Divide of Idea and Expression, and the Way to Judge Adaptation Right Infringement Concerning Literary Works
——Chen Zhe (pen name: Chiung Yao) v. Yu Zheng
(pen name: Yu Zheng) et al.
[Syllabus]
Works are the object of copyright. However, not all the elements in works are protected by the copyright law. Idea-expression dichotomy is the basic principle to distinguish the protected and unprotected elements in works. In essence, the copyright law protects expressions of ideas, instead of ideas per se. Neither can expressions in literary works be limited to dialogues, wording and phrasing, nor can the theme, subject matter and ordinary character relations in literary works be identified as the expressions protected by the copyright law. In literary works, plots are closely connected through successive scenes and logical sequence to form complete and individualized expressions. Such organic integration of sufficiently specific character setting, plot structure and inherent logical relations can become expressions protected by the copyright law.
The right of adaption refers to the right to change the work, and create a new work with originality. The acts under direct control of the right of adaption are those of adaptation, i.e. the acts to change the work and create a new work with originality. The new work shall retain the basic expressions in the original work. Otherwise, the right of adaption does not control the new work created only on basis of the ideas of the original work. For the accused acts to be found infringing the right of adaption of the right holder, the two requirements of access and substantial similarity usually need to be both met.
Access means that the accused infringer has the chance to access, know about or experience the copyrighted works of the right holder. Access can be presumed. Substantial similarity can be determined on basis of abstract separation or overall expression. To judgment whether or not the literary works are substantially similar, the two ways can be used together according to specific circumstances of the case, and reasonable reference shall be excluded.
[Case No.] Beijing High People’s Court (2015) GM (Z) ZZ No. 1039
[Cause of Action] Copyright infringement dispute
[Collegial Panel Members] Xie Zhenke Yuan Xiangjun
Zhong Min
[Judge Assistant] Qi Lei
[Keywords] Ideas, access, expression, substantial similarity
[Relevant Legal Provisions] Subclause 1(14) of Article 10, Article 12 and Article 47(6) of the Copyright Law of the People's Republic of China
[Basic Facts]
The Plaintiff Chiung Yao is a famous script writer from Taiwan. The Defendant Yu Zheng is a famous script writer from the mainland of China. The script of “Meihualao” created by the Plaintiff Chiung Yao was completed in October 1992, and not published in paper form. The novel “Meihualao” was adapted from the script of “Meihualao”, completed on June 30, 1993, and publicly distributed in Taiwan since September 15, 1993 and published in the Chinese mainland in the same year. The Plaintiff Chiung Yao of this Case is the author of the novel “Meihualao”. The TV series “Meihualao” was premiered in Taiwan on October 13, 1993, and in the Chinese mainland on April 13, 1994. The TV series “Meihualao” are highly similar to the script of “Meihualao”. As shown in the opening credits of TV series “Meihualao”, the script writer was Lin Jiuyu, who issued a notarized Statement on June 20, 2014 that she was only responsible for taking the dictation of the Plaintiff’s creation and consolidating and editing of the script, and the script of “Meihualao” was independently created by the Plaintiff Chiung Yao. The Defendant Yu Zheng was the recorded author of the script of “Palace 3: the Lost Daughter”, i.e. the named script writer of the TV series “Palace 3: the Lost Daughter”. The script of “ Palace 3: the Lost Daughter” was completed on July 17, 2012 and first published on April 8, 2014. The TV series “Palace 3: the Lost Daughter” was shot in accordance with the script of “Palace 3: the Lost Daughter”, and its plot and content were basically the same as the script of “Palace 3: the Lost Daughter” in contents. The TV series “Palace 3: the Lost Daughter” was premiered in Hunan TV on April 8, 2014. It was stated in the ending credits of the TV series that production companies were Hunan eTV Culture Media Co., Ltd., Dongyang Huanyu Film and Television Culture Co., Ltd., Wanda Media Co., Ltd. and Dongyang Xingrui Film and Television Culture Media Co., Ltd. The script of “Palace 3: the Lost Daughter” and the TV series “Palace 3: the Lost Daughter” corresponded to the Plaintiff’s work involved in character setting, character relations and plots. The script of “Palace 3: the Lost Daughter” was basically same as the Plaintiff’s work involved in aspects of overall plot arrangement and process of progression. The Plaintiff Chiung Yao instituted a lawsuit to No.3 Intermediate People’s Court of Beijing Municipality, alleging that the script of “Palace 3: the Lost Daughter” infringed her right of adaptation for the script and novel of “Meihualao”, and the shooting of the TV series “Palace 3: the Lost Daughter” infringed her right of shooting, and requiring the termination of the infringement, public apology and damages for loss.
Holding
No.3 Intermediate People’s Court of Beijing Municipality made the (2014) SZMCZ No. 07916 Civil Judgment on December 25, 2014, ruling that: I. Hunan eTV Culture Media Co., Ltd., Dongyang Huanyu Film and Television Culture Co., Ltd., Wanda Media Co., Ltd. and Dongyang Xingrui Film and Television Culture Media Co., Ltd. immediately cease the reproduction, distribution and dissemination of the TV series “Palace 3: the Lost Daughter” on the effective date of the Judgment; II. Yu Zheng make public apologetic statements at conspicuous positions of Sina.com, Sohu.com, LETV and ifeng.com to apologize to Chen Zhe and eliminate the influence (contents of the apologetic statement shall be submitted to the court within five days upon effectiveness of the Judgment for review, and in case of overdue performance, the court would publish the gist of this Judgment on the Legal Daily, with the necessary costs borne by Yu Zheng); III. Yu Zheng, Hunan eTV Culture Media Co., Ltd., Dongyang Huanyu Film and Television Culture Co., Ltd., Wanda Media Co., Ltd. and Dongyang Xingrui Film and Television Culture Media Co., Ltd. pay, jointly and severally, RMB 5,000,000 to compensate Chen Zhe for her economic losses and reasonable litigation costs within ten days upon effectiveness of the Judgment; IV. other claims by Chen Zhe be rejected. Yu Zheng et. al refused to accept the Judgment and appealed to Beijing High People’s Court, which made the following judgment: the appeal be dismissed and the original judgment upheld.
[Reasoning]
Beijing High People’s Court opined that:
I. The expressions in literary works protected by the copyright law
Idea-expression dichotomy is the basic principle to distinguish the protected and unprotected elements, whose essence is the copyright law protects expressions of ideas, instead of ideas per se. If the allegedly infringing work is substantially similar to the work of the right holder, it should be the expressions that are substantially similar. Expressions protectable under the copyright law refer to not only the finalized form of the text, colors, lines and other symbols, but also the content used to manifest the author’s ideas and emotions. However, creative ideas, source material, or public domain information as well as forms of creation, necessary scenes and sole or limited expressions are excluded from the scope of protection of the copyright law. Both scripts and novels are literary works, in which the boundary between ideas and expressions is difficult to delineate. Neither can expressions in literary works be limited to dialogues, wording and phrasing, nor can the theme, subject matter and ordinary character relations in literary works be identified as the expressions protected by the copyright law. Expressions of a literary work are not only manifested by literal expressions, but also the story told through literal expressions. However, the setting of and relations among characters and the plots consisting of the occurrence, development and sequence of specific events cannot constitute expressions protected by the copyright law until they reach that certain extent that the author’s unique choices, judgment and trade-off are reflected in the plot selection, structure arrangement and design of plot progression in a literary work.
In literary works, the tight and coherent connections and logistical sequence of plots from the beginning to the make the whole plot a complete and individual expression. The organic combination of such sufficiently specific character setting, plot structure and inherent logical relation may constitute expressions protected by the copyright law.
II. Way to judge infringement of the right of adaption
According to provisions of Item 14, Subclause 1 of Article 10 of the Copyright Law of the People's Republic of China, the right of adaption is the right to change the work, and create a new work with originality. Subject to provisions above, the acts under direct control of the right of adaption are those of adaptation, i.e. the acts to change the work and create a new work with originality. The new work shall retain basic expressions in the original work. Otherwise, the right of adaption does not control the new work created only on basis of the ideas of the original work. Unless otherwise specified by the law, unauthorized adaptation of the others’ original works constitutes an infringement upon the adaptation right of the original copyright holder. For the accused acts to be found infringing the right of adaption of the right holder, the two requirements of access and substantial similarity usually need to be both met.
Access means that the accused infringer has the chance to access, know about or experience the copyrighted works of the right holder. Access can be presumed. When disclosed by such means as publication, exhibition, broadcasting, performance and screening, the works of the right holder may be deemed as published and made accessible to the alleged infringer in normal circumstances of the society. Thus, access can be presumed. The broadcast of the TV series “Meihualao” may be deemed as the publication of the script of “Meihualao”. Therefore, it may be presumed that Yu Zheng, Hunan eTV Culture Media Co., Ltd., Dongyang Huanyu Film and Television Culture Co., Ltd., Wanda Media Co., Ltd. and Dongyang Xingrui Film and Television Culture Media Co., Ltd. accessed the script of “Meihualao”.
The copyright law protects expressions of ideas, instead of ideas per se. If the allegedly infringing work is substantially similar to the work of the right holder, it should be the expressions that are substantially similar. Expressions do not merely refer to the text, colors, lines, and symbols of the final form of a work. When the content of a work is used to manifest the author’s ideas 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 sole or limited expressions are excluded from the scope of protection of the copyright law. To judgment whether or not substantial similarity is justified, one shall first judge whether or not the elements claimed by copyright holder belong to expressions protected by the copyright law.
Both scripts and novels are literary works, in which the boundary between ideas and expressions is difficult to delineate. Neither can expressions in literary works be limited to dialogues, wording and phrasing, nor can the theme, subject matter and ordinary character relations in literary works be identified as the expressions protected by the copyright law. Expressions of a literary work are not only manifested by literal expressions, but also the story told through literal expressions. However, the setting of and relations among characters and the plots consisting of the occurrence, development and sequence of specific events cannot constitute expressions protected by the copyright law until they reach that certain extent that the authors’ unique choices, judgment and trade-off are reflected in the plot selection, structure arrangement and design of plot progression in a literary work. It is a process of abstracting and filtering to determine what are the protected expressions of a literary work. Comparison shall be made on expressions formed through combination and interaction of characters and plots when it comes to the character relations and setting. If both the sequence of events and interaction of characters originate from the prior copyrighted work, substantial similarity shall be justified. In literary works, plots are closely connected through successive scenes and logical sequence to form complete and individualized expressions. Such organic integration of sufficiently specific character setting, plot structure and inherent logical relations can become expressions protected by the copyright law. If the accused infringing work includes expressions which are specific enough, and such plot arrangements as running closely throughout the text reach a certain amount and portion in the alleged infringing work, substantial similarity shall be justified; or if such plot arrangements as running closely throughout the text of the accused infringing work account for a sufficient portion in the copyrighted work, substantial similarity shall be justified even if they only take a small portion in the accused infringing work, yet suffice to make the audiences feel like they originated from a certain work.
In addition, it needs to be clarified that, even though some specific plots in a work belong to the public domain or constitute limited or sole expressions, it does not mean that the organic combination of such plots and other plots are not original, or constitute expressions protected by the copyright law. Overall substantial similarity cannot be excluded by partial dissimilarity of plot.
In this Case, 9 out the 21 plots alleged by the Plaintiff Chiung Yao are expressions protected by the copyright law, are substantially similiar to the script of “Palace 3: the Lost Daughter”; the script of “Palace 3: the Lost Daughter” is also substantially similar to the character setting and relations alleged by the Plaintiff Chiung Yao; and on the whole, script of “Palace 3: the Lost Daughter” is substantially similar to the work involved.
