Recently, Jiangsu High People’s Court issued the Ten Typical Cases of Jiangsu Courts in 2018. The case that Haohui ZHOU accused Zheng YU, Jing ZHOU and Mango Studios of infringing upon the adaptation right and the right of making cinematographic works of works was outstanding among 1,862,204 cases trialed, executed and closed by Jiangsu courts in 2018, which was selected as the sole case about intellectual property rights. The case involved a copyright dispute over the film and television drama Cosmetology High. Lawyer Jinlin SUN, a partner of JT&N responded to the lawsuit on behalf of Mango Studios, the production company of Cosmetology High, winning the lawsuit for four years.
Haohui ZHOU is the author of the novel Evil Hypnotist. The novel was published and distributed by Tongxin Publishing House in April 2013, with a total of 10 chapters and the epilogue and 298,000 Chinese characters.
Episodes 29 and 30 of the TV series Cosmetology High were premiered on Hunan TV on December 21, 2014. The end of the series was marked with producer and editor of Zheng YU, screenwriter Jing ZHOU, and production unit Hunan eTV Media Culture Co., Ltd. (later renamed Mango Studios), etc. The producer was Zheng YU Studio. The duration of episode 29 and 30 of Cosmetology High is 57′46″ and 31′46″ respectively, with total duration of 89′32″.
Haohui ZHOU appealed to the court to order the six defendants including Zheng YU, Jing ZHOU and Mango Studios to stop the infringement, publicly apologize, eliminate the influence and compensate for the losses, citing the six defendants of infringing upon the adaptation right and the right of making cinematographic works of Evil Hypnotist.
Yangzhou Intermediate People’s Court considered that when judging whether the two works are substantially similar, it should compare whether the author’s option, choice, arrangement and design in the expression of the two works are the same or similar, and whether the readers or the audience have the same or similar appreciation experience. The main story line, plot, sequence of story structure, character setup and character relationship of the novel Evil Hypnotist and the episodes 29 and 30 of Cosmetology High are different. The use of a small amount of elements in Haohui ZHOU’s works by the accused belongs to the concept of reference. Therefore, the accused works are not substantially similar to Haohui ZHOU’s works, and the claim of Haohui ZHOU that the six defendants infringed his adaptation right and the right of making cinematographic works s cannot be established.
According to this, Yangzhou Intermediate People’s Court made the No. 00015 (2015) YZMCZ civil judgment on November 7, 2016 that the claim of Haohui ZHOU was rejected. And then, Haohui ZHOU appealed against the first-instance judgment.
Jiangsu High People’s Court considered that through listening to the opinions of the parties concerned in detail during the trial, the episodes 29 and 30 of the accused works Cosmetology High did not use the main story line, specific plot sequence, starting and ending, main story content and other substantive contents of Haohui ZHOU’s works Evil Hypnotist. In addition, there is significant difference on characters and character relation, which does not constitute an infringement on the adaptation right of Evil Hypnotist. In creating hypnotic plots, the accused works only drew on the ideas of Haohui ZHOU’s works. According to the “dichotomy of idea and expression”, the creative elements related to hypnosis in Haohui ZHOU’s works, such as “biting people”, “flying birds jumping off buildings”, “throwing water cups”, etc., finally presented fall into the thought category through gradual abstraction from bottom to top by using the analytical framework of pyramid theory, and should not be controlled by the adaptation right of Haohui ZHOU’s works. The three hypnotic passages in Haohui ZHOU’s works are at the level of concrete expression, showing different logical sequences and dramatic functions in the whole story of the two works. Therefore, the audience will not have the same or substantially similar appreciation experience for the two works, at most, the similar impression for some clips. At the same time, the existing evidence proves that before the Evil Hypnotist of Haohui ZHOU, there were works created with similar hypnotic elements in the public domain, which further shows that the protection of the three hypnotic clips should be strictly limited to the expression level, and the protection scope cannot be arbitrarily expanded.
According to this, Jiangsu High People’s Court handed down the No. 236 (2017) SMZ civil judgment that the appeal was rejected and upheld the original judgment on December 26, 2018.
This is a typical copyright case involving a dispute over adaptation rights. The paragraph 1 (14) of Article 10 of the Copyright Law stipulates that the control range of the adaptation right includes not only the right of the copyright owner to adapt the work himself, but also the right to authorize others to adapt the work. Since the adaptation right protects the derivative creation interests based on the original work, if others use only a small amount of partial fragments or story plots of the original work, and it is not enough to produce new works based on the original work, it should not be included in the scope of protection of the adaptation right. The behaviors involved can be controlled by the reproduction right or be included in the scope of reasonable use.
In recent years, with the rapid development of the film and television industry, there is a growing trend of disputes arising from the adaptation right. The judgment was confirmed by discussing the boundary of the adaptation right, showing full respect for the laws of literary and artistic creation, which is of great value for promoting the prosperity and development of literary and artistic creation.