(By Lv Xuanxuan and Sun Yinuo) Back in September 2020, Beijing Internet Court published “Rules on Hearing and Deciding Internet Portrait Right Cases” (“Rules”) stating that unauthorized use of a person’s portrait in an advertorial should be deemed as infringement; unauthorized use of a recognizable portrait should be deemed as infringement; the popularity of the person in the portrait is important to calculate the amount of damages; false endorsement will result in more liabilities; and legal and reasonable use of portraits should not be deemed as infringement. According to statistics, the number of portrait right infringement cases, mostly connected with portraits of well-known public figures, especially celebrities in areas of entertainment, ranked immediately below the number of internet copyright infringement cases. Infringement of portrait right of “performers” in areas of entertainment is common. This article gives performers some advice on how to protect their rights in internet portrait right infringement cases to help them claim rights in an appropriate way and seek reasonable and effective remedies.
(By Gao Shaoyi, Li Rong)Online education is becoming increasingly more important to educational and training industries due to the impact of Covid-19. Online education platforms provide various educational services including course video recording, live online teaching, personalized teaching and instructing, test question searching, work assessment, etc., which to some extent reduce the effect of suspension of on-campus classes on teachers and students. There are many online education platform developers and a lot of online education platform software products launched. Some software brands are copied from others. Therefore, for online education platform software developers, giving a protection for intellectual property rights in their online education platforms in all respects is the only way to gain more core competitive advantages and succeed in today’s market.
There is a widespread distrust in high tech companies around the world since the scandal of the Cambridge Analytic information of Bookface broke out. A user agreement for ZAO, a Chinese-made app for changing human face images in videos became a hot issue on the internet the other day because of its provision that no person can use the app without giving the right to use their face images permanently. Many people thought that the app developer Changsha SHEER Network Technology Inc. (“ZAO Company”) infringed the user’s portrait right and privacy.
(By Ni Tinggang) Beijing Internet Court recently closed a case arising from the right to transmit information on the internet, in which the defendant Shenzhen Shushu Technology Co., Ltd. (“Defendant”) transmitted a continuous series of pictures from the TV series Three Lives and Three Worlds Woven Together by Secrets (“Episodes in Dispute”) by using the method of “explaining a movie with pictures”, infringing the right to transmit on the internet proprietary information of the plaintiff Youku Network Technology (Beijing) Co., Ltd. (“Plaintiff”). The court decided the identity of the infringing person and the exclusion of reasonable use for good reasons. However, I have noticed that the type of works in question and the plaintiff’s eligibility decided by the court is questionable and worth discussion.
Alibaba recently published a new type of fonts known as “Alibaba Puhui” and announced that its customers and people around the world are authorized to use the fonts for free. Actually, there are many legal risks in use of fonts. Let me tell you how to avoid or reduce these legal risks.
1.You can only use Alibaba Puhui fonts and cannot change them.
The legal statement on the platform of Alibaba fonts has made it clear that the fonts are free and can be used for commercial purposes but cannot be used by violating a law or published without due authorization. More importantly, Alibaba hasn’t given users the right to modify the fonts, unlike Siyuan fonts, another type of free open source fonts. The above legal statement is as follows.
Article Fourteen of the Rules on Protection of the Right to Disseminate Information on the Internet provides that “a person may send a written notice requiring providers of storage space, searches, links and other internet services relating to a work, performance or audio or video product that the person believes infringes their right to disseminate information on the internet or causes their electronic information about management of their rights to be removed or changed remove or invalidate links to the work, performance or audio or video product”. Articles 22 and 23 of the Rules further provide that storage space, search, link and other internet services providers who have performed the removal obligations under the notice from the information owner do not need to pay compensation.
(By Xiong Leizhi) Some popular We Chat accounts recently received a lawyer letter about copyright infringement from a well-known picture library. Before that some We Media were sued for picture infringement. Content creators are in trouble since 2015 when capital flooded in and proceeds surged. In the circumstances where start-ups abound and the gross national attention remains constant, each start-up tries to attract customers quickly and keep their interest for a long time. However, it takes much time to create an original piece of content. As a result, increasingly more unauthorized copies of works appear. The above cases that recently happened arose out of infringement.
(By Ning Tinggang) Beijing Intellectual Property Court recently introduced some movie, TV series, music, animation and game related cases it heard in 2015 and 2016 via its public WeChat platform, including the trademark “Kuroko Basketball” invalidity case which inspired me. The way that the court dealt with this case shows a new trend of protecting merchandizing interests which we legal professionals should pay attention to.
Kuroko Basketball is a popular comic work about basketball created by ふじまき ただとし, a Japanese comics artist. The work was serialized on the magazine SHONEN JUMP published by Shueisha since the second issue in 2009, and then was adapted for an animation and first broadcast on 7th April 2012. The plaintiff, SL Sport Ltd. in Kaiping (“SL Company”), filed a trademark-register application to the trademark office on 19th July 2012. As approved, this trademark (“Disputed Trademark”) should be used under Class 25. In addition, SL Company registered tens of trademarks closely connected with popular comics works such as Kuroko Basketball and SLAM DUNK that Shueisha had published, including trademarks used under Class 18, 24, 25, 35 and other types of commodities or services. Thus, Shueisha filed a request for declaration of invalidity of the Disputed Trademark.
（By Albert Chen）Last year Beijing Intellectual Property Tribunal dealt with an infringement case involving a QQ group and made the same decision as the first-trial court that the group’s administrator should be responsible for the infringement, but with different reasons. Detailed analysis of differences in the reasons for decision given by the two courts will help you answer the question of whether the group administrator should be brought to account for direct or indirect infringement.
(By You Yunting) Some users of ZHIHU.com (One of the most well-organized community for sharing knowledges online) asked: Would the network host infringe any right while singing at his or her own live-show room? If one host receives the user contributions from the audiences for his or her singing at such live-broadcast room, would such behavior infringe any right? Here come my answers:
The biggest problem of the hosts’ singing at their own live-show rooms is not about whether such behaviors infringe any right or not. Instead, the right holders of such songs have tremendous difficulties in protecting their rights.
(By Yu Zhiyuan) I recently represented a client who was finally the winning party to a typical franchise dispute case, from which we can learn most legal risks possibly facing franchisors and franchisees during their performance of franchise business as well as operational standards and risk control measures for businesses in the brand chain industry.
- Case Facts
In this case, the franchiser, owner of a well-known early childhood education brand, entered into a franchise agreement with each franchisee to perform franchise activities as a chain store dealing in the franchiser’s brand. As mutually agreed, in addition to one-off franchise fees and deposits, each franchisee should pay royalty fees in advance before each royalty year begins, and if there is any overdue payment of royalty fees, penalties.
(By You Yunting) I was once asked by a journalist what the foundation of intellectual property courts and the ratification of the Opinions on Quicker Development of the Globally Influential Scientific and Technological Innovation Center matter to small and medium-sized startups, and replied the outcome of those two events were the same, both of which ultimately aimed to enhance the awareness of intellectual property throughout our society and guide small and medium-sized enterprises to establish a competition barrier and a management philosopher on how to avoid infringing others’ intellectual property rights. As governmental authorities define and set official instructions and policies, each startup should take full use of its intellectual property during daily operation, trying to become positioned to succeed, just like a well-known Chinese aphorism says that even the pig can fly when the typhoon comes. Combined with my experiences, this article mainly deals with the issue of how small and medium-sized startups seek intellectual property protection both internally and externally.
Recently, DeBund takes a big step forward in providing mobile internet legal services that You Yunting Team, on behalf of clients, succeeds in pulling a popular game from the AppStore by more than 10 lawyer’s letters.
The Developer of the complained game copied large amounts of background elements of a well-known game, including graphic design, plots, role names and geographic names, and also used the brand of the original game. The Developer also made a cartoon modeling on the game characters, and did a slight change to the game name, not exactly the same as the original game. The infringed benefits greatly from the complained game to millions of yuan every month.
(By You Yunting) A game guide, also known as game strategy guide, is an essential reference for players. Generally, a game guide may quote pictures and screens from the game itself. But if without authorization, it triggers questions whether this quotation causes copyright infringement. In the following, a similar case will be introduced.
Introduction to the Case:
Plaintiff: Shanghai Aurogon Information and Technology Co., Ltd (the “Aurogon”)
1st Defendant: China Zhongdian Media Co., Ltd (the “ZD Media”)
(By You Yunting) Introduction to the Case:
Plaintiff: Shenzhen Qvod Technology Co., Ltd (the “Qvod”)
Defendant: Market Supervision Administration of Shenzhen Municipality (the “MSA”)
Court of first instance: Shenzhen Intermediate People’s Court
The MSA filed a case with the Shenzhen Intermediate People’s Court, and claimed to cancel the punitive fine of RMB 260 million from the MSA. On 30th of December 2014, the Shenzhen Intermediate People’s Court held the trial as the case is still on that trial.