The Guangzhou Higher Court recently issued a decision on a copyright dispute between CHA LiangYong and YangZhi. The case, which has attracted attention, is the first “fanfic” copyright litigation in China.
Basic facts
CHA Leung-Yung (Pen Name: JIN Yong; English name: Louis Cha) is renowned as the "Master of Martial Arts Fiction" in China. His Kung Fu novels ("Legend of the Condor Heroes", "Return of the Condor Heroes", "Heavenly Sword and Dragon Saber" and “Dragon oath”) are set in ancient China and explore themes of loyalty, honor, and the pursuit of justice.
The disputed novel tells stories of college students in modern life, but the author adopted the same character names (e.g. GUO Jing, HUANG Rong, QIAO Feng, LING HU Chong, etc.) as heroes from Jin Yong’ s Kung Fu novels, and the character relations are nearly the same. The author also used the subtitle “the college life of the Condor Heroes”.
First instance Court decision
At first instance the Court held that the unauthorized use of the same character names and relations taken from the plaintiff’s works constituted unfair competition.
The defendants were ordered to immediately cease the unfair competition, halt publication of the disputed novel, and destroy existing stocks. They were also ordered to publish a prominent statement in the media apologizing to the successful plaintiff. Substantial compensation and costs adding up to more than RMB 200,000 (approx. USD 27,500) were ordered to be paid by the defendants.
Higher Court Decision
Both parties appealed. Upon further examination, the higher court founds more than sixty characters in the disputed novel used the same name and characteristics as those in Jin Yong’ s novels. Based on its findings, the higher court confirmed copyright infringement. However, regarding the first instance order to cease publication and destroy existing stocks, the higher court stated that the interests of the plaintiff and the various defendants needed to be balanced. So, instead of affirming these orders, it decided the defendants should pay economic compensation to the plaintiff at a rate equal to 30% of a stipulated royalty income.
Comment
Fantasy literature is valuable source material for TV programs, movies and computer games. Protection of such literature and characters has become vital to companies operating in the cultural and creative industries. Although copyright law can provide some protection, this is narrow in scope and only really prevents straight copying, which the court found in this case. But, generally, the registration of book titles, character names and character images as trade marks may provide a far greater level of protection, particularly in the context of commercialization, such as franchising and character merchandising.
A lesson can be drawn from the Harry Potter series of books. The author, J. K. Rowling, sold film rights to Warner Bros. in 1999 and eight HARRY POTTER motion picture films ensued. Warner Bros. embarked on an aggressive trade mark registration program to protect its investment and registered character names, such as HARRY POTTER, Hermione Granger, Ron Weasley, DUMBLEDORE, and the film titles in a wide range of classes. The rights conferred by these trade mark registrations allowed Warner Bros. to secure its ownership of the HARRY POTTER name and related brands and created the legal platform for its immensely important commercialization activities.
