By Albert Chen
The popular online game Kingdoms Kill introduced Sun Yang and Ye Shiwen, the gold medal swimmer of China, as its game character with the upsurge of the recent closed international games. As stated by Bianfeng Company, the operator of the game, such virtualized figures would be withdrawn after August. Yet, on the other side, Ye’s father claimed they have make no license to Bianfeng on that game development. After reading the news, a question came up with me: is that infringing the rights of Sun and Ye? The following is my analysis:
1. right of name
With the consideration that Sun Yang and Ye Shiwen is not the rare-use name, and “the same name” is common for a country with billions people. Therefore, it’s foreseeable of Bianfeng to take the same name as its defense. And to further regard the different likeness of the characters and the swimmers, and few possibility for the public to associate them, Bianfeng’s defense seems to be solid and sound.
Yet, I bear a different opinion. The “same name” could only argue when in a right time. As introduced before, the figures appeared during the Olympics and will be cancelled after this month. Therefore, the link or direct from the figure is apparent, and logically it could be deducted the name used in the game is those of the gold medal athletes.
As provided in Article 99 of General Principles of Civil Law,
“Citizens shall enjoy the right of personal name and shall be entitled to determine, use or change their personal names in accordance with relevant provisions. Interference with, usurpation of and false representation of personal names shall be prohibited.”
The prohibitive clauses apply to individual, entity and other organizations. Since there has shown up few evidences to Sun or Yang’s license to the game developer, as well as the profit earning nature of the game, the name using could constitute the infringement against the right of name.
For the understanding of the infringement, another judged case could be your reference. The famous Chinese artist Wu Guangzhong filed a lawsuit against an auction shop in Shanghai for the shop steal Wu’s name on a work by others. Although Wu chose the copyright infringement as his claim in the case and the court judged to support him at the end, the academic has been arguing over the sentence for someone say the work was not created by Wu and therefore it could has no way for him to be infringed on copyright. Despite the argument, we also notice the consensus among them the unlicensed using of Wu’s name could be an infringement against his name right. Likewise, it shall also be applicable to the case of Sun and Ye.
The copyright could not protect the game method, but the design of its gaming model and characters could be the art works in law. As checked, the copyright of Kingdom Kills belong to Beijing Yoka Games, who licensed Bianfeng to develop the PC version of the game.
In this instance, once Bianfeng was only licensed the right of development, excluding the adaption right, since many users have complained about the quality influence to the game with the introduction of the new characters. That is to say the adaption by Bianfeng has distorted the original work, and could result in the damage to the right of integrity of the game. By the way, the new figure could not infringes the right of adaption to the game in the same time, for the adaption could only be made on the original designs while Sun and Yang are the new elements added up to the game.
By some rumors, one of Yoka’s shareholders is Shanda, who also used to be the parent company of Bianfeng before selling it to Zhejiang News Group, therefore, whether Yoka would endure that kind of infringement, only time could prove it.
In conclusion, the free-riding by Bianfeng is risky of infringement against the right of name and copyright. But in our opinion, as one of the leading companies in the industry, Bianfeng may take it as kind of market survey for the possibility to introduce big names in its games in the future.
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