By Albert Chen
The popular TV drama Beijing Love Story (the “Story”) has become the hot topic of social discussion. The discussion was triggered about with whom the copyright ownership of the story resides, on which both editors Chen Sicheng and Li Yaling claimed the right over it. Chen planned to shoot a film of the Story which Li was against, with the reason that any licenses of the works shall have to go through her approval and that she will have to be paid remuneration. With the escalation of the dispute, both parties seek the settlement through legal ways.
Then what copyright issues have been involved in the issue? Through this essay, you may have my answers.
I. Is the Story a joint work?
As disclosed by Chen’s attorney, the first 10 episodes of the Story drama were finished by Chen in October of 2009, and later adapted and continued to be written by Li on his license from November of that year. Then could this creation lead to a joint authorship?
By the general theory of the copyright law, a work separately created by two authors could be joint work once one of the following conditions is met:
- 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 such disclosed facts, we could conclude that Chen has no contact with Li when he started the creation of the Story, therefore the above condition 1 could not be applied. Yet, allowing the continued writing and adaption by Li as licensed by Chen, and the fact that the TV drama was shot on Li’s finished work, it’s reasonable to conclude that the creation by Chen and Li is under the above condition 2. So for this reason, the Story is still a joint work which could explain the current registration of copyright.
II. The right exercise of the joint work
According to Copyright Law and its enforcement 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 no solid reason for refusing a party is given, the remaining parties may exercise the rights of the copyright excluding its transfer, but they shall share the gains from exercising such with other co-authors.
So, since the Story could be judged as a joint work, any adaptation of it shall be approved by Chen and Li in general. However, when one party refuses such use without a solid argument, the other side could shoot the film so long as the personal right’s of the other copyrighter is respected and the remuneration is paid. That is to say, unless Li has a strong argument to prevent the adaptation, Chen shall be entitled to shoot it a film.
III. The Story could also be the derivative work
Despite the above analysis, there is a chance that the Story is 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. When the episodes are created by Chen exclusively and can meet the minimum level of creativeness, they could be considered works under copyright law. In such a situation, Li’s creations subsequent to the works of Chen shall be the creation of a derivative work by law, with the original expressions of Chen’s remaining and absorbed. The author of the derivative work is Li and Chen is only the author of the original one.
By the way, although the current registration is in both Chen and Li’s name, the registration is more of a publicity purpose, which could be cancelled by a different judgment of the ownership of the copyright. That means when any difference between the registration and the ownership of the rights arises, the facts shall prevail.
If the Story could be decided a derivative work, Chen shall be the writer of the original work, and his license of the derivative will surely be an infringement to the right of Li.
Currently, the Story dispute has not been brought to the court and so far no more information is available, so the above conclusions are only a deduction of the known facts. Shall the disputes stay on the top line of the news? Personally, I hope not, after all, a good work gains its reputation through its content and not its disputes.
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