the cavalry, the demobilization of the cavalry company, and the strong passion felt by the officers and soldiers of the cavalry company, especially the cavalry company commander, towards the cavalry and their warhorses. Carrying a Gun to Travel Around the World on Horseback depicts[, inter alia,] the following: the mysterious background of the mystical horse (No. 15 Army Horse); the perfect harmony between the company commander and his army horse; the character of instructor KONG Yuehua; the company commander s composition of poetry; [the company commander s] father s experience serving as a regiment commander; the significant role to be played by cavalry in future wars; the efforts made by the company commander to save the cavalry company; the ultimate demobilization of the cavalry company; and the tragic ending of the company commander and the mystical horse. In the Lei Series, the origins of the heavenly horse are also mysterious. With respect to the above-mentioned content of the plot, the Lei Series is basically similar to that of Carrying a Gun to Travel Around the World on Horseback, with the exception that the father of company commander CHANG Wentian was a cavalry division commander [rather than a regiment commander]. The book The Boundless Grey Sky tells a tale, suffused with legend and mystery, about the last cavalry company in the Chinese army. The book depicts a legendary story about life on the grassland and in the cavalry (e.g., the emotional [bonds] between humans and horses as well as the genetic value of the last remaining wild horse), an old man who studies the language of horses, a mysterious foreteller, and the last wild horse s triumph at a Hong Kong racetrack. In The Boundless Grey Sky, the father of [cavalry] company commander CHENG Tian was the commander of a former cavalry division. [CHENG Tian s] commanding officer was the first commander of Shannan Cavalry Company and is a former subordinate of CHENG Tian s father. Since childhood, CHENG Tian has been secretly in love with his commanding officer s daughter, LAN Jing. Instructor WANG Qingyi and LAN Jing are in love and [WANG Qingyi] works to spark a romance between CHENG Tian and LIU Keke, a geneticist. In the end, company commander [CHENG Tian] sacrifices his life in order to rescue (a) researcher(s) trapped in a swamp. 20 In the Lei Series, GAO Bo takes Da La Ma, a former instructor s horse that runs swiftly and steadily and is good-tempered, and gives it to [company commander] CHANG Wentian to serve as his temporary mount. In the end, the company commander sacrifices himself while making an arrest. The description of the relationship between instructor KONG Yuehua and company commander CHANG Wentian in the Lei Series is similar to the plot content regarding 20 The original text does not distinguish between singular researcher and plural researchers : 最后连长为救被困沼泽的研究人员牺牲.

6 6 the relationship between instructor WANG Qingyi and company commander CHENG Tian in The Boundless Grey Sky. The court entrusted, in accordance with law, the Copyright Authentication Committee of Copyright Protection Center of China 21 to carry out appraisals of the Zhang Series and the Lei Series [and the appraisals yielded] the following conclusions: 1. the setup of the main characters and their relationships are partially similar; 2. the main threads and sequences of ideas, i.e., the reduction ([or] demobilization) of cavalry units, have similarities; 3. [their] plots are partially the same or similar, but, with the exception of one verbal expression that is basically the same [in each series], the specific expressions of the plots are basically different. The plot [point] with a basically identical verbal expression refers to the statement, made by the male lead of each work, that he is willing to be a herdsman. In the fourth episode of the television series of the Zhang Series, QIN Dongji says: The greenland is [my] home, [I] treat [my] horse as [my] partner, [I want to] be a herdsman. In the 18 th episode of the Lei Series, CHANG Wentian says: [I] treat the greenland as [my] home and [my] horse as [my] partner. Have you seen the film The Herdsman? 22 [I want to] be a free herdsman. 23 Results of the Adjudication On July 13, 2011, the Intermediate People s Court of Jinan Municipality, Shandong Province, rendered the (2010) Ji Min San Chu Zi No. 84 Civil Judgment: 24 [the court] rejects all of ZHANG Xiaoyan s litigation requests. Unconvinced, ZHANG Xiaoyan appealed. On June 14, 2012, the Higher People s Court of Shandong Province rendered the (2011) Lu Min San Zhong Zi No. 194 Civil Judgment: 25 [the court] rejects the appeal and upholds the original judgment. Unconvinced, ZHANG Xiaoyan applied to the Supreme People s Court for a retrial. 26 On 21 The name 中国版权保护中心版权鉴定委员会 is translated here as the Copyright Authentication Committee of Copyright Protection Center of China in accordance with the translation used in Guiding Case No. 49. See 石鸿林诉泰州华仁电子资讯有限公司侵害计算机软件著作权纠纷案 (SHI Honglin v. Taizhou Huaren Electronic Information Co., Ltd., A Dispute over Computer Software Copyright Infringement), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC49), Nov. 15, 2015 Edition, 22 The name 牧马人 is translated herein as The Herdsman in accordance with a Wikipedia article concerning the movie, at 23 In the original text, these quotations appear as 愿做牧马人 ( willing to be a herdsman ), 草原为家, 以 马为伴, 做个牧马人 ( The greenland is [my] home, [I] treat [my] horse as [my] partner, [I want to] be a herdsman ), and 以草原为家, 以马为伴, 你看过电影 牧马人 吗? 做个自由的牧马人 ( [I] treat the greenland as [my] home and [my] horse as [my] partner. Have you seen the film The Herdsman? [I want to] be a free herdsman ). 24 The first-instance judgment has not been found and may have been excluded from publication. 25 The second-instance judgment has not been found and may have been excluded from publication. 26 The original text reads 申请再审 ( applied [...] for a retrial ). Article 199 of the Civil Procedure Law of the People s Republic of China provides, inter alia, that a party who considers an effective judgment or ruling to be erroneous may apply to the court at the next higher level for a retrial. See 中华人民共和国民事诉讼法 (Civil

7 7 November 28, 2014, the Supreme People s Court, after review, rendered the (2013) Min Shen Zi No Civil Ruling: 27 [the court] rejects ZHANG Xiaoyan s application for a retrial. Reasons for the Adjudication In the effective ruling, the court opined: 28 the focal point of the dispute in this case was whether the script and television series of the Lei Series infringed upon the copyrights [associated with] the script and television series of the Zhang Series. A judgment as to whether a work constitutes an infringement of [copy]rights should be made from two aspects: 29 whether the author of the allegedly infringing work has ever been exposed to the work of the right-holder who demands protection and whether there is [any] substantive similarity between the allegedly infringing work and the right-holder s work. None of the parties in this case disputed [the fact] that LEI Xianhe had been exposed to the script and television series of the Zhang Series. The key question of this case was whether there was [any] substantive similarity between the two works. The Copyright Law of China 30 protects the expressions of an author, in a work, that have originality, i.e., forms of showing [the author s] thoughts or emotions. [The protection] does not cover the thoughts or emotions themselves reflected in the work. Thoughts, as referred to here, include understandings of material existence, objective facts, human emotions, and thinking methods. [Thoughts] are objects that [a person] describes and shows and [they] fall within the ambit of subjectivity. Creation is a process that can be perceived by others and during which thinkers, by means of material media, show ideas by recourse to forms, convert imagery to images, and convert [something] abstract, subjective, or intangible to [something] concrete, objective, or tangible. Expressions which are formed by creation and which have originality are a type of work protected by the Copyright Law. Expressions protected by the Copyright Law do not merely refer to the text, color, lines, and symbols of the final form [of a work]. When the content of a work is used to manifest the author s thoughts and emotions, the content is also a type of expression protected by the Copyright Procedure Law of the People s Republic of China), passed on, issued on, and effective as of Apr. 9, 1991, amended three times, most recently on June 27, 2017, effective as of July 1, 2017, 27 See 雷献和 赵琪与张晓燕其他著作权权属侵权纠纷申请再审民事裁定书 (LEI Xianhe, ZHAO Qi,, and ZHANG Xiaoyan et al., The Civil Ruling on an Application for Retrial of a Copyright Infringement Dispute) (2013) 民申字第 1049 号 )((2013) Min Shen Zi No Civil Ruling), supra note The original text does not specify which court opined. Given the context, this should be the Supreme People s Court. 29 In the Main Points of the Adjudication of this Guiding Case, the aspects to be used are not said to be two ; moreover, the list of aspects there ends with 等. 30 The original text reads 我国 ( my/our country ) and is translated here as China.

8 8 Law. However, creative ideas, source material, or public domain information [as well as] forms of creation, necessary scenes, or expressions that are unique or limited are excluded from the scope of protection of the Copyright Law. Necessary scenes refer to certain events, roles, layouts, and scenes that are inevitable and must be used when a certain theme is selected for creation. Such indispensable ways of giving expression to a particular theme are not protected by the Copyright Law. The term expressions that are unique or limited refers to [instances] where there are unique or limited forms of expression for a certain thought. These expressions are deemed thoughts and are also not provided with copyright protection. When judging whether there is [any] substantive similarity between the Lei Series and the Zhang Series, [a people s court] should compare the expressions of thoughts and emotions in these two works. [The court should compare] the authors choices, selections, arrangements, and designs, 31 as expressed in the works, [to determine whether they] are the same or similar, rather than departing from expressions to look at other aspects, such as thoughts, emotions, creative ideas, objects, etc. [The Supreme People s Court considered] the following aspects, in combination with ZHANG Xiaoyan s claims, to carry out its analysis and judgment. Concerning the claim made by ZHANG Xiaoyan that the main line of the subject matter in the Lei Series and [that in] the Zhang Series are the same. Because both the Lei Series and Carrying a Gun to Travel Around the World on Horseback, by closely [following] the theme and situation about a hero s dead end, a cavalryman s swan song, describe stories about the last cavalryman before and after demobilization, [the Supreme People s Court] could determine that the main line of the subject matter as well as the overall thread and sequence of ideas in the Lei Series are from Carrying a Gun to Travel Around the World on Horseback. The Zhang Series, the Lei Series, Carrying a Gun to Travel Around the World on Horseback, and The Boundless Grey Sky are four works that [are] on military and historical subject matters [and] take the demobilization ([or] reduction) of cavalry units during the [military] streamlining and reorganization of the mid-1980s as their main line. [This main line] is common wealth of society and cannot be monopolized by individuals. Therefore, the authors of these four works have the right to use, in their own ways, such [historical] subject matter and to create works [based on it]. Consequently, even if there exist some similarities between the main line of the subject matter in the Lei Series and [that in] the Zhang Series, because the main line of the subject matter is not protected by the Copyright Law, and the main line of the subject matter in the Lei Series is from Carrying a Gun to Travel Around the World on Horseback, which was the earliest [of the works] published, [the court] could not determine that the Lei Series was copied from the Zhang Series. 31 In the Main Points of the Adjudication of this Guiding Case, this list ends with 等 : 应比较作者在作品表达中的取舍 选择 安排 设计等 ( choices, selections, arrangements, designs, etc. ).

9 9 Concerning the claim made by ZHANG Xiaoyan that the setups of the main characters and their relationships in the Lei Series and Zhang Series are the same or similar The aforementioned four works are all on military subject matters [and] take the demobilization ([or] reduction) of cavalry units during a certain historical period as their main line. Except for Carrying a Gun to Travel Around the World on Horseback, which is limited by the length of short fiction and, [thus, does not include] any triangular love relationship or relationship between the military and civilians, the other three works all cover such setups of the main characters and their relationships as the triangular love relationships, the superior-inferior relationships between officials and soldiers, and the relationship between the military and civilians. These ways of depicting [this subject matter involve] necessary scenes that are inevitable and [must be] used in a work about the military subject matter. Because the ways of giving expression to [this subject matter] are limited, they are not protected by the Copyright Law. Concerning the claim made by ZHANG Xiaoyan that the verbal expressions and the plots of the stories in the Lei Series and the Zhang Series are the same or similar Looking at verbal expressions, for example, the verbal expressions be a free herdsman and be a herdsman [used] in the Lei Series and Zhang Series, [respectively,] are basically the same. However, these verbal expressions are a type of phrase customarily used in a specific context; they are not original expressions. Looking at the plots of the stories, a story plot that is used to manifest an author s thoughts and emotions falls within the ambit of expression. A story plot that has originality should be protected by the Copyright Law. However, [if] only some elements of the plots of the stories are the same or similar, [one] cannot necessarily draw the conclusion that the plots of the stories are the same or similar. The parts of the aforementioned four works that are the same or similar are mostly a type of public domain source material or source material that lacks originality. In some of [these parts], some elements in the plots of the stories are the same, but the specific content and the meanings expressed [by these elements] as unfolded by the plots are not the same. The second-instance court determined that six points of the plots of the stories in the Lei Series and Zhang Series are the same or similar. Among [these points are] those about the relationship with a former subordinate, about assigning a temporary mount, etc., and similar plot content also appears in The Boundless Grey Sky. Although the plot designs in other parts [of the two series] are the same or similar, some of these merely [show] that a few elements used in the expression of the plots are the same or similar. The parts [of the two series] with the same or similar plot content are few and insignificant. Overall, [in] the Lei Series and the Zhang Series, the specific unfoldings of the plots are different, the focuses of the depictions are different, the personalities of the lead characters are different, and the endings are different. The plots of the stories of the two [series] that are the same or similar account for an extremely low proportion in the Lei Series and are of secondary importance in its entire story plot. They do not constitute the main parts of the Lei Series and will

10 10 not cause the readers and viewers to have the same or similar experiences in appreciating the two works. [Therefore, one] cannot draw the conclusion that the two works have [any] substantive similarity. Article 15 of the Interpretation of the Supreme People s Court on Several Issues Concerning the Application of Law in the Adjudication of Copyright Civil Disputes 32 provides: [Where] works on the same subject matter are created by different authors and the expression of [each] work is completed independently and has creativity, [a people s court] should determine that [each] author enjoys independent copyrights. The Lei Series and the Zhang Series are works on the same subject matter created [independently] by different authors. Accordingly, the two series have originality and [each author] enjoyed independent copyright. (Adjudication personnel of the effective judgment: YU Xiaobai, LUO Dian, and LI Rong) 32 最高人民法院关于审理著作权民事纠纷案件适用法律若干问题的解释 (Interpretation of the Supreme People s Court on Several Issues Concerning the Application of Law in the Adjudication of Copyright Civil Disputes), passed by the Adjudication Committee of the Supreme People s Court on Oct. 12, 2002, issued on Oct. 12, 2002, effective as of Oct. 15, 2002,