Chinese IP Law Updates
July 6, 2018

Copyright Infringement by Online Game Adaptations of Original Novels

Co-authors: Cathy He, Shirley Lin

Source Material:

No. 2016S03MC369 Civil Judgment

Case Overview:

In recent years, one of the fastest developing areas in IP Law is the adaptation of online games from popular literature, with the same name. The point is to develop games out of popular novels and comics of the same name, keeping the original characters and storyline, so that by using the already established audience and popularity of the original novel, the online game of the same name, can quickly accumulate a large number of users and gain a lot of benefits in the short term. However, this results in multiple copyright infringement disputes where the original copyright owner claims that the game company infringed the original book adaptation rights. This article aims to conduct a case study to illustrate how the courts think of such disputes between online games and an owner’s adaptation rights to his original work.

In 2016, the operator of the high-profile web novel site, Shanghai Xuanting Entertainment Information Technology Co., Ltd. (“Xuanting Co.”) initiated litigation procedures to protect the adaptation rights of its popular novel Douluo Dalu. The defendants are (“4399”) and Chengdu Jiqian Technology Co., Ltd. (“Jiqian Co.”), respectively the operator and the developer of the novel-adapted game. Recently, a first-instance judgment has been rendered by Jiangsu Xuzhou Intermediate People’s Court, granting Xuanting Co. a 5 million compensation for its loss and expenses against Jiqian Co.

Xuanting Co. claims that the mobile game New Douluo Dalu (The God’s Realm) bears an overwhelming resemblance to the copyrighted novel Douluo Dalu, which they own, with respect to; character names, story development, dialogues between characters, etc. Xuanting Co alleges that the adverse party infringes its adaptation rights.

Adversely, Jiqian Co. argues that the game’s adaptation is based not on the original novel but its derivative work Douluo Dalu – Legend of The Gods’ Realm for which the company has obtained a license for adaptation, allowing for its game’s development and operation. As for the alleged similarity, Jiqian Co. dismisses anything substantial, claiming the similar aspects are proportionately smaller when comparing the plaintiff’s novel and the game as a whole. Moreover, they also allege that their use of similar elements was in fact entirely reasonable.

Court’s Opinion:

The judging court states after examination that, “adaptation, as opposed to creation, exploits the fundamental creative expression of the original, making it a prominent part of the adapted work, thus forming its base or substance. “Under this rule, the court finds the alleged infringement established after comparing and contrasting the novel and the game in question, in terms of their names, characters, skill sets, basic storyline, details, etc.”

HFL’s Comment:

The court, in this case, has laid down a set of clear-cut standards for determining whether an online game’s adaptation infringes upon an original work. In doing this, infringement of the original creators’ creative expression must first and foremost be examined. The creative expression at stake can generally be made up of; the names – including that of the work and those of the characters -, skills deployable, core storyline, finer locations settings, dialogues, etc.
Although compared with the original novels, online games are relatively rare in terms of text expression, this does not allow online games to use the substance of the original works, nor may they rely on the excuse of reasonable use.

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