HongFangLaw ~ Law Updates ~ n’ 80
1 April 2019
Can artists continue to use stage name registered by an agency after their management contract ends?
Co-Author: Mamie Mai, Shirley Lin
Recently, the Internet has witnessed a heated debate over the use of artists’ and musicians’ stage names after their cooperation with their firms sever – the negotiation over the ownership of the girl group name “S.H.E” stagnated; the Hong Kong singer-songwriter G.E.M walked out while the adopted name had already been registered by her agency in multiple classes. All these set the public suspecting in what position stage names stand and to which party they belong to. A look into a similar dispute may give us the answers.
The main case we will look into is one of Beijing Shangjia First-line Music Culture Communication Co., Ltd., and Niu Chunhua over the unfair competition dispute:
This case focused on an unfair-competition lawsuit over the reassignment of a stage name. The Plaintiff Niu Chunhua debuted as Yun Feifei after she entered into a management contract with Beijing Shangjiayixian Musical, and Cultural Communication Co., Ltd. (hereinafter “Shangjiayixian Co.”) in 2007. After their agency relationship came to an end in 2012, the firm continued to use the name Yun Feifei, but on another artist Bian Yiran. Together with her new agency, Niu Chunhua resorted to litigation against the former two parties, requesting to stop the infringement and to be granted damages. On the other hand, Shangjiayixian Co. maintained that it had registered the trademark “Yun Feifei” and thereby enjoyed legally protected ownership thereof.
According to the presiding court:
Citizens in the nation enjoy the right of the name and thus are entitled to determine, use or change their names via due process, which is protected from interference, usurpation, and false representation, as set forth in the General Principles of the Civil Law. In the Anti-Unfair Competition Law, business operators are banned from using without permission a personal name of others in misleading ways, which is a violation of the principle of good faith and generally accepted commercial ethics. Pursuant to the Interpretation of the Supreme People’s Court on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition, the name of any natural person used in the business operation of commodities should be deemed as a use for the purpose of the Anti-Unfair Competition Law. Based on the above, a person may have a real name, a pen name, a stage name, etc. The rights thereto are personal. In addition, when names take on the function to identify commodities and influence consumer decisions, an economic aspect comes to form.
Therefore, the name “Yun Feifei” is of both personal and economic nature. On the first front, the name belongs to the Plaintiff Niu Chunhua and does not naturally become detached from her as the agency contract ends. Economically, “Yun Feifei” has also been bound up with Niu Chunhua as a commercial icon. The association given rise remains regardless of the relationship between the artist and the firm.
From a trademark perspective, it is if trademark application and registration should not impair a third party’s prior right. However, the trademark “Yun Feifei” was filed when Niu Chunhua’s popularity and influence had been established under the name, which was also in Shangjiayixian Co.’s awareness. Therefore, the Defendant’s trademark is infringing and should not be cited against the plaintiff.
The court ruled accordingly that the Defendants Shangjiayixian Co. and the artist Bian Yiran shall not use the stage name “YunFeifei” for show business and shall compensate for the Plaintiffs’ economic loss.
It may be concluded from the above that stage names are within the range of protection for the right of the name, and therefore also have personal and economic bearings. Talent agencies that preemptively seek registration of their affiliated artists’ stage names do not certainly become entitled to use those names for the registration alone. In our opinions, if no rights to or interests in stage names are waived by an artist when signing a management contract, the names should be deemed in the artist’s exclusive ownership and should be able to be used by the artist even if the cooperation dissolved.
Anti-unfair competition dispute between Beijing Shangjiayixian Musical and Cultural Communication Co., Ltd. and Niu Chunhua et al. (Judgment No. (2014) San-Zhong-Min-Zhong-Zi 07228 by the Beijing No. 3 Intermediate People’s Court.)