The Copyright Law Does Not Protect Necessary Scenes and Limited Expression Forms in Original Works Created on Basis of the Same Historical Theme
——Zhang Xiaoyan v. Lei Xianhe, Zhao Qi and Shandong Book Lover Audio-Video and Book Co., Ltd.
[Syllabus]
The theme mainline and the overall sequence of clues in a work created on basis of the same historical theme is the common treasure of the society, which is within the scope of ideas and cannot be monopolized by any individual. Any person has the right to create a work by using such theme.
Whether a work constitutes infringement shall be judged from such aspects as whether the author of the alleged infringing work has come into contact with the work of the copyright holder and whether the alleged infringing work and the work of the copyright holder constitute substantial similarity. In judging whether substantial similarity is constituted, comparisons shall be made on whether the acceptance or rejection, choices, arrangements, and designs in the works are identical or similar rather than comparisons in ideas, emotions, originality, objects, etc.
In accordance with provisions of the Copyright Law of the People’s Republic of China on protection of works, the people's court shall protect the author's expressions with originality, namely, expression forms of ideas or emotions. Creative ideas, materials, information in public domains, creation forms, necessary scenes as well as unique or limited expression forms shall not be protected.
[Case No.] Supreme People’s Court (2013) MSZ No. 1049
[Cause of Action] Copyright dispute
[Collegial Panel Members] Yu Xiaobai Luo Dian Li Rong
[Keywords] Copyright infringement, film and TV works, historical themes, substantial similarity
[Relevant Legal Provisions] Article 2 of Copyright Law of the People’s Republic of China, Article 2 of Regulations on the Implementation of the Copyright Law of the People’s Republic of China
[Basic Facts]
Plaintiff Zhang Xiaoyan alleged that: she began to produce and adapt the script of ‘高原骑兵连’ in December 1999. In August 2000, a 20-episode TV series named ‘高原骑兵连’ (the script and the TV play are hereinafter referred to as the ‘TV Play of Miss Zhang’) was prepared to shoot, and completed in December 2000. Zhang Xiaoyan was the copyright holder of such TV series. Defendant Lei Xianhe participated in the production of the TV series as the honorary producer of ‘高原骑兵连’. Defendant Lei Xianhe as the first scriptwriter and producer, and Defendant Zhao Qi as the second scriptwriter, shot the TV series of ‘最后的骑兵’ (the TV play and the script thereto are hereinafter referred to as the ‘TV Play of Mr. Lei’). On July 1, 2009, Zhang Xiaoyan bought the DVD of ‘最后的骑兵’ from Defendant Shandong Book Lover Audio-Video and Book Co., Ltd., and found that ‘最后的骑兵’ was same as or similar to the ‘TV Play of Miss Zhang’ in terms of relationship of main characters and story line and other aspects, therefore, the ‘TV Play of Mr. Lei’ infringed the script and TV play of ‘TV Play of Miss Zhang’. She therefore applied to the court requesting to order: the three Defendants stop infringement, and Lei Xianhe make a public statement of apology in Qilu Evening News, and compensate Zhang Xiaoyan for her losses of script remunerations, publication and distribution as well as adaptation of script, i.e. RMB 800,000 in total.
Defendant Lei Xianhe argued that: the script of the ‘TV Play of Miss Zhang’ was adapted from the full-length novel of Zhang Guanlin ‘雪域河源’, but the ‘TV Play of Mr. Lei’ was first adapted by Lei Xianhe on basis of Shi Yonggang’s full-length novel ‘天苍茫’ and rewritten by Zhao Qi on basis of ‘骑马挎枪走天涯’. In the first half of 2000, Zhang Xiaoyan proposed to make a TV play reflecting the life of cavalry with Lei Xianhe. Lei Xianhe introduced the adaption of ‘天苍茫’ to Zhang Xiaoyan, and proposed to make the film together, but Zhang Xiaoyan refused. In August 2000, Lei Xianhe and Zhang Xiaoyan signed a cooperative agreement, pursuant to which Zhang Xiaoyan is in the charge of the shooting, and Lei Xianhe is responsible for the military security, but does not participate in the artistic creation. Lei Xianhedid not see the script of Zhang Xiaoyan. As the ‘TV Play of Mr. Lei’ was created and broadcast in different time with the ‘TV Play of Miss Zhang’, the ‘TV Play of Mr. Lei’ was unlikely to affect the creation and broadcast of the ‘TV Play of Miss Zhang’.
It was found by the court through investigation that: 'TV Play of Miss Zhang’, ‘TV Play of Mr. Lei’, ‘骑马挎枪走天涯’, and ‘天苍茫’ were 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. The short story ‘骑马挎枪走天涯’ was published in Issue 512 of Literature and Art of the People's Liberation Army (Issue 12, 1996); the full-length novel ‘天苍茫’ was published by the Liberation Army Art Press in April 2001; the ‘TV Play of Miss Zhang’ was broadcast on CCTV-8 in the morning from May 17, 2004 to May 21, 2004, with four episodes a day; the ‘TV Play of Mr. Lei’ was broadcast on CCTV-1 in the evening prime time during May 19-29, 2004, with two episodes a day.
‘骑马挎枪走天涯’ describes the bright moment of cavalry in history, withdrawal of the cavalry and obsession of cavalry soldiers (especially the company commander) with cavalry and war horse through the description of the company commander, instructor and a strong war horse before and after withdrawal of the cavalry. ‘骑马挎枪走天涯’ includes the following descriptions: the war horse (War Horse No. 15) has a mysterious family background and origin, the company commander and the war horse get along with each other in harmony, the personalities of the instructor Kong Yuehua, the company commander makes poems, father of the company commander was the regiment commander of cavalry, the cavalry plays an important role in the future war, the company commander makes great efforts to retain the squadron of cavalry, the squadron of cavalry is withdrawn at last and the solemnity of the company commander and war horse at the end of the novel. In the ‘TV Play of Mr. Lei’, the horse is also mysterious, and except that the father of Chang Wentian, the company commander, was a division commander, the ‘TV Play of Mr. Lei’ is basically the same as “骑马挎枪走天涯” in terms of the aforesaid plots and contents.
‘天苍茫’ is a book of the legendary and mysterious history of the last squadron of cavalry of Chinese army, describing the lives in prairie and lives of cavalry, such as the emotions between horse and human, the value of the genes of the last wild horse, the elder studying horse language and the mysterious prophet, telling a story that the last wild horse won the game in the race course of Hong Kong. In ‘天苍茫’, father of the company commander Cheng Tian was the division commander of cavalry, and the region commander was the first company commander of Shannan Squadron of Cavalry and a former subordinate of Cheng Tian’s father. Cheng Tian secretly fell in love with the region commander’s daughter Lan Jing when he was young, but the instructor Wang Qingyi was in love with Lan Jing, and he helped the romance between Cheng Tian and Liu Keke, a genetics researcher. At last, the company commander sacrificed for saving the researchers trapped in marsh. In the ‘TV Play of Mr. Lei’, Gao Bo leads the horse “Da Lama” of former instructor, which runs fast and steady and has a good temper, to Chang Wentian for his use temporarily. In the end, the company commander sacrifices for completing the arresting task. The descriptions on the relation between the instruction Kong Yuehua and the company commander Chang Wentian in the ‘TV Play of Mr. Lei’ are similar to those on the relation between instruction Wang Qingyi and the company commander Cheng Tian in ‘天苍茫’.
The court entrusted the Copyright Identification Commission of the Copyright Protection Center of China to legally identify the ‘TV Play of Miss Zhang’ and the ‘TV Play of Mr. Lei’, and concludes that: 1. the two TV Plays are similar in their setting and relations of main characters; 2. the main line, i.e. withdrawing (downsizing) the cavalry unit are similar; 3. the two TV Plays are same or similar in some plots, but they are different in specific language expressions except one is basically the same. 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 4th episode of the TV series of the ‘TV Play of Miss Zhang’, Qin Dongji says: “The green-land is my home, treat my horse as my partner, I want to be a herdsman.” In the 18th episode of the ‘TV Play of Mr. Lei’, Chang Wentian says: “I treat the green-land as my home and my horse as my partner. Have you seen the film The Herdsman? I want to be a free herdsman.”
Holding
On July 13, 2011, the Intermediate People’s Court of Jinan Municipality, Shandong Province, rendered the Civil Judgment (2010) JMSCZ No. 84 rejecting all claims of Zhang Xiaoyan’s. Unconvinced, Zhang Xiaoyan appealed. On June 14, 2012, the Higher People’s Court of Shandong Province rendered the Civil Judgment (2011) LMSZZ No. 194 rejecting the appeal and affirming the original judgment. Unconvinced, Zhang Xiaoyan applied to the Supreme People’s Court for a retrial. On November 28, 2014, the Supreme People’s Court, after review, rendered the Civil Ruling (2013) MSZ No. 1049 rejecting Zhang Xiaoyan’s application for a retrial.
[Reasoning]
After trial, the Supreme People’s Court holds that: the focal point of the dispute in this Case is whether the script and television series of the ‘TV Play of Mr. Lei’ infringed upon the copyrights associated with the script and television series of the ‘TV Play of Miss Zhang’.
A judgment as to whether a work constitutes an infringement of copyright should be made from two aspects: whether the author of the allegedly infringing work has ever been “exposed” to the work of the copyright holder who demands protection and whether there is any “substantive similarity” between the allegedly infringing work and the copyright holder’s work. None of the parties in this Case disputes the fact that Lei Xianhe has been exposed to the script and television series of the ‘TV Play of Miss Zhang’. The key question of this Case is whether there is any “substantive similarity” between the two works.
The Copyright Law of China 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 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 as thoughts and are also not provided with copyright protection. When judging whether there is any substantive similarity between the ‘TV Play of Mr. Lei’ and the ‘TV Play of Miss Zhang’, comparisons shall be made with respect to the expressions of thoughts and emotions in two works, whether or not the authors’ choices, selections, arrangements, and designs, as expressed in the works are same or similar, rather than departing from expressions to look at other aspects, such as thoughts, emotions, creative ideas, objects, etc. The analysis and judgment are made on basis of the following aspects, in combination with Zhang Xiaoyan’s claims:
Concerning the claim made by Zhang Xiaoyan that the main line of the subject matter in the ‘TV Play of Mr. Lei’ and that in the ‘TV Play of Miss Zhang’ are the same. Because both the ‘TV Play of Mr. Lei’ and ‘骑马挎枪走天涯’, 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, it can be determined that the main line of the subject matter as well as the overall thread and sequence of ideas in the ‘TV Play of Mr. Lei’ are from ‘骑马挎枪走天涯’. The ‘TV Play of Miss Zhang’, the ‘TV Play of Mr. Lei’, ‘骑马挎枪走天涯’ and ‘天苍茫’ 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 are some similarities between the main line of the subject matter in the ‘TV Play of Mr. Lei’ and [that in] the ‘TV Play of Miss Zhang’, 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 ‘TV Play of Mr. Lei’ is from ‘骑马挎枪走天涯’, which was the earliest of the works published, the court could not determine that the ‘TV Play of Mr. Lei’ was copied from the ‘TV Play of Miss Zhang’.
Concerning the claim made by Zhang Xiaoyan that the setups of the main characters and their relationships in the ‘TV Play of Mr. Lei’ and ‘TV Play of Miss Zhang’ 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 ‘骑马挎枪走天涯’, 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 ‘TV Play of Mr. Lei’ and the ‘TV Play of Miss Zhang’ 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 ‘TV Play of Mr. Lei’ and ‘TV Play of Miss Zhang’, 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. From the plots of the stories, a story plot that is used to manifest an author’s thoughts and emotions falls within the ambit of expressions. 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, only some elements in the plots of stories are the same, but the specific contents 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 in the ‘TV Play of Mr. Lei’ and ‘TV Play of Miss Zhang’ 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 ‘天苍茫’. Although the plot design in other parts of the two series is 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.
Generally speaking, in the ‘TV Play of Mr. Lei’ and the ‘TV Play of Miss Zhang’, the specific unfolding is different, the focuses of depiction are different, the personalities of the lead characters are different, and the endings are different. The plots of the two series that are the same or similar only take an extremely low proportion in the ‘TV Play of Mr. Lei’ and are of secondary importance in its entire story plot. They do not constitute the main parts of the ‘TV Play of Mr. Lei’ and will 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 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 ‘TV Play of Mr. Lei’ and the ‘TV Play of Miss Zhang’ are works on the same subject matter created independently by different authors. Accordingly, the two series have originality and each author enjoyed independent copyright.
