The first case in the country! Sentenced to one year in prison for "ice pier"! This usage specification is published

These days, the news about the "top stream" of the Winter Olympics - "ice piers" frequently brushes the screen. While many likes to vote, the infringement of "wild ice piers" has also attracted much attention. Pu Fajun has also sent you a lot of relevant reminders before.

【"Ice Pier" Series Review】

1, the "ice pier" is on fire! Make your own one, is it infringing? Watch out for such scams...

2. Quick collar! Your exclusive "Ice Pier" WeChat avatar! Also be vigilant...

3. The trademark of "Gu Ailing" was registered, and even the "ice pier" and "snow rongrong" were also targeted... The experts have something to say

4. Important reminder! Don't send this kind of meme randomly!

01

The "ice pier" is on fire,

What acts count as infringement?

The official response is coming!

On February 14, 2022, the Beijing News Center held a special press conference to focus on the overall situation of comprehensively strengthening the protection of intellectual property rights in the Winter Olympics.

At the meeting, Tang Zhaozhi, deputy director of the Copyright Administration Bureau of the Central Propaganda Department and a first-level inspector, introduced that recently, beijing quickly investigated, quickly prosecuted, and quickly sentenced a case of manufacturing and selling pirated Winter Olympic mascots "Ice Pier" and "Snow Rongrong" dolls, and the criminal suspect Ren Mou was sentenced to one year in prison and fined 40,000 yuan, becoming the first criminal case in the country to infringe the copyright of the image of the Beijing Winter Olympics mascot.

How to use mascot images such as "ice pier" and "snow rongrong" is legal, and how to punish if there is infringement?

Tang Zhaozhi said that in addition to the "fair use situation" specifically stipulated by the law, other unauthorized uses in the sense of copyright, such as the production of toys and dolls by merchants without the permission of the right holder, or the use of them in peripheral derivative products such as clothing, may constitute infringement. Those who harm the public interest will be subject to administrative punishment; if a crime is constituted, criminal responsibility will be pursued.

02

The "Ice Pier" usage specification was issued

Under what circumstances can the "ice pier" be used in accordance with the law, what procedures need to be performed, and what rules need to be followed? The Beijing Winter Olympics Organizing Committee helped everyone summarize.

First of all, the mascot "Ice Pier" is an important property of the Beijing Winter Olympics Organizing Committee, and the Beijing Winter Olympics Organizing Committee enjoys copyright, the exclusive right to use the registered trademark and the design patent right for the image of the "Ice Pier" in accordance with the law, and also enjoys the exclusive right to use the registered trademark for the Chinese and English names of the "Ice Pier". Therefore, anyone who uses the image or name of the "ice pier" shall comply with the provisions of the Copyright Law of the People's Republic of China, the Trademark Law of the People's Republic of China, the Patent Law of the People's Republic of China (hereinafter referred to as the Copyright Law, the Trademark Law, the Patent Law) and other relevant laws and regulations.

For example, the image of the "ice pier" as a work of art, the copyright of the Beijing Winter Olympics Organizing Committee is protected by law, without the permission of the Beijing Winter Olympics Organizing Committee, no other unit or individual may use the work, let alone distort the image of the "ice pier", tamper with or other improper use, except for reasonable use in accordance with the law. Similarly, the exclusive right to use registered trademarks and design patents enjoyed by the Beijing Winter Olympics Organizing Committee for the image and name of the "ice pier" are also protected by law. For illegal use, the Beijing Winter Olympics Organizing Committee has the right to pursue the legal liability of the infringer.

Secondly, the Beijing Winter Olympics Organizing Committee enjoys the exclusive right to the Olympic symbol in addition to the traditional intellectual property rights such as works, trademarks, and patents for the image and name of the "ice pier". The special protective measures for some important Olympic elements are unique to the mainland, which originate from the Regulations on the Protection of Olympic Symbols and also reflect the mainland's respect for Olympic rules. At present, the State Intellectual Property Office has announced a total of 63 Olympic symbols. It includes not only the cute mascot "Ice Pier", but also the Olympic five-ring pattern, the emblem of the Beijing Winter Olympic Games and other symbols.

The code for the use of "ice piers" makes it clear that the use of the Olympic symbol can be divided into two situations: commercial and non-commercial

Commercial Use

The Regulation on the Protection of Olympic Symbols stipulates that no person may use the Olympic symbols for commercial purposes without the permission of the right holder of the Olympic symbols.

The image and name of the mascot "Ice Pier" of the Beijing Winter Olympic Games belong to the Olympic symbol determined by the laws and regulations of the mainland, and no one may use the image and name of the "Ice Pier" for commercial purposes without the permission of the Beijing Winter Olympic Organizing Committee.

At present, the IOC's global partners and official partners and official sponsors of the Beijing Winter Olympics can use the image and name of the "ice pier" commercially in accordance with the law.

In addition, Beijing Winter Olympics franchise manufacturers and retailers can produce and sell licensed goods with the image and name of "Ice Pier" in accordance with the Beijing Winter Olympics franchise plan.

Non-Commercial Use

Non-profit legal persons or organizations such as government legal persons and public institutions may apply for non-commercial use of the "ice pier" of the Mascot of the Beijing Winter Olympics. However, you must log on to the official website of the Beijing Winter Olympics Organizing Committee, fill in the materials as required, and apply.

Wang Hui, a lawyer at Beijing Jingshi Law Firm, explained: "Commercial use refers to the use of the 'ice pier' and 'snow melting' logos for profit, such as printing the 'ice pier' on clothes and selling it. Non-commercial use does not include for-profit purposes, such as the use of the 'ice pier' and 'snow rongrong' logos on forums held by government departments and not hosted by specific enterprises, which fall into this category. ”

03

More questions and answers about the "ice pier"

Is it okay to design the image of the "ice pier" into a nail art pattern for customers?

The "ice pier" gathers the original wisdom of the creator, has an artistic aesthetic sense, should belong to the work of art, and is protected by the Copyright Law. According to the Copyright Law, the copyright owner (the Beijing Winter Olympics Organizing Committee) enjoys the right of reproduction, and without the permission of the right holder, the image of the ice pier cannot be copied, rubbed, etc. to make one or more copies.

Although the nail art pattern model is only a flat "ice pier" image, it is still a reproduction of the "ice pier" shape, design, layout, structure, etc. of the opposite. Therefore, without the permission of the right holder, the use of the image of the "ice pier" to design nail art patterns, customized logos, etc. are all infringing on the copyright of the right holder and are infringing acts.

I owned a set of "ice piers" and my friends were envious and wanted to rent it back for a while. Am I renting it out to him, is it illegal?

Although the Copyright Law clearly stipulates that the copyright owner has the right to distribute and lease the work, the "ice pier" has been sold in the market and the distribution right has been exercised; at the same time, the "ice pier" as a work of art does not belong to the object of the rental right protection under the Copyright Law, and the act of renting the "ice pier" does not fall within the scope prohibited by law.

Therefore, as the legitimate holder of the "ice pier", the "ice pier" can be freely sold and leased in various forms without disrupting the market order. Therefore, the act of renting an "ice pier" does not constitute infringement.

Does the act of adapting "Ice Pier" into a comic book image, meme, or even ugliness constitute infringement?

The use of the image and design elements of the "ice pier" to create comics, memes, etc., and the publication and use of the created comics and memes violates the provisions of the Copyright Law. Although the creators made a large number of changes and only used some elements of the "ice pier", the creation was based on the re-creation of the original image, elements and connotations of the "ice pier", which infringed the copyright owner's right to adapt.

At the same time, if the comic strip and other creative process uses a funny, funny, and spoof way, and the artistic conception expressed is different from the original work, resulting in a decrease in the public's evaluation of the original work, then the re-creation of comics, memes, etc. has distorted and tampered with the original work, and also infringed the copyright owner's right to protect the integrity of the work, constituting infringement, and should bear civil liabilities such as stopping the infringement, eliminating the impact, apologizing, and compensating for losses.

The image of "ice pier" is cute and attracts countless powders. Can I apply its image to the advertising videos produced by my own company?

The Copyright Law stipulates that the copyright owner has the right to broadcast, the right to disseminate information networks and the right to film the work, that is, to disseminate the work to the public by wire or wireless means, or to enable the public to obtain the work at a time and place selected by the individual, and the right to fix the work on the carrier by making a film or by a method similar to that of filming.

Filming the image of the "ice pier" into a video and making it into an advertisement not only infringes the filming right of the copyright holder of the "ice pier", but also places the advertising video using the image of the "ice pier" on television and network platforms for publicity, and may also infringe the copyright owner's right to broadcast and the right to disseminate information networks.

In addition, in December 2020, "Ice Pier" has completed the trademark registration, so the use of the "Ice Pier" image and logo for profit advertising also infringes trademark rights.

My baby copied the image of the "ice pier" in the art class and put it in the painting competition organized by his unit, is it infringing?

Article 24 of the Copyright Law stipulates that if a work has been published by another person is used for the purpose of personal study, research or appreciation, and where a work is copied, painted, photographed or videotaped in an outdoor public place, the copyright owner may not be paid remuneration without the permission of the copyright owner if the name of the author or the name of the work is indicated and the name of the work does not infringe on other rights enjoyed by the copyright owner.

The baby's copying and painting of the "ice pier" in the art class is a copying act of the artwork in an outdoor public place, and it is reused in a reasonable way and within a limited scope, which does not constitute infringement. The use in the unit-wide painting competition will not affect the value and potential market of the original work, and will not affect the normal use of the right holder. Therefore, copying and painting the image of the "ice pier" in the outdoor square and park, and participating in the competition within the limited scope of the unit will not affect the value and market position of the "ice pier", and does not constitute infringement.

It is a pity that I can't buy an "ice pier", so I agreed with the barber to let the barber cut a "ice pier" hairstyle for myself, is it okay?

For the purpose of personal study, research or appreciation, the use of works already published by others for personal use within a limited range is a fair use of the work and does not require the permission of the right holder.

However, if it is used for commercial purposes, or if the scope of personal use exceeds the reasonable limit, if it is used in public, it exceeds the scope of fair use and constitutes an infringement of the copyright owner's rights.

Barbers reproduce the image of the "ice pier" for commercial purposes, and the image of the "ice pier" carved above the person's head will inevitably appear in public, beyond the use of the family and a specific scope. Therefore, the barber's behavior of grooming the customer's "ice pier hairstyle" constitutes an infringement of the rights of the copyright owner of the "ice pier".

Judge prompts

"Ice Pier" is not only a work of art and trademark, but also a mascot of the Beijing Winter Olympic Games, in addition to the protection of the Copyright Law and the Trademark Law, it is also protected by special laws such as the Regulations on the Protection of Olympic Symbols and the Regulations on the Administration of Special Signs.

Therefore, without the permission of the Beijing Winter Olympics Organizing Committee, no unit or individual may use the image and name of the "ice pier" without authorization to disseminate and sell derivatives of the "ice pier", and at the same time, the image of the "ice pier" may not be used as a part of the pattern for secondary creation and use.

However, compiling or carving the image of the "ice pier" in one's own personal belongings for one's own use and appreciation is fair use and does not constitute infringement.

(Guangzhou Law Popularization)