The advertisement that Apple attaches so much importance to has been adapted, if Apple asks netizens to stop infringing, is there a legal basis?
Author | You Yunting is a senior partner and intellectual property lawyer of Shanghai Dabang Law Firm
Edit | Bruce
Recently, in an attempt to revive sales of the new iPad, Apple released a controversial advertisement[i] in which a variety of musical instruments, toys, records, lenses, etc. were destroyed, highlighting that the iPad Pro could replace these products. It has been criticized by many media[ii] and many people, including movie star Hugh Grant, because its moral is to mean that electronics destroy everything[iii]. But netizens creatively adapted this work and played the advertisement in reverse order, giving the work the meaning of the disappearance of electronic products and the reappearance of beautiful things. The advertisement that Apple attaches so much importance to has been adapted, if Apple asks netizens to stop infringing, is there a legal basis? I'm going to talk to you about this today.
1. Advertising content and reversible content
(Source: Screenshot of Apple's advertising video, please click >> here << view the video)
Apple advertisement: A hydraulic press slowly pressed down to destroy musical instruments, trumpets, camera lenses, upright pianos, paint, metronomes, clay models, wooden anatomical reference models, vinyl records, framed photographs, as well as ceramic angry birds and a bunch of rubber emoji balls, followed by a new iPad Pro appearing in the film, a metaphor for Apple's products to replace the items in the video.
The reversible version of the advertisement adapted by netizens: "The reverse version is to play the official version upside down, which is exactly the same as the method of shooting light skills in early martial arts movies." However, the purpose of the reverse version is completely different from the original. In this version made by netizens, the iPad Pro leaves the screen, and the hydraulic press rises. All the love objects of life that have been destroyed by digital technology are restored from the fragments, rising from the dust, and shining again. The above is quoted from the description of netizens and Caitou. [iv]
2. Apple has the right to claim copyright infringement, but it is more difficult to claim defamation infringement
According to the Copyright Law of the People's Republic of China, Apple's advertising video constitutes an audio-visual work, and the adaptation and publication of the advertising video on the Internet requires the authorization of the copyright owner, Apple's adaptation right and information network dissemination right. Protect the right to integrity of the work, that is, the reverse ad is suspected of distorting or tampering with Apple's advertising video. Two property rights: the right of adaptation, that is, the publisher has adapted the Apple advertising video without permission to create a new work; The right of information network dissemination, that is, the rewind video publisher provides works containing Apple's advertising videos to the public online.
If Apple determines that the rebroadcast video has caused damage to the reputation of Apple or its products, it can also claim defamation infringement, but in this case, the author believes that it is more difficult to assert because defamation infringement requires insulting or defamatory circumstances, and the circumstances in this case obviously do not constitute these two points.
3. Does rewind advertising constitute fair use?
If Apple asks a publisher to remove an online rewind ad for unauthorized copyright infringement, the publisher may claim fair use. The legal basis is Article 24, Paragraph 2 of the Copyright Law of the People's Republic of China, which stipulates that for the purpose of introducing or commenting on a work or illustrating a certain issue, a work that has been published by another person may be appropriately quoted without the permission of the copyright owner and without remuneration to be paid, provided that the name or title of the author and the title of the work shall be indicated, and shall not affect the normal use of the work, and shall not reasonably damage the legitimate rights and interests of the copyright owner.
In this case, the creator reverses Apple's ad in order to comment on the ad: if the work is played upside down, all sorts of good things will reappear after the iPad Pro disappears. Rewinding gives a new meaning to the work and constitutes a commentary, a situation that is referred to as "transformative use" under U.S. copyright law.
The most famous case in which the Tianjin High Court found that The Song of the Five Rings constituted a transformative use of The Song of the Peony[v], stating that "although the Song of the Five Rings in this case directly used the musical elements of The Song of the Peony, the theme of the expression was not a praise of the peony, but a satire of Beijing's traffic congestion. "Song of the Five Rings" will not let the audience appreciate the beauty of the music melody, but through irony, let the audience appreciate the humor of the lyrics and the ridicule of life. "Song of the Five Rings" constitutes a completely new work in terms of content, form and theme, which does not constitute a substantive replacement for "Song of Peony", but transforms the old elements into a new insight and work, constituting a transformative use of "Song of Peony". ”
In 2016, Huluwa case[vi] of the top ten intellectual property cases in Shanghai clarified the criteria for the review and judgment of transformative use as fair use: that is, in the case of transformative use, if it does not affect the normal use of the original work and does not unreasonably damage the legitimate interests of the copyright owner, it constitutes a fair use of the original work.
This case is analyzed in this way: first, the rebroadcast of Apple's advertisement as a comment does give a new meaning to the work, which is not general, but very strong in strength, revealing the kind of social problems that will resonate with many people; Secondly, the new work will not hinder the normal use of the original work, and even many people who have seen the rewind ad will take a look at the original work and taste it; Finally, the value of Apple's iPad Pro products has not been unreasonably damaged, and the excessive impact on life with the use of electronic products has become a social concern, and the inverted advertising expresses this point of view in a less drastic way, even though it may have an impact on the sales of iPad Pro products, but this impact is not unreasonable.
Of course, if other factors are added to the circulation of the rewind video: for example, in order to promote their own products, friends release rewind videos, step on Apple, and attract traffic for their new products by the way; Or add a narration to satirize Apple; Or add funny or satirical pieces. At this point, it is debatable whether it constitutes transformative use, because the court may find that the act of using the replayed video to divert traffic is unreasonably harming the legitimate rights and interests of the copyright owner.
exegesis
[i] https://twitter.com/tim_cook/status/1787864325258162239
[ii] https://www.rogerebert.com/mzs/dear-tim-cook-be-a-decent-human-being-and-delete-this-horrible-violent-depressing-ad-for-your-product
[iii] https://deadline.com/2024/05/ipad-ad-backlash-crushinghugh-grant-justine-bateman-1235909002/
[iv] https://mp.weixin.qq.com/s/S0WtojC8BijmNcLYcILiEQ
[v] Case No.: Tianjin Higher People's Court (2020) Jin Min Shen No. 351
[vi] Case No.: Shanghai Intellectual Property Court (2015) Hu Zhi Min Zhong Zi No. 730
(This article only represents the author's point of view and does not represent the position of intellectual property)
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