On December 25, 2014, Beijing No.3 Intermediate Court issued a ruling in Chiung Yao v. Yu Zheng, Wanda Media Co., Ltd (“Wanda Inc.”), Hunan eTV Culture MediaCo., Ltd. (“Hunan eTV Inc.”) etc., ruling that the defendants jointly infringed the copyrighted work "Plum Blossom Scar (梅花烙)"of Chiung Yao, awarding 5 million RMB damages and a permanent injunction against the infringing TV series "Palace 3: The Lost Daughter (宫锁连城)"[1].
I Background of the Litigation
- Chiung Yao and her copyrighted novel and script
Chiung Yao is the most popular Chinese romance novelist. Many of her works have been made and remade into movies and TV series, and she has many fans in Mainland China. In this case, she asserted copyright infringement of the following two pieces of work:
The script of the TV series: Plum Blossom Scar, created in 1992 and aired in 1993;
The novel: Plum Blossom Scar, created and published in 1993.
It is largely not disputed that the novel and the script tell substantially the same story. - Yu Zheng’s accused TV Series
Yu Zheng is a famous Chinese script writer. He is noted for Palace, which earned him the award of Best Writing at the 16th Asian Television Awards.
In April 2014, after Yu Zheng's new TV series production, Palace 3: The Lost Daughter, had been aired on a few local cable TV stations, Chiung Yao sued Yu Zheng for copyright infringement, and asked for (1) 20 million RMB damages; (2) permanent injunction; and (3) a public apology. Wanda Inc. (the Chinese company that had recently purchased the AMC cinema chain) had invested in the TV series at issue and three studios collectively produced the series. Thus, Chiung Yao also sued the investor and the studios, seeking joint liability.
When the suit was initially brought in April 2014, the public seemed to favor Chiung Yao. For example, one widely circulated news report said that this was not the first time Yu Zheng was accused of plagiarism. Wikipedia also gives details of allegations of plagiarism against Yu Zheng.
II Court’s Reasoning and Ruling - Legal standards
(1) Idea/expression dichotomy: special experience test
Generally speaking, copyright law protects the expression of an idea, but copyright does not protect the original idea. This limitation is called the idea–expression dichotomy.
Sometimes it is a challenge to draw a clear line between an idea and expression. In this case, the Beijing Court establishes a “source-identifying special experience test”, holding:
A plot in a story might be either summarized as an abstract idea, or be presented as a specific expression. Thus, a plot itself still could be further distinguished as an idea or an expression. To distinguish between an idea and an expression, one shall look at whether the plot in question is abstract and general, or specific to the extent that it gives a special aesthetic experience that is sufficient to identify the source of the work. If the plot is specific to such an extent, it can be considered as an expression.
(2) Two-prong test for infringing the right to make a derivative work: access + relevance
In deciding infringement, the Beijing Court adopts a two-prong test that is similar to U.S. courts.
First, it is assumed that the defendant had access to the plaintiff’s copyrighted works published in 1993.
Second, the court found there was relevance between the accused work and the plaintiff's work. After finding substantial similarity between the two parties’ works, the court concluded that such similarity was sufficient to prove that the accused work was a derivative work of the plaintiff's work. In other words, the accused work came from the plaintiff's work. - Infringement analysis
Applying the above-mentioned “special experience test”, the court compared the accused TV series “Palace 3” with the plaintiff’s work in three aspects: characters, plots and overall storylines.
(1) Overall Storyline
To give readers some clues about the story presented in both parties’ works, we summarize the storyline shared by both works as follows.
At the birthday celebration ceremony of a royal king, a beautiful girl was presented to the king as a gift. This created a crisis for the wife of the king, who had given birth to three girls, but no boys. Shortly after the birthday celebration, the wife gave birth to the fourth girl. Out of the fear of losing her status in the royal family, she accepted the suggestion of her servant and replaced the newly born girl with a baby boy from another family. Her baby girl was abandoned beside a creek, and a mark of a plum blossom was imprinted on her shoulder so that the mother could identify her in future. (In the accused Palace 3, a red mark was imprinted on the abandoned girl’s shoulder).
When the boy grew up as a prince, he met the abandoned princess accidentally, and saved her from a horrible situation. They immediately fell in love. However, at the order of the emperor, the prince was granted a marriage, and had an official wife. This created a complicated love triangle among the fake prince, his assigned wife, and his concubine (the abandoned princess). Through the context and interactions among the emperor, the king, the prince, his official wife, and the abandoned princess, etc., the story was further driven by two factors: truth about the births of the abandoned princess and the fake prince, and the official wife’s jealousy of the abandoned princess.
The above is a very general and rough storyline. To prove infringement, the plaintiff submitted much more evidence about specific characters and plots to show substantial similarity.
(2) Characters
After a thorough comparison, the court found that both parties' works shared the following characters:
The king, the sole authority of the royal family;
The wife of the king, who did not give birth to any boys and replaced her fourth girl with a boy;
The fake prince, who grew up in the royal family, and fell in love with the abandoned princess;
The abandoned princess, who grew up in a local family, loved the prince and became his concubine;
The Emperor, who granted an official marriage to the fake prince; and
The official wife of the prince, who hated her husband's concubine out of jealousy. She accused the concubine of being a witch. After she discovered that the concubine was actually the abandoned princess, she informed the Emperor of same.
(3) Specific Plots
In order to show a striking similarity, the plaintiff further raised a total of 21 specific plots from both parties' works, and compared them one by one.
After a thorough analysis, the court concluded that:
Plots No. 6, 14, and 17 were not copyrightable because they did not have sufficient originality;
Regarding plots No. 2, 3, 4, 11, 12, 13,15, 16, 20, while they were copyrightable, the court found that the two parties’ works were not substantially similar.
Regarding plots No. 1, 5, 7, 8, 9, 10, 18,19, 21, the court found such plots to be copyrightable and also found substantially similarity between the parties' works.
Based on the finding of substantial similarity in the above 9 plots, the court concluded that it constituted infringement of the plaintiff's right to make a derivative work (including a derivative script and a derivative TV series).
- Ruling
The court ruled that the defendants jointly infringed the plaintiff’s:
Right of adaption, i.e., the right to make a derivative new script based on the original copyrighted work; and
Right of cinematography, i.e., the right to make a derivative TV series based on the original copyrighted work.
The court issued the following judgment against the defendants:
Damages in the amount of 5 million RMB, with five defendants being jointly liable, including the investor (Wanda Inc.),studios (Hunan eTV Inc., Dongyang Huan Yu Inc.[2],Dongyang Xing Rui Inc.[3]) and the scriptwriter (Yu Zheng);
Permanent injunction against the accused TV series: Palace 3; and
A public apology from the scriptwriter Yu Zheng.
III Potential Issues in Appeal
1. "Special experience test" for distinguishing ideas and expressions
According to the court, if a plot is specific "to the extent that it gives a special aesthetic experience that is sufficient to identify the source of the work, … it can be considered as an expression." In addition, the court held that such a test is universally applicable to characters, plots, storylines, etc.
However, to our knowledge, there is no Chinese precedent for such a "source-identifying special experience test". Let's see whether the appellate court, Beijing High Court, will support this test or not. - Damages calculation
The plaintiff asked for damages of 20 million RMB, asserting that the accused scriptwriter, Yu Zheng, was typically paid 200,000 RMB for one episode, and would be paid 12 million RMB for this 63-episode TV series.
The defendants refused to disclose any data in relation to profits or costs in investing, writing, making and distributing the accused TV series. Accordingly, the court exercised its discretion in determining damages in the amount of 5 million RMB.
It will be interesting to see whether the defendants will insist on this non-compliance strategy on appeal. - Permanent injunction
It is rare for a Chinese court to issue a permanent injunction to protect a private right, i.e., an individual's copyright. Interestingly, according to the court, the judges considered the balance of hardship between the parties. The court writes, "when the case was heard before the court, the accused work had been played in cable TV for eight months…. Such a period has granted the defendants a relatively high reward… thus it will not cause an imbalance of hardship between the parties".
This language seems to imply that the court would probably not have issued a permanent injunction if the litigation was brought earlier, for example, when the accused TV series had not finished or had not been aired. We hope the appellate court will provide comments on this approach. - Joint liability of investor
It will also be interesting to see whether the investor, Wanda Inc., will appeal. It is not common for an investor to have joint liability. From the perspective of the entertainment industry, this is clearly not a friendly ruling and is likely to deter future investors. We are curious to see whether the appellate court will affirm such a ruling, or alternatively, create a safe harbor for investors.
[1] See Chiung Yaov. Yu Zheng, Judgment No. 07916 by Beijing No.3 Intermediate Court
[2] Chinese name: 东阳欢娱影视文化有限公司。
[3] Chinese name: 东阳星瑞影视文化传媒有限公司。