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The "mushroom head series" emoji giant sued a number of companies for rights protection, founder: helpless move
Intellectual Property Frontier
Media are authorized to use the Mushroom Head series emoji Photo courtesy of interviewee
Recently, a number of companies have successively received a letter from the lawyer of the authorized agent company Sanjiyuan Company of the "Mushroom Head Series" emoji package, alleging that the defendant company used the image of the "Mushroom Head Series" without authorization in its tweets, infringing the copyright of Guangzhou Mosquito Animation Company (hereinafter referred to as Mosquito Animation Company) and Three Dimension Company on the art works and derivative images of the "Mushroom Head Series", and should bear infringement compensation.
It is understood that the author of the mushroom head emoji is a mosquito animation company, first published in 2013, after being recreated, it has now become one of the mobile Internet emoji giants. The "Mushroom Head Series" has been officially commercialized since 2018, and has won the top ten most popular emoji packs of the year and the first place in Guangzhou in the National Innovation and Entrepreneurship Competition. At present, more than 100 sets of emoji packages (24 in each group) have been launched on WeChat, with a total of nearly 1 billion domestic users, and the monthly sending volume has exceeded 10 billion, and it has established authorized cooperation with brands such as Colgate, CMB, Unification, and Westward Journey.
The mushroom head series emoji has established licensing cooperation with major brands such as Colgate and Westward Journey Photo provided by interviewee
In the recently pronounced judgment in the alleged infringement case of a company in Nanjing, the court held that the defendant company used seven mushroom head memes in the company's tweets without permission, infringing the copyright owner's right of information network dissemination. In the end, the court ordered the defendant company to compensate the mushroom head emoji agency company 4,650 yuan. At the same time, the court advocated reasonable and rational rights protection, saying that the plaintiff company should take negotiation as the first choice for rights protection, and discourage artificially increasing the cost of dispute resolution.
Why did the mushroom head emoji giant, which has sent more than 10 billion, start to defend its rights recently? Wu Wuze, founder of the mushroom head series emoji and mosquito animation company, told Red Star News, "My intention is not to support rights protection, rights protection is a helpless move for the company, and I have some bitterness now." ”
An informed source who has worked for Mosquito Animation for many years revealed that Mosquito Animation has mainly relied on the IP of the mushroom head series for 9 years, and the art cost invested is high, and most of them rely on IP licensing. Due to piracy and unauthorized abuse, the company was once in business difficulties, and employees could not be paid. "Now it is also a helpless move to take up legal weapons to defend rights, and I hope that the public can raise awareness of domestic intellectual property protection, so that domestic IP can continue to develop benign and benign development."
A company tweeted that it used seven mushroom head emoji packs and was sued for compensation of 52,739 yuan
A few days ago, a sued company in Nanjing told Red Star News that the company used seven mushroom head emojis in WeChat tweets, and the relevant tweets were all popular science articles, all for learning and sharing, and there was no profit purpose. After receiving the lawyer's letter from the authorized agent company Sanjiyuan of the "Mushroom Head Series" emoji, the article has been deleted as soon as possible. In the letter, Sanjiyuan Company claimed compensation of 49,479 yuan for economic losses and 3,260 yuan for reasonable expenses for rights protection, a total of 52,739 yuan.
In the complaint, the authorized company Sanjiyuan claimed that Sanjiyuan Company obtained the authorization of Mosquito Animation Company, the sole copyright owner of the "Mushroom Head Series" art works and subsequent derivative images. Since its launch, the "Mushroom Head Series" animation image has been deeply loved by the general public and has extremely high commercial value.
From a recent final judgment document, Red Star News learned that the mushroom head series was first published in March 2013 and filed with the National Copyright Administration in November 2015, with the registration number Guozuo Denzi-2015-F-00237559, the category is fine art works, and the author and copyright are mosquito animation companies, and mosquito animation companies publish the mushroom head series on WeChat emoji open platform and Weibo.
On May 30, 2018, Mosquito Animation Company licensed the mushroom head series image and subsequent derivative images to Shenzhen Sanyuan Intellectual Property Management Co., Ltd. for the authorization period from June 1, 2018 to May 30, 2023. Shenzhen Sanyuan Company was later renamed Guangzhou Sanweiyuan Intellectual Property Management Co., Ltd., and in December 2020, it was renamed Qingdao Sanweiyuan Intellectual Property Operation and Management Co., Ltd. (hereinafter collectively referred to as Sanjiyuan Company).
In a number of infringement cases, Sanjiyuan Company's claim was that the defendant's actions violated the Copyright Law and other relevant provisions, infringed the copyright of Mosquito Animation Company on the "Mushroom Head Series" art works and the derivative images created subsequently, and the rights of Sanjiyuan Company to the "Mushroom Head Series" art works in accordance with the law, and obtained illegal profits from them, causing significant economic losses to Sanjiyuan Company, and should bear infringement compensation.
Tianyan investigation shows that as of September 29, Sanjiyuan Company has been involved in a total of 33 cases, of which 28 are new in 2022, 79.4% of the cases involved are disputes over infringement of the right of online dissemination of work information (the rest are copyright disputes), and 100% of the cases are plaintiffs. There are 14 cases in the first instance stage of civil affairs, and 5 cases have been closed, all of which were voluntarily withdrawn by Sanjiyuan Company.
Screenshot from Sky Eye Check
The focus of the trial: whether the company has the right to file a lawsuit for compensation is appropriate
In the above-mentioned case of an infringement of a company in Nanjing, Sanjiyuan Company claimed compensation of 49,479 yuan for economic losses and 3,260 yuan for reasonable expenses for rights protection. The court of first instance held that the focus of the dispute in this case was whether Sanjiyuan Company had the right to file a lawsuit in its own name; whether the accused company has infringed the copyright and property rights of the pictures involved in the case; If infringement is constituted, the defendant company shall bear tort liability.
Regarding whether Sanjiyuan Company has the right to file a lawsuit in its own name, the court held that the rights works claimed by Sanjiyuan Company in this case are cartoon characters drawn in the style of thick lines and stick figures, and the faces are filled with black face silhouettes to express facial expressions, which meet the requirements of the Regulations for the Implementation of the Copyright Law of the People's Republic of China on the originality and artistic beauty of fine art works, and belong to the meaning of the mainland copyright law. According to the registration certificate of the mushroom head series submitted by Sanjiyuan Company and the authorization letter issued by Mosquito Animation Company, the court of first instance confirmed that Sanjiyuan Company has the right to file a lawsuit against infringement in its own name.
Regarding whether the defendant company constituted an infringement of the property rights of the art works involved in the case, the court of first instance held that in this case, the seven pictures of the defendant company and the "mushroom head series" of the pictures involved in the case constituted substantial similarity. Without the permission of the copyright owner, the accused company used the rights pictures of Sanjiyuan Company in its published articles, so that the relevant public could obtain the above seven allegedly infringing pictures through the company's WeChat public account at a time and place selected by them, infringing the information network dissemination rights of Sanjiyuan Company, and should bear corresponding infringement liability according to law.
With regard to the tort liability to be borne by the defendant company, the court of first instance held that Sanjiyuan Company's claim for compensation for losses and reasonable expenses was based on law, but because it failed to prove the actual losses and could not prove the infringement profits of the defendant company, the court of first instance determined the amount of compensation of the defendant company based on factors such as the type and popularity of the works involved in the case, the publication and dissemination costs of the works involved in the case, and other factors.
In summary, the court of first instance determined at its discretion that the total amount of compensation that the defendant company should bear to Sanjiyuan Company was 4,650 yuan (including reasonable expenses), and dismissed Sanjiyuan's other litigation claims.
Subsequently, Sanjiyuan Company appealed against the verdict of the court of first instance, requesting that the defendant company be compensated for the economic losses of the first-instance claim of 49,479 yuan and the reasonable expenses of rights protection of 3,260 yuan in accordance with the law. The court of second instance rejected Sanjiyuan's appeal and upheld the original judgment. The court of second instance held that the court of first instance determined that the total amount of compensation to be borne by the defendant company to Sanjiyuan Company was 4,650 yuan (including reasonable expenses) based on factors such as the type of work involved in the case and the popularity of the work, which was in line with the discretionary scope stipulated by law, and was not obviously improper, and was upheld according to law.
The judgment of the second instance mentioned that "the court of first instance advocates reasonable and rational rights protection, and the plaintiff Sanweiyuan Company should take negotiation and settlement as the first choice for rights protection, and if the negotiation fails, it should also choose a lower-cost evidence preservation and litigation method, and discourage artificially increasing the cost of dispute resolution." ”
Insider: The company was once in business trouble due to piracy and unauthorized abuse
Why did the mushroom head emoji giant, which sends more than 10 billion per month, start to defend its rights one after another recently? A few days ago, Wu Wuze, founder of the mushroom head series of emoji and mosquito animation company, told Red Star News, "My will does not support rights protection, I have opened the company for so many years, and I have not sued others on a large scale." Because I always feel that an IP, if everyone likes it, it is actually okay to use it on the Internet, and rights protection may chill users who like you. ”
The recognition and expectations of a group of early seed users gave Wu Wuze the motivation to persevere, he said, rights protection income is not so important to him, he did not participate in the agency company Sanjiyuan company's rights protection behavior. "Rights protection is a helpless move for the company, and I have some bitterness now."
Wu Wuze said that he was unwilling to talk about what kind of bitterness. An informed source who has worked for Mosquito Animation Company for many years revealed to Red Star News that Mosquito Animation Company has mainly relied on the IP of the mushroom head series for nine years, and the art cost invested is high, and most of them rely on IP licensing. Due to piracy and unauthorized abuse, the company once fell into operational difficulties, and employees' salaries could only be paid once in a few months, and the landlord was almost cut off from electricity for half a year in arrears of rent. According to him, "Mosquito Animation employees have shrunk from more than 20 at the peak to three or four. ”
According to the person familiar with the matter, the user manual of the WeChat emoji mall makes it clear that the emoji is limited to my personal use in WeChat, but cannot be used for product packaging for commercial purposes. In recent years, Mosquito Animation has been trying to expand licensing cooperation, but the licensing work has not been smooth. "It's a sad story: When you find out that more and more people are using it for free, will you be the first to spend money?"
Red Star News noted that in a report in 2020, Wu Wuze once introduced to the media that the current profit methods of mosquito animation mainly include IP licensing, brand cooperation, content payment, etc., and the profit points are mainly in the matter of cooperation authorization. As for content payment, at present, the domestic emoji payment is still in the early stage, and consumers' content payment habits have not yet been formed, "The main ones who are willing to pay to use emojis are the post-90s." ”
The above-mentioned insider told Red Star News that founder Wu Wuze has a strong sense of copyright, but has been unable to protect his works. In the early stage, he spent a lot of money to buy the copyright, and as soon as he made money, he paid out his family to sign several exclusive global portrait rights involving a wide range of memes, including South Korea's 'Kim curator' Choi Sung-kook and American wrestler Ilya Bock. At first, he simply felt that I must make the best expression, (do) the one that everyone likes to use the most. He put all his energy into making content. ”
According to the insider, Mosquito Animation ignored the protection of intellectual property rights in the initial stage, and after that, the infringement began to affect the company's operations. "At this time, standing up to defend rights, limited by some stereotypes, the company will inevitably face a lot of backlash and public opinion pressure." But legally, this is actually a very clear matter of ownership. According to the person familiar with the matter, it is also a helpless move for the company to take up legal weapons to protect its rights, hoping that the public can improve their awareness of domestic intellectual property protection, so that domestic IP can develop benign and sustainable.
What the experts say
| Rights Protection Is Legal but Easy to Cause Litigation Litigation is not the only way to resolve it
Before a number of infringement cases, some netizens questioned whether it was legal for Sanjiyuan Company to file multiple infringement lawsuits against companies that used mushroom head emojis? In the field of intellectual property, how can the public safely and legally use memes published on the Internet? How can authors and authorized IP companies properly safeguard their common interests?
A number of netizens reported that their company suddenly received a lawyer's letter from the copyright agency company of the "mushroom head series" emoji package
An industry insider told Red Star News that there are not many users in China who are willing to pay for emojis, "Maybe one person appreciates 10,000 talents, so emoji companies rely on IP authorization to maintain the company's operation, such as licensing to some enterprises and platforms." However, with piracy and abuse, more and more companies are unwilling to pay for cooperation, resulting in the business difficulties of some meme companies. There is still a lack of mature commercial derivatives and complete development chains in China. ”
According to industry insiders, many people think that the emoji is a stick figure, but in fact, behind it is the author's hard work and inspiration, and every year a lot of art workers are required for concept design, collection of hot spots, dynamic storyboarding, banner drawing production and other design processes, "Finally, the few pictures that everyone really commonly uses may be hatched from thousands of works, and a lot of manpower and material resources can survive one or two explosive models." ”
In response to the legality of such infringement cases, lawyer Lin Xiaoming, a partner of Sichuan Yishang Law Firm, explained to Red Star News that if Sanweiyuan Company is authorized by the emoji company that enjoys copyright, it has the right to file a corresponding lawsuit and claim corresponding compensation from the infringing company. "Personally, I feel that judging from the whole incident, Sanjiyuan Company's claim that the accused company has a certain factual and legal basis, and its corresponding litigation claims should be supported according to law."
Lawyer Lin Xiaoming introduced that in recent years, many intellectual property management companies like Sanjiyuan have been more active in the fields of copyright and trademark rights, and have mostly adopted the mode of obtaining authorisation from authors and filing batch lawsuits to protect rights, "Although this kind of rights protection is a legal exercise of the rights granted by law, which can protect the rights and interests of the parties to the greatest extent, and can even achieve the relevant effects of popularizing the law, it does cause a burden of litigation in practice, and litigation is not the only and necessary way, perhaps all parties need to find a more reasonable and optimized solution." ”
Lawyer Lin Xiaoming believes that in this case, I personally believe that the judgment of the first and second instance of the case complies with the relevant facts and legal provisions, but more precise or convincing explanations may be needed in terms of the amount of infringement compensation. According to the infringement process, the accused company used a total of seven relevant art works, that is, memes, and when it is difficult to determine "the actual losses suffered by the right holder or the illegal gains of the infringer", it is recommended to refer to the "Trial Measures for the Remuneration of Art Publications" and the "Measures for Payment of Remuneration for Works Legally Permitted to Use of Textbooks" to determine the corresponding amount of compensation, that is, each work can be paid at the standard of 200-400 yuan, so that similar infringements can be dealt with fairly and reasonably.
| Emoji can be used commercially to reasonably protect rights There are difficulties in rights protection: it is difficult to collect evidence, difficult to protect rights, and low compensation
In the field of intellectual property, how should the original author and the authorized intellectual property company properly safeguard their common rights and interests? Fu Jian, director of Henan Zejian Law Firm, introduced that Mosquito Animation Company and Sanjiyuan Company, as copyright owners and entrusted agents, are qualified parties and have the right to protect their legitimate rights and interests through litigation, so the act is legal. However, in the early stage, the copyright company licenses others to use memes for free, and if others do not know that permission is required and illegal benefits are not pursued, the company may not support its litigation claim, or the amount of compensation may be relatively low.
Dong Xinrui, an expert in the Beijing Intellectual Property Expert Database and founding partner of Sorghum Capital, told Red Star News that the use of emojis for non-profit purposes is generally tacitly allowed for free. If used in general social software, it is used for private chat, personal appreciation and other purposes, not for profit, belongs to the scope of fair use, and generally does not constitute infringement. "However, when some social platforms or companies download memes for commercial use, there are suspicions of marketing strategies, advertising, etc., and rights should be stopped or reasonably protected."
Dong Xinrui introduced that the operation of emojis requires a certain business model, such as cooperating with brands to charge a certain license fee, cooperating with enterprises to increase product awareness and publicity license fees, and innovation after binding with some hot events.
In his view, the protection of emoji IP rights is only a way to protect its own intellectual property rights and interests, and companies should expand business models, strengthen innovation, detonate traffic and bind specific products if they want to develop. "We can combine blockchain, AI and other technologies to expand traffic on the basis of commercialization model innovation, and then carry out precise promotion and rights protection." The uniqueness, differentiation, and impact of memes are key. ”
In view of the current intellectual property dilemma faced by most emoji companies, Dong Xinrui introduced that emoji companies are still facing the old problems of rights protection in the field of intellectual property rights: difficult to collect evidence, difficult to protect rights, and low compensation. "Rights protection is a business strategy, there is no right or wrong. The key is that the rights holder can prove that the initial IP innovator is himself, as long as the evidence is conclusive and does not damage the reputation of the rights holder. ”
| Emoji companies have difficulties in operation We should build a good ecology of "free-fee"
Liu Xiaochun, executive director of the Internet Rule of Law Research Center of the University of Chinese Academy of Social Sciences, told Red Star News that in the public perception, memes are a product of the free ecological model of the Internet, and Internet service providers must obtain widespread attention from users by providing "free" services and let users get a good experience, but the ultimate goal is to achieve "fees" and profits. In the emoji ecosystem, there is less profit through personal paid use, more through free promotion to achieve a certain degree of attention, and then through the product to do some derivative development or licensing company profit, such as authorized toys, clothing, beverage packaging, etc.
Liu Xiaochun pointed out that many people feel that some free use should not be charged, which has a certain inertia and emotion, which is understandable, but there is also a bit of moral kidnapping. Choosing whether to protect rights or not, from the perspective of the Internet ecology, companies may take into account their own reputation and audience feelings, which is a business decision-making issue. From a legal point of view, there is no problem for copyright owners to protect their rights. "Many copyright owners are willing to let everyone widely use it for free, but they also have the right to obtain corresponding benefits through licensing, which is his legitimate right and right."
Liu Xiaochun introduced that there is actually no basis for the abusive litigation behavior of "free in the early stage and charging in the later stage" that netizens are currently arguing about. Because infringement is only subject to the agreement, the right holder has the right to choose when to sue the infringing party. Whether rights protection has had the effect of reducing the occurrence of infringement or the extent of compensation is another question.
At present, there are certain difficulties in the survival and operation of emoji companies. Liu Xiaochun pointed out that the Internet business model should gradually build a good ecology of "free and paid". "Considering the consequences of infringement, large commercial customers generally do not use infringingly, but he spends money to buy authorized use, and finds that others are also using it, which will dilute the exclusive or personalized use effect of his authorized use, and over time some commercial customers are unwilling to continue to pay for use, which to a certain extent causes the business dilemma of the emoji company."
Liu Xiaochun suggested that when copyright owners face infringement incidents, there are often more complicated cases, and copyright owners can formulate corresponding licensing price standards in the licensing market. For example, the version listed on WeChat shows commercial pricing or free to use, if the pricing is reasonable and transparent, enterprises or commercial platforms can also automatically trade through the platform to obtain authorized use, reducing the transaction costs of both parties. Liu Xiaochun stressed, "In this way, rights holders can also reduce the energy to defend their rights in one infringement case after another." Through some trading markets, it is actually possible to achieve a benign flow of copyright licensing, but this may also need some platforms to support. ”
Source: Red Star News
Edited by Sharon
[This article is selected from the preface of intellectual property, if there is infringement, please contact to delete]