China’s first “graphic film” rights infringement case
GraphMovie, an online graphic film commentary app, provides graphic atlases or guides of movies and TV shows for online audiences. The plaintiff Youku Internet Technology (Beijing) Co Ltd, a major streaming platform sued GraphMovie's operator Shenzhen-based Shushu Technology Co Ltd in the Beijing Internet Court (BIC), claiming that Shushu violated its right of information network dissemination by providing a continuous guide to a popular TV drama Eternal Love, covered almost all major pictures and plots, without Youku's permission. Youku demanded a compensation fee of 500,000 yuan ($ 77,150) as economic loss and other expenses.
On Aug 6, 2019, the BIC issued its judgment of first instance, determining that the defendant's behavior of providing a graphic guide to the TV series on GraphMovie constituted infringement of the right of information network dissemination of the plaintiff and ordered payment of damages of 30,000 yuan.
According to the plaintiff Youku, it obtained the exclusive right of information network dissemination of the TV drama Eternal Love at great cost. During the authorization period, the plaintiff found out that the defendant provided a continuous guide to the drama on its GraphMovie app. The atlas covered almost all the major scenes and plots of the drama which constituted an infringement of the plaintiff's right of information network dissemination.
Youku thus in its BIC suit claimed damages in the amount of 500,000 yuan for economic loss and other expenses.
The evidence showed that in December 2016, the TV drama's copyright owner transferred the exclusive right of information network dissemination (including sublicense and right protection) in Chinese mainland to Global United Technology Co Ltd which was later renamed as Youku Internet Technology (Beijing) Co Ltd.
Evidence provided by Youku showed that a picture guide to the Eternal Love was available on the GraphMovie app and website. There were 382 pictures all from the first episode of the graphy series and covered the main scenes of the episode. The subtitles in the pictures were added by the author of the guide, named as Qingqingjiang. The page views totaled 69,000.
The defendant Shushu Technology disagreed with the plaintiff's claim and argued from three perspectives.
First, GraphMovie is a sharing platform for online users to upload information at their own will. It is an information storage platform. It acknowledged that the uploaded content must be legal and compliant and said it did fulfill that duty of care.
Second, GraphMovie didn't use any continuous pictures and thus did not directly infringe the rights to a video. The piece was a recreation of pictures and words combined, with the words as the core.
Third, authors need pictures to go with the text when sharing their commentaries. It takes only a few seconds to play the 300-plus pictures as a video; thus it was a reasonable quotation action. Moreover, the picture atlas only involved the first episode of the TV series. It functioned as a trailer to the 58-episode drama.
Focus of dispute:
Does the plaintiff have the right of information network dissemination to the TV drama involved?
Did the behavior of the defendant constitute an infringement of the plaintiff's right of information network dissemination? If yes, should the defendant bear the civil liability claimed by the plaintiff?
Based on the above questions, the court provided the following considerations.
1. The plaintiff's source chain of the rights was clear and complete and the defendant had no objection to it. So the plaintiff has the right of information network dissemination to the TV drama involved and has the right to enforce it.
2. The court analyzed the second question from the following three perspectives:
First, the captured pictures are not creative elements from the public domain, but part of the original expression in the TV drama involved. Thus the behavior of providing this picture atlas through internet falls under the control range of the right of information network dissemination.
Second, the defendant argued that it only provided information storage service on the app instead of providing the work online. However, the proof it provided was not sufficient so it should bear the adverse consequences of having the onus of proof. Moreover, the defendant instigated online users to upload information which they know would unlikely be authorized to the online users and shared the users’ benefit from the uploading behavior. It has obvious subjective intention and thus jointly providing the picture guide involved.
Third, the judgment standard of reasonable quotation does not depend on the proportion of quotation, but on the reasonable needs of introduction or explanation. In this case, the purpose of the picture guide was not introduction but to meet the audience's needs of accessing the main plot and scenes of the TV series in a short time. So it was not a reasonable quotation. From the market perspective, the picture atlas involved was not a promotion of the TV drama involved. By covering the main plot and key scenes it would be thought to normally diminish the audience's further desire to watch the show. Thus it damaged the right owner's legitimate rights and interests.
3. The BIC quantified the defendant's liability based on the following considerations. The popularity of the TV series involved, the occurrence of the infringement being in a relatively hot market period and lasting fairly long, the defendant deleting the infringement content in time, and the page views of the content.
Judgment of first instance:
The defendant was ordered to compensate the plaintiff 30,000 yuan for economic loss within seven days of the judgment's taking effect. The other claims by the plaintiff were overruled.
This is the first case in China that involves rights infringement by adapting film and television works into graphic atlases or guides. The case defines the boundary between commercial market development and reasonable use of film and television works.