ZHANG XIAOYAN V. LEI XIANHE, ZHAO QI AND
SHANDONG BOOK LOVER AUDIO-VIDEO AND BOOK CO., LTD. (2013) MSZ No. 1049, SPC
Cause of action: Copyright dispute
Collegial panel members: Yu Xiaobai | Luo Dian | Li Rong
Keywords: copyright infringement, cinematographic and
television works, historical themes, substantial similarity
Relevant legal provisions: Copyright Law of the People’s Republic of
China, article 2 Regulations on the Implementation of the Copyright Law of the
People’s Republic of China, article 2
Basic facts: Zhang Xiaoyan alleged that she began to
produce and adapt the script for 高原骑兵连 (meaning “The Cavalry Troop on the Plateau”) in
December 1999. In August 2000, shooting began on a 20-episode television series
named 高原骑兵连 (The Cavalry Troop on the Plateau), on which filming was
completed in December 2000. Zhang Xiaoyan was the copyright holder for the
series (hereinafter “Ms. Zhang’s screenplay” shall refer to this script and
television series). Lei Xianhe participated in the production of the series The
Cavalry Troop on the Plateau as honorary producer.
Later, Lei Xianhe
was first scriptwriter and producer, and Zhao Qi was second scriptwriter,
during filming of the television series 最后的骑兵 (The Last Cavalryman) (hereinafter “Mr.
Lei’s screenplay” shall refer to this television series and its script).
On July 1, 2009,
Zhang Xiaoyan bought a DVD of The Last Cavalryman from Shandong Book Lover
Audio-Video and Book Co., Ltd. (hereinafter “Shandong Book Company”), and found
that it was either identical with or similar to Ms. Zhang’s screenplay in terms
of the relationship between the main characters, the storyline and other aspects,
and hence she alleged that Mr. Lei’s screenplay infringed on her own. Zhang
Xiaoyan therefore applied to the Intermediate People’s Court of Jinan Municipality,
asking it to order:
(a) the three
respondents (Lei Xianhe, Zhao Qi and Shandong Book Company) to cease their infringement;
(b) Lei Xianhe to
publish a statement of apology in Qilu Evening News; and
(c) Lei Xianhe to
compensate Zhang Xiaoyan for her losses in the form of script remuneration,
publication and distribution, as well as for adaptation of the script, in the
sum of RMB800,000.
Lei Xianhe argued
that the script of Ms. Zhang’s screenplay had been adapted from a full-length
novel by Zhang Guanlin, entitled “雪域河源” (meaning Snow Fields and River Source), but
that he had initially adapted his own screenplay from Shi Yonggang’s full-length
novel 天苍茫 (meaning The Endless Horizon), as rewritten by Zhao Qi in
the short story 骑马挎枪走天涯 (meaning “Roaming the World on Horseback with a Rifle”).
In the first half of 2000, Zhang Xiaoyan had proposed to work with Lei Xianhe
on a screenplay reflecting life in the cavalry. Lei Xianhe introduced his
adaption of The Endless Horizon to Zhang Xiaoyan and proposed that they make
the film together, but Zhang Xiaoyan refused. In August 2000, Lei Xianhe and
Zhang Xiaoyan signed a cooperative agreement under which Zhang Xiaoyan was in charge
of the shooting and Lei Xianhe was responsible for military security, but did
not participate in artistic creation. Lei Xianhe did not see Zhang Xiaoyan’s script.
Because Mr. Lei’s screenplay was created and broadcast in different time slots
to those of Ms. Zhang’s screenplay, his television series was unlikely to
affect the distribution and broadcast of Ms. Zhang’s screenplay.
The court found
that Ms. Zhang’s screenplay, Mr. Lei’s screenplay, “Roaming the World on Horseback with a
Rifle” and The Endless Horizon were four works that centered on military and historical
subject matter, and which took the demobilization (or downsizing) of cavalry
units during the military’s “streamlining and reorganization” of the
mid-1980s as their main storylines. The short story “Roaming the World on Horseback
with a Rifle” was published in issue #512 of Literature and Art of the People’s
Liberation Army (vol. 12, 1996); the full-length novel The Endless Horizon was
published by the Liberation Army Art Press in April 2001; Ms. Zhang’s screenplay
was broadcast on CCTV-8 in a morning slot, between May 17, 2004, and May 21,
2004, at a rate of four episodes a day; Mr. Lei’s screenplay was broadcast on
CCTV-1, in a primetime evening slot, between May 19 and May 29, 2004, at a rate
of two episodes a day.
“Roaming the World on Horseback with a Rifle” describes
glorious moments in the cavalry’s history, the demobilization of the cavalry,
and the obsession of members of the cavalry (especially Cheng Tian, the company
commander) with cavalry and war horses, as narrated by the company commander,
an instructor and a strong war horse, both before and after the cavalry’s
retirement. “Roaming the World on Horseback with a Rifle” includes
descriptions of: the mysterious pedigree and origins of the war horse (War
Horse No. 15); the harmonious relationship between the company commander and
the war horse; the personalities of the instructor Kong Yuehua and the company
commander, who writes poems; the father of the company commander, who was a
cavalry regiment commander; the important role that the cavalry could play in
any future war; the great efforts that the company commander makes to retain
the cavalry regiment; the eventual retirement of the cavalry regiment; and the
grief of the company commander and war horse at the end of the story. In Mr.
Lei’s screenplay, the horse is also mysterious and, other than that the father
of Chang Wentian, the company commander, is a division commander, Mr. Lei’s
screenplay is basically the same as “Roaming the World on Horseback with a Rifle”
in terms of plot and content.
The Endless
Horizon is a book centered on the legendary and mysterious history of the last
cavalry regiment in the Chinese Army, describing prairie life and the lives of
members of the cavalry, such as the emotional relationship between horse and
human, and the genetic value of the last wild horse, including characters such
as an elder who studies the language of horses and a mysterious prophet, and it
tells a story of the last wild horse to win a race in Hong Kong. In The Endless
Horizon, the father of company commander Cheng Tian was the division commander
of the cavalry, while the regional commander was the first company commander of
Shannan Cavalry Regiment and Cheng Tian’s father’s former subordinate. When he was
young, Cheng Tian secretly fell in love with the regional commander’s daughter,
Lan Jing, but cavalry instructor Wang Qingyi was also in love with Lan Jing,
and so Wang stirred up a romance between Cheng Tian and a genetics researcher,
Liu Keke. At the end of the novel, Cheng Tian dies when he rescues the
researchers, who have become trapped in a marsh. In Mr. Lei’s screenplay, Gao
Bo lends the former cavalry instructor’s horse, “Da Lama”, which runs fast and
steady, and has a good temper, to company commander Chang Wentian for his
temporary use. In the end, the company commander is killed when trying to
arrest a suspect. The relationship between the instructor Kong Yuehua and
company commander Chang Wentian in Mr. Lei’s screenplay is described in similar
terms to those used for the relationship between instructor Wang Qingyi and
company commander Cheng Tian in The Endless Horizon.
The court
commissioned the Copyright Authentication Committee of the Copyright Protection
Center of China to conduct a legal comparison of Ms. Zhang’s and Mr. Lei’s
screenplays, and the Committee concluded that:
(a) the two were
similar in terms of their setting and the relationships between the main
characters;
(b) the main
storylines – that is, of demobilizing (downsizing) the cavalry unit – were
similar; and
(c) the two were
the same or similar in some points of plot, but they were expressed in
different language other than in one instance, which was basically the same.
That plot point
which was expressed in both screenplays in virtually identical ways was the
statement of the male lead in each work that he was “willing to be a herdsman”.
In the fourth episode of Ms. Zhang’s screenplay, Qin Dongji says: “The green
land is my home; treat my horse as my partner; I want to be a herdsman.” In the
18th episode of Mr. Lei’s screenplay, Chang Wentian says: “I treat the green
land as my home and my horse as my partner. Have you seen the film The
Herdsman? I want to be a free herdsman.”
Held: On July 13, 2011, the Intermediate People’s
Court of Jinan Municipality, Shandong Province, delivered its judgment ((2010)
JMSCZ No. 84), in which it rejected all of Zhang Xiaoyan’s claims.
Unconvinced, Zhang
Xiaoyan appealed. On June 14, 2012, the Higher People’s Court of Shandong
Province delivered its judgment ((2011) LMSZZ No. 194), in which it dismissed
the appeal and affirmed the decision at first instance.
Still unconvinced,
Zhang Xiaoyan applied to the Supreme People’s Court for permission to appeal.
On November 28, 2014, after reviewing the facts of the case, the Supreme
People’s Court, refused Zhang Xiaoyan such permission.
Reasoning: The Supreme People’s Court affirmed that
the focus of the dispute in this case is whether the script and television
series of Mr. Lei’s screenplay infringed upon the copyright associated with the
script and television series of Ms. Zhang’s screenplay.
Whether a work
constitutes a copyright infringement shall be judged based on aspects such as
whether the author of the allegedly infringing work has had “access” to (been exposed to) the work of
the copyright holder, and whether the alleged infringing work and the work of
the copyright holder demonstrate “substantial similarity”. None of the parties
in this case disputed the fact that Lei Xianhe had been exposed to Ms. Zhang’s
screenplay; the key question in this case was therefore whether there was any
substantial similarity between the two works.
The Copyright Law
of the People’s Republic of China protects an author’s creative expressions –
that is, not their thoughts or emotions as such, but the creative ways in which
they have expressed those thoughts or emotions. “Thoughts”, as defined here, include understandings
of material existence, objective facts, human emotions and thought processes.
Thoughts are objects that a person describes and demonstrates, and they fall
within the ambit of subjectivity. “Creativity” is a process that others can
perceive and during which the creator illustrates their ideas by recourse to
artistic forms, using material media to convert their imagination intoimage,
and to transform something abstract, subjective or intangible into something
concrete, objective or tangible. Expressions that are formed creatively and
which demonstrate originality are a type of work protected under the Copyright Law.
Such protected expressions are found not only in the text, color, lines and
symbols that might appear in the final form of a work; when the content of a
work manifests the author’s thoughts and emotions, the content is
also a type of expression protected under the Copyright Law. However, creative ideas,
source material or information that are in the public domain, as well as some
forms of creativity, necessary scenes or expressions that are unique or limited
are excluded from the scope of protection under the Copyright Law. “Necessary scenes” can be defined as those events, roles,
settings or scenes that are inevitable when telling a particular story or
exercising creativity with a particular theme. Such indispensable ways of expressing
a particular theme are not protected under the Copyright Law. The term “expressions that are unique or limited” refers to those
instances in which a certain thought can be expressed in only one or a limited
number of ways. Such expressions are not granted copyright protection. When
judging whether there is any substantial similarity between Mr. Lei’s screenplay and Ms. Zhang’s screenplay, comparisons shall be made of
the expressions of ideas and emotions in the two works, whether or not such expression
is the result of the authors’ choices, and whether the selections, arrangements
and designs of the plot, sets, scenes, along with other things expressed in the
works, are the same or similar. The courts shall not depart from expressions to
look at aspects such as thoughts, emotions, creative ideas and objects as such,
among other things.
The Supreme People’s Court based its judgment on analysis of
the following aspects, in combination with Zhang Xiaoyan’s claims.
Zhang Xiaoyan
claims that the main storylines of both Mr. Lei’s and Ms. Zhang’s screenplays are the same. Because both
Mr. Lei’s screenplay and “Roaming the World on Horseback with a
Rifle” closely follow the theme and situation of “a hero’s dead end, a cavalryman’s swan song”, and describe stories about “the last cavalryman” before and after
demobilization, it can be determined that the main storylines in Mr. Lei’s screenplay, as well as the overall thread
and sequence of ideas, are taken from “Roaming the World on Horseback with a
Rifle”. Ms. Zhang’s screenplay, Mr. Lei’s screenplay, “Roaming the World on Horseback with a
Rifle” and The Endless Horizon are four works that center on military
and historical subject matters, and which take as their main focus the
demobilization (or downsizing) of cavalry units during the military’s efforts to “streamline and reorganize” in the mid-1980s. This storyline is in
the public domain and cannot be monopolized by individuals. Each of the authors
of those four works therefore has the right to use, in their own way, the
historical subject matter and to create works based on it. Consequently, even
if there are some similarities between the main storyline in Mr. Lei’s screenplay and that in Ms. Zhang’s screenplay, because the main storyline
is not protected under the Copyright Law and the main storyline in Mr. Lei’s screenplay is taken from “Roaming the World on Horseback with a
Rifle”, which was the earliest of the four works published, it
cannot be concluded that Mr. Lei’s screenplay plagiarizes Ms. Zhang’s screenplay.
Zhang Xiaoyan also
claimed that the main characters and their relationships are the same or
similar in Mr. Lei’s screenplay and Ms. Zhang’s screenplay. The Court noted that the
four works are all on military subject matter and take the demobilization (or
downsizing) of cavalry units during a certain historical period as their main
storyline. Other than “Roaming the World on Horseback with a
Rifle”, which is limited by its length as a short story and
thus does not include any love triangle or relationship between members of the
cavalry and civilians, the other three works all cover such main characters and
relationships between the main characters, including the love triangle, the
superior–subordinate relationships between officers and soldiers,
and the relationship between members of the cavalry and civilians. These ways
of depicting this subject matter inevitably involve necessary scenes that
cannot be avoided in a work about the military subject matter. Because the
means of giving expression to this subject matter are limited, they are not
protected under the Copyright Law.
Zhang Xiaoyan
claimed too that the verbal expressions and the storylines in Mr. Lei’s screenplay and Ms. Zhang’s screenplay are the same or similar. In
terms of verbal expressions, the phrases “be a free herdsman” in Mr. Lei’s screenplay and “be a herdsman” in Ms. Zhang’s screenplay are basically the same.
However, these verbal expressions are a type of phrase customarily used in a
specific context; they are not original expressions. In terms of the
storylines, a storyline that is used to manifest an author’s thoughts and emotions falls within the
ambit of “expressions”. A storyline that has originality should
be protected under the Copyright Law – but one cannot necessarily draw a conclusion
that the storylines are the same or similar just because some elements of the
storylines are the same or similar. In this case, the identical or similar
parts of the four works largely derive from source material in the public domain
or source material that otherwise lacks originality. In some of these parts, only
some elements in the storyline are the same, but the specific words and the
meanings expressed as the plot unfolds are not the same. The second instance court
held that six plot points were the same or similar in Mr. Lei’s and Ms. Zhang’s screenplays. Among these points were
included those relating to the superior’s relationship with a former subordinate
and to the assigning of a temporary mount, among other things, and it was noted
that similar plot content appears in The Endless Horizon. Although the plot
structure in other parts of the two screenplays is the same or similar, some of
these examples show that only a few elements used in their expression are the
same or similar. The court concluded that those parts of the two screenplays
with the same or similar plot content are scarce and insignificant.
Generally
speaking, in Mr. Lei’s screenplay and Ms. Zhang’s screenplay, the specific plot
development is different, the focus of depiction is different, the personalities
of the lead characters are different and the endings are different. Identical
or similar plot points account for only an extremely low proportion in Mr. Lei’s screenplay and are of secondary
importance in its entire story arc. They do not constitute the main parts of
Mr. Lei’s screenplay, and will not cause the readers and viewers
to have the same or similar experiences in appreciating the two works. The Court
therefore cannot draw the conclusion that the two works have any substantial
similarity. Article 15 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application
of Law in the Adjudication of Copyright Civil Disputes provides that where
works on the same subject matter are created by different authors, and the expression
of each work is completed independently and has originality, the courts should
determine that each author enjoys independent copyrights. The Court
consequently held that Mr. Lei’s screenplay and Ms. Zhang’s screenplay were works on the same
subject matter created independently by different authors. Both series have
originality and each author enjoys independent copyright.