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After the release of the promotional video "Xiaoman today, Xiaoman is good in life", which Audi cooperated with Mr. Andy Lau, the screen was brushed. That night, man ge of Peking University, who has more than 3 million fans of Tiktok, released the video "what is the experience of copying a copy that has been broadcast for hundreds of millions". The video proved that the Audi advertising copy was almost copied by word comparison. At 10:13 a.m. on May 22, Audi's official wechat has apologized and deleted yesterday's controversial advertisement. Mr. Andy Lau's Tiktok account also deleted the promotional video.

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According to news reports, Andy Lau's advertisement for Audi was suspected of plagiarizing the copy of Tiktok's "man ge of Peking University" on a large scale, and the news soon hit a hot search. So, does the copy of "man ge of Peking University" constitute a work? If it is a work, how to define the scope of protection? What copyright rights does Andy Lau's advertisement infringe on "brother man of Peking University"? Will Andy Lau be liable for the act of shooting advertisements? This article will discuss briefly below.

(picture from the network)

01 does the copy of "man ge of Peking University" constitute a work? What content of the copy is protected by the copyright law?

Article 3 of the copyright law of the people's Republic of China stipulates that the term "works" as used in this Law refers to intellectual achievements that are original and can be expressed in certain forms in the fields of literature, art and science. Accordingly, the composition of works in the sense of copyright law must conform to three characteristics: 1 Belonging to the field of literature, art and science; 2. be original; 3. it can be expressed in a certain form and has reproducibility. It is obvious that the copy of "man ge of Peking University" meets the conditions of No. 1 and No. 3. The key to whether it belongs to a work is whether it is original.

When judging whether a work is original or not, we should first eliminate the contents in the public domain, facts and other contents that are not protected by the copyright law. The author believes that part of the contents of "man ge of Peking University" belongs to the contents or facts in the well-known field, which should not be protected by the copyright law. For example, "today is the Xiaoman of the twenty-four solar terms, but there is one strange thing. There must be a great heat when there is a small heat, there must be a great cold when there is a small cold, but there must be no great full" in this part. The content of the twenty-four solar terms belongs to the well-known field. In the twenty-four solar terms, there are a small heat, a great cold and a small cold, and there is a small full but no great full. This is a fact. This part is a simple statement of the fact, Moreover, the accurate expression of this fact is very limited, and the thought and expression have been confused. This part of the content should not be protected by the copyright law. Otherwise, the content of the twenty-four solar terms will be monopolized by the "man ge of Peking University", and the public will not be able to use it. This is similar to the expression "there are four seasons in a year, and it must be summer after spring". It is a description of the discovery of facts. It lacks necessary creativity and should not be protected by the copyright law. Otherwise, the public will not be able to accurately express this fact. In addition, the poem "the flowers are not in full bloom and the moon is not round" quoted by "brother man of Peking University" is also a work created by others, for which "brother man of Peking University" does not enjoy the copyright. As for other parts of the copy, it has a certain artistic conception because it belongs to the sentiment and emotional expression of "brother man of Peking University". For example, "half a mountain is slightly drunk. There is no need to worry about profits and losses. In the end, small man wins everything." And other contents, meeting the requirements of originality.

As the copy of "man ge of Peking University" is mainly composed of words, it constitutes a written work. However, when protecting the work, we should eliminate the contents that are not protected by the copyright law, such as the well-known fields and facts.

02 what copyright rights of "man ge of Peking University" have been infringed by the advertisements?

Before answering this question, we should first analyze what behaviors are involved in the advertising, and then analyze which copyright rights these behaviors fall under. From the content of the advertisement, the following behaviors are involved in shooting and completing the advertisement:

First of all, the advertisement used the work of "man ge of Peking University" but did not give its signature, which infringed the copyright owner's right of authorship of written works.

Secondly, there are subtitles of written works in the advertising video, which belongs to the reproduction of written works and involves the reproduction right of the author of written works.

Thirdly, the shooting of written works into audio-visual works belongs to the shooting of written works, which involves the shooting right of the author of written works.

Finally, the advertisements to be shot are spread on the Internet through wechat account or official account, so that the public can obtain the works at the time and place they choose, which infringes the information network communication right of the author of written works.

Therefore, the shot advertisement may infringe the right of authorship, reproduction, filming, information network communication and other rights of "man ge of Peking University".

Will Andy Lau be liable for the act of shooting advertisements?

Andy Lau's main participation in shooting advertisements is to recite the written works and perform the written works. However, whether his performance involves infringement of the performance right of the author of the written works depends on whether it is a public performance of the works. If Andy Lau performs his works in public, he may infringe upon the performance right of the author, and fall directly into the regulation scope of the performance right of the author, which may constitute a direct infringement. The direct infringement of copyright generally does not take the existence of fault as the constitutive element, but the infringer's liability for compensation generally takes the existence of fault as the prerequisite. If Andy Lau does not perform his works in public, he does not infringe the performance right of the author. However, if he shoots other people's written works into video works under the organization of advertising companies or advertisers, does his behavior constitute indirect infringement? Indirect infringement generally consists of fault.

Therefore, whether Andy Lau should bear the liability for compensation for the act of shooting advertisements depends on whether Andy Lau has fulfilled his duty of care, whether there is any fault, and whether there is any fact that he knows or should know the infringement of shooting documents. If Andy Lau is at fault for the occurrence of the infringement, he may be liable for compensation, but if Andy Lau is not at fault, he may not be liable for compensation.

Generally speaking, the advertising endorsement contract signed between the spokesperson and the client (Advertiser) clearly stipulates that shooting shall not infringe the rights of a third party. Even if Andy Lau is found to be at fault and liable for compensation, if the event causes damage to Andy Lau's reputation, Andy Lau can also claim liability for breach of contract or tort liability according to the contract signed with the advertiser.

04 practical suggestions

1. generally, the copyright is automatically obtained when the work is created. Therefore, in the case of copyright infringement, the plaintiff must first prove the copyright owner of his work. Therefore, the author of the work must retain the manuscripts, documents and other evidence that can prove that he is the author.

2. for advertising companies and advertisers, they must be aware of copyright, respect the intellectual property rights of others, adhere to originality when shooting advertisements, and obtain the consent of the copyright owner when it is really necessary to use other people's works. As some works may involve the rights of multiple obligees, when obtaining authorization, it is necessary to obtain the authorization of complete and all obligees to avoid infringement due to not obtaining the permission of all obligees.

3. for stars, when endorsing and shooting advertisements, they must strictly review the endorsement agreement, clearly stipulate that the shooting copy or script used does not infringe the rights of a third party, and there is no ownership dispute, and agree on the corresponding liability for breach of contract.