(By Luo Yanjie) It is common in China that a jewelry of the same design would be manufactured and sold by different jewelry shops in the industry of China’s jewelry. With regard to the initial source of the jewelry design, a lot jewelry companies and even consumers are not concerned whoever firstly designs the jewelry. In reality, a well-designed jewelry that took designers a great intelligence shall be protected by the Copyright Law. In today’s post, we will introduce a case where a jewelry design is succeed to be protected by the Copyright Law, sharing with readers.
Introduction to the Case:
Plaintiff: Shenzhen Tongtaifu Jewelry Co., ltd (the “TTF”)
Defendant: Guangzhou Xideer Jewelry Co., Ltd (the “XDE”)
Court of first instance: Yuexiu District People’s Court
The TTF is renowned to be a local jewelry brand in Shenzhen with international influence power. In 2012, the TTF hosted the Zodiac Year of the Snake Jewelry Design Exhibition 2013. The “Victory’s V”, a wining works, was published through TTF’s official website and Weibo on November 4, 2012 and was authorized to enjoy the copyright of the “Victory’s V” (the “reference works”, showing at the right). On December 8, 2012, the XDE launched its new jewelry called “俏灵蛇” (the “disputed works”, showing at the left), constituting its 12 Zodiacs, through its official Weibo and Tmall shop. Afterwards, the TTF found that the disputed works was highly similar to its reference works. Therefore, the TTF thought XDE constituting copyright infringement against its reference works and then brought the DXE to the court in requiring the XDE to immediately cease the infringement and make compensation of 50,0000 RMB.
Yuexiu District People’s Court heard the case and held that the disputed works manufactured and sold by the XDE shall plagiarize and copy the copyrighted reference works. Therefore, Yuexiu District People’s Court judged that the XDE shall immediately cease manufacturing and selling the disputed works, which infringed the copyright of the reference works, and compensate 150,000 RMB to the TTF in ten days.
- The Jewelry itself can be protected as works of fine arts under the Copyright Law but in the Amendment of the Copyright Law (Manuscript), it is more appropriate that the jewelry can be protected as works of applied art
Pursuant to the Copyright Law and related judicial interpretations, there is no clear provision about whether the jewelry can be protected under the Copyright Law. Even so, the jewelry has such major characters as imparting appreciation and aesthetic effect, consistent with the features of the object as regulated in the Copyright Law. Pursuant to the Implementing Regulations of the Copyright Law, the “Works of fine art” refer to two-dimensional or three-dimensional works created in lines, colors or other media which, when being viewed, impart aesthetic effect, such as works of painting, calligraphy and sculpture. Thus it can be appropriate that the jewelry of certain design shall be categorized into the works of fine art. Since it is considering that the jewelry belongs to works of fine art, this is undoubtedly logical that the court decided the defendant of copyright infringement.
As though the jewelry can be protected as works of fine art in current legislation, it is still quite different between the practical products and the works of fine art. However, fortunately, the Amendment of the Copyright Law (Manuscript) has regulated an independent works, clearer putting the products similar to the jewelry into the protection scope of the Copyright Law, i.e., “Works of applied art refer to two-dimensional or three-dimensional works which impart practical functions, and aesthetic effect, such as toys, furniture and decorations”. Therefore, in the future, the jewelry with the sense of aesthetic design can be protected under the full range of clear legislations.
- The design drawing of the jewelry can be protected as graphic works in the Copyright Law but only an original jewelry itself can be under the protection of the Copyright Law.
It should be clear that, the afore-mentioned stating that the jewelry belongs to the works of fine art is on condition that the jewelry shall be imparted aesthetic effect and designing elements. If a jewelry has a simple design, such as the common necklace, the aesthetic effect of the jewelry comes from the materials of the jewelry itself, not the jewelry design, and thus the jewelry shall not be original far from the protection of the Copyright Law.
However, under the condition that the jewelry is not original, it does not mean that the design drawing of the jewelry is not original. Since the Graphic works refer to drawings of engineering designs and product designs for the purpose of actual construction or manufacture, and maps and sketches showing geographic phenomena and demonstrating the fundamentals or structure of a thing or an object pursuant to the Implementing Regulations of the Copyright Law, the laws do not require the graphic works imparting aesthetic effect. However, comparatively speaking, the Implementing Regulations of the Copyright Law is designed to protect the works itself from being copied by others, rather than extending the protection of the jewelry. For example, in today’s case, if the plaintiff published the design drawing of the jewelry which does not have too many design elements, copying the design drawing of the jewelry shall constitute copyright infringement but using the design drawing to manufacture the jewelry may not constitute copyright infringement.