How to Appropriately Deal with a Lawyer Letter- about Copyright

(By Xiong Leizhi) Some popular We Chat accounts recently received a lawyer letter about copyright infringement from a well-known picture library. Before that some We Media were sued for picture infringement. Content creators are in trouble since 2015 when capital flooded in and proceeds surged. In the circumstances where start-ups abound and the gross national attention remains constant, each start-up tries to attract customers quickly and keep their interest for a long time. However, it takes much time to create an original piece of content. As a result, increasingly more unauthorized copies of works appear. The above cases that recently happened arose out of infringement.

A lawyer letter usually says: “a. you have annoyed me; b. behave yourself; c. or you will have something unpleasant”. “You have annoyed me” is the most important part because it tells details about the infringement. Most lawyer letters received by We Media are copyright infringement claims, especially about written works, pictures, videos and audios. Whether a piece of content infringes another person’s work can be decided by taking three following factors into consideration.

1. Do you really have copyright to your work?

First, the Copyright Law only applies to “works” defined therein as “an original and reproducible copy of intellectual property in literature, art and scientific areas”. The implication of this definition is as follows:

1.1 As a kind of intellectual property it must be a creation of the mind.

A smart monkey took a photo itself using the camera it grabbed from a British photographer in Indonesia. When this photograph became popular, the photographer expected to receive a fortune of royalties, but many entities believed the copyright to that photo was in dispute and therefore refused to pay royalty for it. Even worse, the US Animal Protection Organization sued him, claiming all proceeds from that photo on behalf of the monkey. This case was closed in September this year, in which the court found that no animals including monkey which could take a photo itself, except humans could enjoy copyright. The result of this case would be different if it had happened in China, where no court would even process it.

1.2 Only original works may be copyrightable.

The standard of original works set by Chinese legal authorities is very low. Any work involving a person’s choice could be considered as original, except for ones like pictures automatically taken by a security check device at the airport or a subway station which are almost the same without showing any intellectual property.

1.3 No idea is copyrightable.

“Only expressions, not including ideas are copyrightable”. This provision obviously applies to clear “ideas” or “expressions”. For example, “revenge for being framed” is not copyrightable, but the novel Count of Monte Cristo is obviously copyrightable. However, it is difficult to identify a work between “ideas” and “expressions”. For example, in the Zhuang Yu vs Guo Jingming case and the Qiong Yao vs Yu Zheng case, both courts found that “the thread, plots and main characters” were copyrightable. In the Qiong Yao vs Yu Zheng case the court clarified the boundaries between “ideas” and “expressions” with examples. Abstraction and generalization really helps to find the boundaries between ideas and expressions. The title “Steal a Son” is obviously an idea. The sentence “The wife who hasn’t a son and lives under the pressure from concubines of her husband steals the son of someone else in order to keep herself in advantage over them” is also an idea in a literature work. However, the court further stated in its judgment that time, places, characters, causes, action, results and other details of a plot were expressions and copyrightable, not solely owned, limited or available to the public.

The above paragraph is written for We Media owners who hate and fight against the “manuscript laundering”, an illegal activity performed in the area between “ideas” and “expressions” to gain the “original” status. Most We Media could not usually get as many legal resources as that in the above case. Based on some judgments, it is advisable to establish clear and practical guidelines by working together with platforms.

2. Reproduction Right

Article Ten of the Copyright Law specifies sixteen copyrights including publication and authorship rights. For We Media it is most likely to infringe others’ reproduction and adaptation rights to writings and pictures.

Copying an original work is obviously an infringement. A new work formed by modifying part of a writing or a picture could infringe the adaptation right to the original writing or picture as long as the new work uses basically the same expressions as the original work. Lin Zhiying published on his Weibo a picture (Picture 1) formed by one of his fans using PS software in celebration of having more than 21 million Weibo fans. Zhu Qingfu, the creator of the original work Chinese Men (Picture 2) sued Lin Zhiying for copyright infringement in 2016. The court recently decided that Lin Zhiying infringed four copyrights including the adaptation right of Zhu Qingfu.

Picture 1

Picture 2

It does not mean no modification of prior works is allowed. The term “transformative use” in Copyright Law means adding new value and functions to a work by adding new content, concept and ideas to it. “Ironic imitation”, a form of art and literature creation means modifying an original work to the extent that the new work after such modification is obviously different from the original work, in order to produce ironic effect. When the film The Promise directed by Chen Kaige attracted a lot of criticism in 2005, Hu Ge, known as “the first person who sponges attention” made the video The Murder Caused by a Steamed Bread by combining clips of The Promise with other videos and new dialogues and became popular quickly for that video. As it was a satire on The Promise, Chen Kaige commented that “no men could be as shameless as him”, but did not take a legal action. If that case happened today, it would be a typical case of “transformative use”. “Ironic imitation” could really have negative effect on the original work creator and cause disputes. A good use of ironic imitation could cause a loss to the original work creator and make him/her unable to claim damages for the loss, but a bad use of ironic imitation could hurt the user him/herself. “Ironic imitation” is like a blow that hurts the attacker when hitting the opponent.

3. Fair use

The Copyright Law makes allowances for unauthorized and unpaid use of others’ works. Article 22 of the Copyright Law specifies twelve circumstances. The third through twelfth circumstances are for uses in public interests, and only the first two circumstances relate to We Media:

3.1 use of others’ published works for study, research or pleasure.

Note that the use for study and research is strictly restricted, in which case no commercial use or publication is allowed.

3.2 Use of others’ published works to introduce or comment on a work or explain an issue.

The use of a work, whether a piece of writing or a film, is necessary for introducing or commenting on the work, in which case copying the work is permissible.

Another circumstance is use of others’ works to explain an issue, not to comment on the works. For example, my use of Mr. Zhu Qingfu’s work in this article is to explain the adaptation right by indicating the names of the creator and the work could not be deemed as an infringement.

It is apparent that provisions of the Copyright Law, whether to protect or limit certain rights, are all for balancing owner rights and public interests with the ultimate aim to promote the overall development of literature and art. In specific cases, clarification of a) rights and defects in the rights of our/the opposing party and b) restrictions on exercising such rights can help the parties involved decide what to do next.

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