(By Albert Chen) Recently, the Beijing Xicheng People’s Court made its decision on the dispute over copyright ownership of Beijing Love Story (“Story”) between Li Yaling and Chen Sichen, confirming that the Story was a cooperative work and that Li held copyright rights over it. After the Court’s decision, Li stated she would take the lawsuit a step further to invalidate the copyright transfer contract made unilaterally by Chen.
Although the author has certainly not seen the contents of the verdict, and the outlook on Li’s appeal to have the contract invalidated is pessimistic, to some extent, Li has already fulfilled her rights protection goals. At the same time, this case also serves as a reminder for other creators of TV series to pay more attention to copyright ownership and protection.
So, why was the Story determined to be a joint work? Furthermore, why would Li not be able to stop the unilateral exercise of the work by Chen? The following is the response the author provided when dispute began:
The Story is is a popular TV drama, which has also become a hot topic of social discussion. The discussion was triggered by a dispute over which of the Story’s two editors, Li and Chen, have ownership over its copyright. Chen stated that he was the sole copyright holder and had the right to unilaterally have a movie made based on the Show. The other editor, Li, stated that not only would such an action require her consent, but she would also need to be paid remuneration. As the dispute escalated, both parties began to seek legal resolution.
What copyright issues are involved in this dispute? The following essay contains the author’s answers.
I. Is the Story a cooperative work?
As disclosed by Chen’s attorney, Chen finished the first ten episodes of the Story in October of 2009. In November of that year, Chen licensed Li to continue to write and adapt the series. Could a work created through this kind of method be considered a cooperative work?
By the general theory of copyright law, a work separately created by two authors must meet one of the two following conditions to become a cooperative work:
- There is a consensus with the co-author on the creation, and the work is written on such a consensus with each party having his/her duty.
- Some authors’ are creating his/her part with the awareness that his/her part shall be combined with those created by others as a whole work, just like the lyrics, melody, and instrumentation of a song.
Based on the facts already disclosed, it is clear that Chen had no contact with Li when he started the creation of the Story; therefore, condition one cannot be applied. Yet, seeing that Chen licensed Li to do the continued writing and adaption and in view of the fact that the TV series for the Story was shot on Li’s finished work, it is reasonable to conclude that the creation by Chen and Li satisfies condition two. So, for this reason, the Story is a cooperative work, which could explain the current registration of copyright.
II. The exercise of rights over cooperative work
According to the Copyright Law and its enforcing regulation, unless the work can be used separately, any use of the work shall be on the approval from all the authors. When no consensus can be reached, and a party does not provide a solid reason for its refusal, the remaining parties may exercise all of the rights of the copyright except for transfer. When doing so, however, all gains from the exercise shall be shared among the co-authors.
So, because the Story can be judged as a cooperative work, any film adaptation of it requires the approval of both Chen and Li. If one party refuses such use without a solid argument, however, the other side could license the Story to shoot the film so long as the personal rights of the other copyright holder are respected and remuneration is paid. That is to say, unless Li has a strong argument to prevent the adaptation, Chen is entitled to license and adapt the Story to make a film.
III. The Story could also be the derivative work
Despite the above analysis that the Story is a cooperative work, it does not rule out the possibility that the Story is also a derivative work.
The fundamental creation by Li is from the first ten episodes by Chen, and these ten episodes are long enough to make an idea into an expression, or at least a preliminary expression. So, long as the episodes were created exclusive by Chen and meet the minimum level of creativeness, they could be considered works under the Copyright Law. In such a situation, Li’s creations subsequent to Chen’s work would be the creation of a new derivative work by law, which absorbed the original expressions of Chen’s work. The author of the derivative work is Li while Chen is only the author of the original work.
By the way, although the current registration is in both Chen and Li’s name, the registration primarily serves the purpose of publicity, and it can be cancelled by a different judgment on the ownership of the copyright. That means that when any difference between the registration and the ownership of the rights arises, the factual ownership situation shall prevail.
If the Story were decided to be a derivative work, Chen would only be the writer of the original work, and his licensing of the derivative would surely be an infringement of Li’s rights.
Currently, the dispute over the Story has not been brought to the court, and not much information is currently available. So, the above conclusions are only deductions based on the known facts. Will the dispute stay on the top line of the news? The author personally hopes not because, after all, a good work gains its reputation through its content and not its disputes.