(By You Yunting) The other day Audi made an allegedly plagiarized advert at Grain Buds, one of the traditional Chinese solar terms, attracting public interest. I felt bad about this incident because the advert in dispute was shot with my favorite star Andy Liu. Today I would like to discuss whether Andy Liu is also responsible for the infringement if “Mr. Grain Buds from Peking University” takes an action.
First, let’s look at the case facts. May 21st is Grain Buds, one of the traditional Chinese solar terms. On that day Audi published the advert Live a Life Like Grain Buds endorsed by Andy Liu on several platforms, including douyin and weibo, which soon gained much popularity on the internet. “Mr. Grain Buds from Peking University”, a douyin blogger showed proof in a video that Audi made the advert by plagiarizing his writings. Audi apologized in public and removed the advert completely from the internet and Andy Liu also removed the advert video from his douyin account.
I. Who should be responsible for the infringement?
The short video shot with Andy Liu was a commercial ad made by Audi to promote its brand and products. In accordance with relevant provisions of the Advertising Law, those who shall bear legal responsibilities for the infringement arising from the short video may include:
1. Audi. As the owner and publisher of the advert, Audi is the first subject responsible for the infringement. Audi’s apology statement that “we sincerely apologized for the trouble caused by our lax supervision and examination to Mr. Andy Liu, ‘Mr. Grain Buds from Peking University’ and other related parties” might be intended to shirk responsibilities. They should undertake all legal responsibilities for the plagiarism, much more than responsibilities for supervision and examination of the advert.
2. M&C Saatchi. Audi alleged that M&C Saatchi, producer of the advert in dispute, made and implemented the advertising plan. As advertising agency, M&C Saatchi should be severally and jointly liable to “Mr. Grain Buds from Peking University” for the infringement. In addition, they should be liable to their client Audi for contract breach regarding their provision of the text of the advert in dispute.
3. Andy Liu. If an action is brought against all the three parties, Audi and M&C Saatchi will undoubtedly be held liable for the infringement and Andy Liu may not necessarily undertake any legal responsibility if he fulfills the duty to review the text carefully in advance. Next let’s discuss the legal position of Andy Liu in this case and what he needs to do.
II. In which event the advert endorser is entitled to exemption of liabilities in an intellectual property infringement case connected with the advert?
1. Why is Andy Liu the advert endorser?
The aim of Audi shooting the short video was to promote its brand and products. Andy Liu played the leading role in the video and recommended and endorsed Audi in his own name and image in the advert. Although he is not a professional racer, the customers’ trust in him as a star made him the advert endorser in the Chinese Advertising Law.
Chinese and US laws deal with this issue in the same way. In a case included in the Guide Concerning Use of Endorsements and Testimonials in Advertising by the US Federal Trade Commission, An infomercial for a home fitness system is anchored by a famous artist. Her statement would be an endorsement even if she is reading the script, because customers are very likely to think of it as the artist’s idea. This is same as Andy Liu in Audi’s advert at Grain Buds.
2. What does Andy Liu need to do?
a. Experience the products in advance.
For legal compliance he should experience first, acquaint himself with and then endorse the products. For example, before endorsing Audi cars, Andy Liu should have actually driven the car instead of driving it for only a few minutes, or substituting user experience from his relatives, friends, etc. It is crucial to gather evidence of the experience course. In case of product problems, the endorser can prove that they have experienced them.
b. Investigate the endorsed products and business
In this case Andy Liu’s team should conduct necessary background check of Audi and retain the check records of whether the entity is legal or involved in any legal action, administrative penalties and other negative information, whether Audi complies with quality standards and regulatory requirements, etc.
c. Check the text of the advert.
What should be reviewed include the legality of the draft, sample and scripts and the possibility of the text infringing others’ intellectual property rights. In this case, a poem adapted from Zeng Guofan’s dictum by “Mr. Grain Buds from Peking University” was plagiarized in Audi’s advert. If the poem can be found by typing texts in a search engine, the duty to review the text of the advert could be deemed as unfulfilled.
In my opinion, the poem was contained in the video and could not be found by typing texts in a search engine. Nevertheless, in this case, the advert owner and the advertising agency did not fully perform their duty to review the text beforehand. The plagiarized video of “Mr. Grain Buds from Peking University” was a popular work which received over 100 thousand “thumbs-up”. The plagiarized advert would not be published if more videos related to Grain Buds have been watched when reviewing the text beforehand.
d. Perform the obligation to cure the issue in a timely manner.
Endorsers should pay continuous attention to the endorsed business, products or services. If the endorsed business does seriously illegal or dishonest acts or the endorsed products or services have a serious quality or safety issue, the endorser should rescind the endorsement contract, make a personal statement or take other corrective measures after prompt check and assessment. Andy Liu performed the duty to cure the issue by promptly removing the video in dispute from his personal douyin account after identifying the plagiarism.
Finally, in accordance with Civil Law, Copyright Law and Advertising Law, unless the endorser writes the plagiarized text or refuses to remove the infringing content from their account, in most cases, the endorser is not responsible for intellectual property right infringement arising from anything contained in the advert. However, if the endorser does not completely go through the compliance process before the endorsement, they are more likely to endorse illegal brands. In some cases, they might be exempted from liabilities for infringement, but in case of brand fraud or customer complaint about a product quality issue, they will find it difficult to avoid liabilities.