Grey zone: application of China’s copyright-related laws and policies in the real world.
Explanation of China’s copyright-related lIn the industrial chain of this grey area of copyright, why did the star’s team ignore the infringement, and where is the “bottom line” of the star’s tolerance for infringement?
“The number of cases concerning celebrity copyright disputes is high every year, but most of them are about businesses using celebrities’ images for commercial purposes without their permission, such as snack endorsements, property endorsements.” Zile Zhang, a lawyer specialising in entertainment litigation, said the cost of infringement of celebrity’s portrait rights is now very low, resulting in a large number of infringements.
In the newly amended law, the Civil Code of the People’s Republic of China has removed the element of “for non-profit purposes”, and the following elements should be met for infringement of celebrity portrait rights:
(i) Without the person’s consent
According to Article 1019 of the Civil Code of the People’s Republic of China, no one can use the portrait of a person without the consent of the owner of the portrait. The use must be authorised by the person himself in an express manner. And if the time and manner of use are agreed, the person using the portrait must not exceed the scope of the authorization. Otherwise, it constitutes an infringement of the portrait right of another person.
(ii) Implementation of the act of using another person’s portrait right
The use of portraits is an objective element that constitutes an infringement of the right to portrait. For example, the intentional use of technical means to forge or smear the portrait of the celebrity or other public figure.
(iii) Subjective fault
Liability for infringement of portrait rights belongs to fault liability. The person who infringes the right of the portrait is liable for the infringement only if he/she is at fault. If the perpetrator does not have the consent of the right holder, he or she is presumed to be subjectively at fault.
(iv) Result of damage
The tortfeasor is liable for damages, the infringement of the right to portrait caused the results of the damage. The result of damage specifically includes property damage and moral damage. If either of these damages is caused, the right holder is entitled to claim compensation.
“In fact, the newly revised law is basically aimed at businesses using the image of a star without permission, which can have a huge impact on the star’s business value. So, this kind of infringement will always attract more attention from the agency,” Zile Zhang says agencies usually ignore cases of professional fans posting and selling images of celebrities.
“If it’s not malicious graffiti or the use of celebrity images to sell unrelated merchandise (such as milk tea shops or snack bars write some signals such like “XX celebrity endorsements”), star’s teams generally laugh it off.”
“As long as the behaviour is not too excessive, for example, if you are not making super large profits or cheating fans, the celebrity team will not manage it specifically. In my career, I have encountered very few lawsuits of this type. There are simply too many rights and responsibilities involved. It is difficult to obtain evidence, and the litigation cycle is too long.” Zile Zhang said that the result of the lawsuit is just supervise and urge infringer to stop the infringement, apologise and compensate for the damages, which is not proportional to a large amount of energy that has to be invested in obtaining evidence.
Through the understanding of similar cases that Zile Zhang has previously contacted, the selling of photobook and peripheral products is usually done through chat groups or niche trading platforms, and the names of the products are always avoid using sensitive words such as “Photobook”, “video” and “event”. This has made the process of obtaining evidence of infringement very cumbersome.
“When agencies and stars are got the information about the identity of the infringer, they often drop the lawsuit because they don’t want to affect the young person’s future. Our usual method of dealing with this case is to send a letter of warning and to have a lawyer or the agent of the star contact these people privately to communicate, and the brokerage company usually has the contact information of the Fansite administrator.”
What the company manages relatively strictly is the right to distribute the celebrity’s work, as opposed to the images of the celebrities taken by the Fansite administrator. The most common form of infringement for which lawyers are contacted is when professional fans upload videos of their idol’s performances at concerts to social media platforms or compilation on USB Flash disk for sale.
In the newly amended copyright law, the reproduction、distribution of a recording which has the performance with sound or video recording functions, or dissemination to the public through the performance of information networks, without the permission of the performer, causes infringement by the performer. And added the provision of copyright management organization that the star’s agency collects royalties from users according to the authorisation, and the royalties should be determined by negotiation between copyright owners.
Jane Chen, a staff member of a singer’s team responsible for publicity and publication, said about the right of dissemination “Sometimes it involves the interests of the producer and the broadcasting platform, as well as our planned promotions, the management of this area will be a stricter. Because event like ‘launches’ and ‘premieres’ are only open to media, agent will prepare the press release for the song to media to announce, leaking materials in advance will disrupt the whole plan.”
Fan community, at the behest of the celebrity’s publicity team, often do subtitle and edited material in different languages for films and TV shows starring the celebrity. When doing this, the fanclub usually double confirms the copyright with the agency and the broadcast platform.
As the legal process is too cumbersome and time-consuming, and some infringements may be unintentional by users, broadcasters have a strict copyright review mechanism to avoid being sued for infringing other company’s copyrights. Previously, Tencent Video (a broadcasting platform) sued Tiktok (a short video platform) for infringing the broadcasting rights of a TV series, demanding 100 million yuan in damages.
“Some works are exclusively broadcast by Youku (a broadcasting platform), while others are jointly broadcast by two platforms. Different platforms have different requirements for labels and video formats, which has caused us a lot of trouble. Sometimes we have to export a video in three different formats, and it’s not always possible to meet the requirements of each platform,” says by official fanclub’s leader Xiaoxiao Bai, who has a lot of complaints about the broadcast copyrights of celebrities.
“If an account infringes three times, it will be banned for 30 days, after which any further infringements may even result in a ban.” Some platforms can only pass videos that are less than five minutes long, and if they are longer than that, they are considered as infringements. We can only cut the video into five-minute segments because this is an automatic review by the platform, neither the staff nor the agency has any solution.”
The second is the infringement caused to the star in fan fiction, which usually involves the right to a name and reputation.
Name rights, as the name suggests, are the right to use a star’s name in fan creation. Infringement of the right of reputation, on the other hand, is generally done in the form of insult and defamation. Having insulted and defamatory sentences in article will result in a lowering of the star’s social rating and constitute a violation of the right to reputation. Insulting, i.e., directly humiliating a person. Defamation, i.e., humiliating a person by making up a story out of nothing, for example, writing a pornographic article.
“This kind of infringement is actually very difficult to be determined because there are so many fanfics nowadays and because some people do not expressly identify the star when writing novels, just choose to write under a pseudonym or a name such as a harmonic. It is a very difficult thing to prove that this star in the article is my client when submitting evidence,” Zile Zhang said she has never been in a lawsuit like this in her career, because it is very difficult to obtain evidence, and some articles are too excessive because once the lawsuit is filed, there is a suspicion of pigeon-holing, so the damage to the parties will be even greater.
“The most common way we deal with this is to send a lawyer’s letter or report the article to the platform by real name, in the most understated way possible to minimise the damage to the celebrity,” Zile Zhang says a lawyer’s letter is one of the most common methods used by celebrities at this time unless it is repeatedly happen by same person, then they will brought to court.
As for the infringement of celebrities’ privacy, Zile Zhang said, “Stars are public figures themselves, so the definition of privacy is very vague, for example, some non-public shooting can neither be considered private nor non-private time. So when the Fansite administrator shoot the stars in these places, it is often difficult for the staff to stop them.”
“In China, there does not have a complete law to clearly delineate the scope of privacy of public figures and the corresponding measures to protect their rights, Causing the media to expose the private time of public figures to public platforms on a regular basis The lack of legal integrity makes it impossible for both media reports and judicial trials to feel where the scale lies.”
There are still large loopholes in China’s laws regarding the privacy rights of public figures, and the protection of such people as stars has to be relatively postponed. While celebrities have a greater duty of tolerance than ordinary people, they cannot go too far. Although this kind of infringement is more difficult to prove, the good news is that public morality is now improving and the fans have very few cases where repeated attempts to discourage them are not heeded. The protection of celebrity copyright is still further refined and detailed. With various forms of communication change, Chinese law is gradually reaching full protection for all aspects of celebrity copyright. For some cases of copyright infringement, the celebrity’s team has a mature legal team and system of dealing with these problems. Some of them which are dealt with in a small way for mutual benefit, while others are dealt with in a low-key manner to protect the rights of the celebrity as much as possible.