Beijing, August 17 (Reporter Song Yusheng) The case of famous writer Jin Yong v. Jiangnan, the author of "Fan Works" and "Teenagers Here", was publicly pronounced in the Tianhe District People’s Court of Guangzhou on the 16th. This dispute, known as "the first case of a fan’s work in the mainland", was judged by the first instance that Jiangnan and other three defendants constituted unfair competition, and Jin Yong was awarded 1.88 million yuan.
"Fanwork" refers to a re-created work by using elements such as characters, story lines or background settings in original cartoons, animations, novels and film and television works. In recent years, there are many such works on the Internet. Does this case indicate that all the works of the same person involve similar problems?
In fact, as early as 2016, the dispute between Jin Yong and Jiangnan entered the public eye. At that time, Jin Yong filed a complaint with the Tianhe District People’s Court in Guangzhou, suing Jiangnan and Beijing United Publishing Co., Ltd., Beijing Jingdian Bowei Culture Media Co., Ltd. and Guangzhou Book Center Co., Ltd. for infringement.
Jiangnan is located in Beijing, and the Guangzhou court does not have his address, which leads to Jiangnan not receiving the relevant documents, being publicized by the court and being hanged on the Internet by netizens.
In April, 2017, the case was officially opened. The core focus of the court debate between the two sides was whether the names, relationships, personality characteristics and storylines of the characters such as Ling Huchong, Guo Jing and Huang Rong in "Teenagers Here" belonged to the ideological category, or were they original expressions, and whether they were protected by China copyright law.
Jin Yongfang believes that the above-mentioned original martial arts characters have formed a distinctive and classic image in public consciousness in the spread of decades, with strong recognition. Without permission, "The Boys Here" uses a lot of these original elements to attract readers, seek competitive advantages and make profits, which infringes on Jin Yong’s copyright and constitutes unfair competition.
On the other hand, Jiangnan believes that there is a fundamental difference between Boys Here and Jin Yong’s works. The original expressive parts of Jin Yong’s works are not used in the works, and no changes are involved in Jin Yong’s works themselves.
After the judgment of the first instance, the Tianhe District People’s Court published the comparison between Jin Yong’s and Jiangnan’s works on its WeChat WeChat official account.
The reporter noticed that the names of the characters in "The Boys Here" are the same as a large number of characters in Jin Yong’s works. Among them, 27 are the same as The Legend of the Condor Heroes, including Guo Jing, Yang Kang, Huang Rong, Ouyang Ke, Ouyang Feng and Huang Yaoshi. There are 13 in total that are the same as Jin Yong’s the legendary swordsman, including Ling Huchong, Lin Pingzhi, Duhu seeking defeat, Dong Fangbubai, etc. There are 18 in total, including Wang Yuyan, Duan Yu, Qiao Feng, Duan Zhu and Duan Zi. There are seven similar works to Jin Yong’s The Condor Heroes, including Guo Jing, Huang Rong, Little Dragon Girl, Yin Zhiping and Lu Wushuang.
The court held that "Teenagers here" was not based on Jin Yong’s works in terms of character relationship, personality characteristics and story plot, but wrote a brand-new story beginning, development, climax and ending around the characters in different times and spatial backgrounds, creating campus youth literature works different from the plaintiff’s works, which would not lead readers to have the same or similar appreciation experience. On the whole, it is not enough to constitute infringement, so it is judged that Jiangnan enjoys complete copyright.
At the same time, the court held that although the names of characters, relationships between characters and other elements in Jin Yong’s works do not constitute original expressions and cannot be protected as objects of copyright, it does not mean that others can use the above elements freely, freely and indefinitely. Jiangnan’s move to borrow a name is indeed suspected of profiting from the situation, which constitutes unfair competition to a certain extent.
In addition, the court also pointed out that "The Boys Here" and Jin Yong’s works are the same or similar in terms of characters’ names and relationships, but they belong to martial arts novels and campus youth novels in literary works, and their readers are different, and there is still room for coexistence. If Jiangnan is republished after obtaining Jin Yong’s understanding and permission, it will better meet the diverse needs of readers and be conducive to cultural prosperity.
Writer Jiangnan also issued a statement on the same day, saying that it is good news that there is no copyright infringement, and "unfair competition" is a resounding alarm. The statement also said that it is not a happy thing to go to court with an author whom you respect, but "it should be robbed because of its name."
As of press time, Jin Yong did not respond to this matter.
The reporter also interviewed a third-party lawyer. Chen Ruojian, the managing partner of Duan Heduan Law Firm, said that the determination of unfair competition has little to do with whether it is profitable or not. Generally, it depends on whether the commercial interests of others are damaged.
"In this case, Mr. Jin Yong’s works are also recognized as well-known works, which are actually commercial novels. If you borrow the elements of well-known commodities for commercial activities, it should constitute unfair competition. " Chen Ruojian said.
Then, do "fan works" recreated with the names of characters in well-known works constitute copyright infringement or unfair competition?
Chen Ruojian thinks this needs specific analysis. "It depends on the specific plot of the work here, and whether it will cause misunderstanding among readers."
Lawyer Chai Zheng said that from the perspective of intellectual property protection and encouraging innovation, works with their own complete intellectual property rights are definitely better than "famous brands". "If you must learn from, quote, or pay tribute to the author, you should at least get the author’s consent."
At the same time, Chai Zheng pointed out that everyone can’t think that as long as the work is not profitable, it will not involve infringement.
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