How to Judge the Copyright Holder of Cinematographic Work in China?

(By Luo Yanjie) In a previous infringement case against cinematographic we handled, the plaintiff submitted several articles of evidence to the court, which showed that the work belonged to different copyright holders: according to a certificate issued by the Hong Kong Copyright Center, it was Copyrighter A’s property while the subtitle authorship rights belonged to Copyrighter B. And yet, as demonstrated by a license agreement, C shall be the exclusive holder of the copyright. That made the plaintiff argue for his ownership of the copyright. In fact, due to the complexity in determining copyright ownership, contradictory disputes like the one described above are quite common in actual practice. In today’s post we will share our understanding of the issue.

I. Laws on Copyright for Cinematographic Works

Regarding copyright ownership of cinematographic works, Article 15 of China’s Copyright Law provides specific regulation:

“The copyright in a cinematographic work and any work created by an analogous method of film production shall be enjoyed by the producer of the work, but the scriptwriter, director, cameraman, lyricist, composer, and other authors thereof shall enjoy the right of authorship in the work, and have the right to receive remuneration pursuant to the contract concluded with the producer.”

Moreover, for ownership of the copyright, it is provided in the Copyright Law that:

“The citizen, legal entity, or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.”

II. Difficulties in the determination of the copyright holder of cinematographic works

It could be concluded from the above regulations that the copyright holder of the cinematographic work shall be the “producer,” who shall be decided by the name mentioned in the copyrighted work. But, such a seemingly clear way of making this determination in fact appears to be rather vague for the complicated procedure of actual filmmaking. Indeed, this has made the actual determination of ownership of a cinematographic work’s copyright quite difficult. The most common disputes or misunderstandings are typically the following:

1. Is the legal producer not the “movie producer” indicated in the film?

In cinematographic work, we can always see the “movie producer” in the cast, but it has to be clarified that such a movie producer is not the “producer” in the framework of the Copyright Law, for it is stipulated in the Management Regulations of Films:

“The film production unit shall own the copyright of the film filmed by it.”

Therefore, the “producer” in the Copyright Law shall be the filmmaking unit, much like the Shanghai Film Production Company and Changchun Film Production Company of the past and the currently renowned Hua Yi Brothers Film Production Company.

2. Is the producer necessarily the copyright holder?

Since copyright is a kind of private right, the “producer,” namely the original copyright owner of the cinematographic work, may transfer his/her right to any other third party or confirm the copyright of the work to be another’s proprietary right at the beginning of the shooting of the film. In other words, the production manager or production unit mentioned in the film may have no legal copyright over the work whatsoever.

3. Different authorship in the same work

For the authorship of the cinematographic work, the authorship of the same work may indicate different authors in different situations. For example, at the beginning of the film, we usually see the authorship of “XX Film Company,” but the production unit owning the copyright is “Company AA” as shown in the final credits at the end of the work.

4. The release license could not be adopted as the direct evidence to the right ownership.

In past judicial practice, some local courts in China have held the holder of a public performance license or television drama publication license to be the rightful copyright holder.. In fact, the above licenses only show the production units have the met the qualifications for film making, that the film’s contents comply with the laws or regulations, and that the film may legally be released or broadcast to the public. But, it cannot be regarded as legal evidence of copyright ownership. For this reason, a public performance license cannot be considered direct evidence of copyright ownership, but only as collateral evidence of property ownership.

III. The way to determine rights in practice

Despite the aforesaid difficulties, in practice, the court will demand both parties to submit evidence, and thereby decide the issue of property ownership based on such documents. The judge’s typical method of determination is as follows:

1. The copyright certificate is the key evidence to property ownership

When no clear producer or copyright holder is indicated in the film, and if the plaintiff has previously registered the work, such registration can be considered the most crucial piece of evidence to the question of ownership and can demonstrate ownership, provided there is no contradicting evidence submitted. By experience and practice, copyright registration is normally undertaken after the publication of a film. As a corollary, the authorship in the film may be a person different from that associated with the copyright registration. And generally, it shall subject to the record in the registration certificate.

2.  The indication of “copyright owner” is stronger evidence than that of “producer”

As has been described above, although by law the producer is the lawful rights holder, his/her right could be transferred to any third party once the film begins shooting. Therefore, when the work has the mark “produced by XX Film Company” and also has the mark “copyright belonging to,” the ownership shall be subject to the record of the “copyright owner” mark, in the author’s opinion.

3. Judging similar cases based on earlier decided cases

In practice, the facts determined in earlier decided cases can be used as evidence in later cases. Because one film may claim protection against several infringements, once rights ownership has been set in the first decisions, latter cases can be judged following the initial decision. On the contrary, because most rights claims are made by intellectual property agencies as entrusted by the right holder, once such licenses or entrustments have been made to several subjects, the latter agency or agencies may actually have no further rights. This gives the infringer the opportunity to evade legal liability. When evidence can be found in the case of different rights ownership than that of the first decision, the rights enjoyable by the plaintiffs in the later cases may be overturned.

4. To judge ownership with other evidences

Despite the above ways of determining rights ownership, the right shall be determined based on the consideration of all evidence, such as whether there are copyright transfer contracts, exclusive license contracts, and etc. In copyright ownership cases, the court should control the extent of the hearing, in order to neither make rights protection more difficult nor lead to an abuse use of the right.

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