HongFangLaw ~ Chinese IP Law Updates ~ n’ 64
17 August 2018

“Ghost Blows Out the Light” vs. “Captain Touchers of Gold”
Copyright dispute arises over an author’s novel re-creation containing elements of a previous novel that had its copyrights acquired

Co-authors:?Mamie Mai, Shirley Lin

Source Material:

Judgment No. (2015) PMS (Z) CZ838

CaseOverview:

Shanghai Xuanting Entertainment Information Technology Co., Ltd. (“Xuanting Co.”) has acquired the economic rights on the series novel “Ghost Blows Out the Light” from the author Zhang Muye (pen name: Tianxia Bachang). They have reached a contractual agreement that Xuanting Co., with the assigned rights, is entitled to develop works and products derivative from the novel in question, as it pleases, based on market demand. On the other hand, the author Zhang Muye, in light of the effective agreement, can no longer create any work identical to or similar to the novel with his real name or pen name, or with the book title or the major chapter titles of “Ghost Blows Out the Light”.

After some time from the agreement, Zhang Muye wrote and published a new novel “Nine-Phantom General of the Captain Touchers of Gold” (“Captain Touchers of Gold”), in which an array of ingredients of “Ghost Blows Out the Light” are used, including the names, images of the characters and their relationships, including the methods, taboos, and rules for tomb raiding. Therefore, Xuanting Co. sued Zhang Muye, alleging the defendant’s infringement of the company among other rights and interests concerning the copyrights it has on “Ghost Blows Out the Light”.

Court Opinions:

The court has examined the use by the author of such forming parts of the novel from 1) the parties’ contractual agreement and 2) protection of the elements in question (e.g. character names and images).

Regarding the first point, the court is of the opinion that the author should be allowed to produce derivative works with the elements of his/her writing such as the characters he/she has given life to. This is in line with the spirit underlying the legislation of the Copyright Law that aims to flourish the literary and artistic industry, which eventually benefits audiences at large. Bearing the spirit of the law in mind, interpretations of the agreement between the plaintiff and the defendant should be strictly literal, limiting extensions to those backed by solid evidence. As far as what the parties have agreed, the assignment of the economic rights to Xuanting Co. is general with no exclusion. The author Zhang Muye has not been barred from re-creating activities with the objects contained in the writings of “Ghost Blows Out the Light”.

The case also hinges on whether such elements in question deserve copyright protection. According to the court, works that could be copyrighted should be external expressions objectively perceivable by others. However, building blocks of a literary work such as the characters therein hardly constitute such expressions, as they generally serve as no more than just media via which the plot develops and tools with which the author works on storytelling. Therefore, to determine whether the alleged infringement is established, the stories as a whole should be compared. “CaptainTouchers of Gold” is different from “Ghost Blows Out the Light” in this sense. The court has thus dismissed the plaintiff’s claims against the defendant for copyright infringement, citing insufficient evidence for the argument that elements of the story are entitled to copyright protection.

HFL Comments:

The case provides two approaches to viewing an author’s re-creation with the ingredients of a work whose copyrights have been assigned. One way to go is to look into the assignment agreement, evaluating whether the author has been precluded from using elements related to the transfer. The other aspect comes down to comparing the original story and its derivative for similarity.

Another issue to note is that storytelling elements including characters installed in the plot, while not qualified for copyright protection, are not to be used as freely as the author wants. If they are distinctive enough to identify the work concerned, they might be able to enjoy protection from the Anti-unfair Competition Law as a bundle. Infringement in this regard should be determined based on whether the use of the items in a new work complies with certain codes observed in the industry. Factors such as who the user is, what he/she intends, where the original work stands and how the use affects the market of the original work should be taken into consideration.

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