Constituent Elements of Works Series(15)

Film Titles, Actors, and Characters: Qualitative Analysis and Determination of Responsibility

Yesterday I wrote that in an administrative penalty case triggered by similar reasons, the city supervisor determined that the party concerned constituted false publicity. The plaintiff in this case also made it clear that the following acts were acts of unfair competition with false publicity, but confirmed at the trial that they claimed confusion:

• Without the legal authorization of the rights holder, the seven defendants modified the publicity photos of the leading actors of the works involved in the case without authorization, and then used the names of the works involved in the case and the promotional photos of the leading actors on the infringing products produced and sold by them, which could easily make relevant consumers believe that there was a specific connection between the infringing products and the films, publicity, posters and film copyright owners involved in the case. (At the time of the plaintiff's lawsuit, it was clear that such acts were acts of unfair competition with false advertising, and the court later reviewed and determined based on the confusing acts that it confirmed and asserted at trial.) ）

The court applied Article 6 of the Anti-Corruption Law to conduct a review, and finally found that the sued act violated the provisions of Article 6, Paragraph 4 of the Anti-Corruption Law, and the defendants should be jointly and severally liable. The Court held that:

• The defendants' defenses on the basis of the ownership authorization of the film involved in the case could not be established, therefore, the relevant use rights of the film "The Crowd" obtained by Heilongjiang S Company and Liaoning S Company based on the authorization link involved in the case could not be established;
• Heilongjiang S Company and Liaoning S Company used the name of the work involved in the case, "The Crowd", and the promotional photos of the leading actors, when promoting and selling the products, which could easily mislead the relevant public into believing that there was a specific connection with the film "The Crowd" involved in the case;
• The judgment reads, "According to the foregoing analysis and determination, the film title and the rights of the characters involved in The Crowd belong to the rights and interests of unfair competition protected by the Anti-Unfair Competition Law, and the alleged acts objectively caused the confusion of the rights holder of the film involved in the case, The Crowd, which authorizes the joint use of the film title and the promotional photos of the film characters, and deprives the actual rights holder of The Crowd of Persons of the commercial value and transaction opportunities that can be obtained by the actual rights holder of The Crowd through self-use or licensing to others to use the film. violates the principles of business ethics and good faith, and constitutes an act of unfair competition".

In other words, although the various licensing agreements signed between the seven defendants were formally connected with each other, the court held that there was a problem with the source of the authorization, that is, Beijing Company A and Beijing AAA, which were engaged in mixed operations, could not prove that they enjoyed the relevant copyright rights and publicity rights to the films involved in the case (the reasons for this failure may be seen in other ongoing litigations, and we will see when judgments come out in the future):

• Neither company signed the film for public release, and the plaintiff, as the rights holder, also made it clear that neither company was the rights holder of the film involved in the case, and neither company had the right to publicize and promote it externally;
• Article 12 of the Copyright Law stipulates that a natural person, legal person or other organization that signs a work is the author, and the corresponding rights exist in the work, unless there is evidence to the contrary;
• The two companies: 1) did not submit the contract, power of attorney, and other relevant evidence signed by them and the relevant rights holders of the film involved in the case to prove their rights status within the time limit for presenting evidence; 2) only arguing that Baidu Encyclopedia and other webpages show that Beijing Star Charm Group Co., Ltd. is a joint producer;
• The court held that Baidu Encyclopedia and others were not legal copyright rights publicity websites, and based on the evidence adduced by the two companies, they did not confirm the fact that the two companies enjoyed the copyright of the film and the right to publicize and promote it to the outside world.

On this basis, the court found the liability of the other defendants:

• About Guangdong Company B:

1) Guangdong Company B asserted that Beijing Company A was the co-producer of the film, and that after obtaining authorization from the company for the publicity and distribution of film and television media, it authorized Nanjing Company C to act as a bona fide third party in the publicity and distribution of the film involved in the case.

2) The court held that Guangdong Company B did not provide evidence to prove that it had actually examined the relevant evidence of the identity of the co-producer of the film involved in the case from Beijing Company A, and that the title of the film publicly released by the film involved in the case did not show that Beijing Company A was the co-producer of the film involved in the case, and its defense of a bona fide third party was inconsistent with the facts and was not accepted.

3) On this basis, it was determined that Guangdong Company B had not fulfilled its obligation to fully review the identity of Beijing Company A's co-producer, and then signed the Film and Television Media Publicity and Promotion Service Contract with it, and issued a power of attorney to Nanjing Company C, lacking a right basis.

• About Nanjing Company C:

1) Nanjing Company C argued that it had obtained the relevant authorization from Beijing Company A and Guangdong Company B before making the authorization to Company D. It can be seen from "Maoyan" that Beijing Company A is the co-producer of the film "The Crowd", and it is very natural for a general company to think that Beijing Company A is the copyright owner. If Beijing Company A and Guangdong Company B did not infringe the copyright of the film involved in the case, the liability should be borne by the two companies.

2) The court held that within the time limit for presenting evidence, there was no evidence to prove that Nanjing Company C had actually reviewed the source of ownership before signing the "Cooperation Agreement on Film and Television Publicity and Promotion Channels" with Company D on July 6, 2021 and the "Power of Attorney for Film Promotion" signed by Nanjing Company C with Company D<人潮汹涌>, so Nanjing Company C authorized Company D to authorize the film and television materials such as stills, posters, and promotional materials of the film involved in the case "The Crowd" (including the starring Andy Lau) to Heilongjiang S Company. The joint promotion of the company's Crab Manor brand holiday gift series products also lacks a right basis.

• About Company D:

1) Company D argued that it had a legal source of authorization (i.e., Nanjing Company C), and that the scope of external authorization was the same as that of Nanjing Company C's authorization to Company D. Even if there is infringement, the liability for infringement shall be borne by the party who committed the infringement (Heilongjiang S Company and Liaoning S Company that changed the pictures without authorization); In addition, based on the entrustment contract relationship with Nanjing Company C, the legal consequences of the agency act were also directly attributable to Nanjing Company C.

2) The court held that, based on the aforesaid analysis and determination, Nanjing Company C did not provide evidence of film ownership to Company D before Company D and Heilongjiang Company S signed the relevant authorization documents, so it could be determined that Company D did not fully examine the ownership of the film, and it was impossible to issue evidence of film ownership to Heilongjiang Company S; Moreover, the scope of authorization granted by Company D to Heilongjiang Company S was beyond the scope of authorization granted by Nanjing Company C to Company D, so it can be confirmed that the authorization of Company D also lacked a basis for rights.

Among them, beyond the scope of upstream authorization, it refers to: Nanjing Company C and Company D signed the "Cooperation Agreement on Film and Television Publicity and Promotion Channels", which clearly stipulates that "Party A shall provide Party B with relevant film and television stills and materials for film promotion and publicity; Party B shall not design the material graphics by itself, and if there is any, Party A must be informed and approved before it can be used", but when Company D signed the "Film and Television Copyright License Contract" with Heilongjiang S Company, Heilongjiang S Company was authorized to "reasonably use stills to combine its own products with the film and television linkage publicity, and Party B designed its own posters according to the products".

• On this basis, the court further found that Heilongjiang S Company and D Company did not fully review the rights of the film before signing the contract, and therefore, the defense of Company D and Heilongjiang S Company that they had fulfilled their duty of reasonable review and care was inconsistent with the facts and was not accepted.

Reference: December 12, 2023 (2023) Yue 0111 Min Chu No. 17041