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ZHANG XIAOYAN V. LEI XIANHE, ZHAO QI AND SHANDONG BOOK LOVER AUDIO-VIDEO AND BOOK CO., LTD. (2013) MSZ No. 1049, SPC

Cause of action: Copyright dispute

Collegial panel members: Yu Xiaobai | Luo Dian | Li Rong

Keywords: copyright infringement, cinematographic and television works, historical themes, substantial similarity

Relevant legal provisions: Copyright Law of the People’s Republic of China, article 2 Regulations on the Implementation of the Copyright Law of the People’s Republic of China, article 2

Basic facts: Zhang Xiaoyan alleged that she began to produce and adapt the script for 高原骑兵连 (meaning “The Cavalry Troop on the Plateau”) in December 1999. In August 2000, shooting began on a 20-episode television series named 高原骑兵连 (The Cavalry Troop on the Plateau), on which filming was completed in December 2000. Zhang Xiaoyan was the copyright holder for the series (hereinafter “Ms. Zhang’s screenplay” shall refer to this script and television series). Lei Xianhe participated in the production of the series The Cavalry Troop on the Plateau as honorary producer.

Later, Lei Xianhe was first scriptwriter and producer, and Zhao Qi was second scriptwriter, during filming of the television series 最后的骑兵 (The Last Cavalryman) (hereinafter “Mr. Lei’s screenplay” shall refer to this television series and its script).

On July 1, 2009, Zhang Xiaoyan bought a DVD of The Last Cavalryman from Shandong Book Lover Audio-Video and Book Co., Ltd. (hereinafter “Shandong Book Company”), and found that it was either identical with or similar to Ms. Zhang’s screenplay in terms of the relationship between the main characters, the storyline and other aspects, and hence she alleged that Mr. Lei’s screenplay infringed on her own. Zhang Xiaoyan therefore applied to the Intermediate People’s Court of Jinan Municipality, asking it to order:

(a) the three respondents (Lei Xianhe, Zhao Qi and Shandong Book Company) to cease their infringement;

(b) Lei Xianhe to publish a statement of apology in Qilu Evening News; and

(c) Lei Xianhe to compensate Zhang Xiaoyan for her losses in the form of script remuneration, publication and distribution, as well as for adaptation of the script, in the sum of RMB800,000.

Lei Xianhe argued that the script of Ms. Zhang’s screenplay had been adapted from a full-length novel by Zhang Guanlin, entitled “雪域河源” (meaning Snow Fields and River Source), but that he had initially adapted his own screenplay from Shi Yonggang’s full-length novel 天苍茫 (meaning The Endless Horizon), as rewritten by Zhao Qi in the short story 骑马挎枪走天涯 (meaning “Roaming the World on Horseback with a Rifle”). In the first half of 2000, Zhang Xiaoyan had proposed to work with Lei Xianhe on a screenplay reflecting life in the cavalry. Lei Xianhe introduced his adaption of The Endless Horizon to Zhang Xiaoyan and proposed that they make the film together, but Zhang Xiaoyan refused. In August 2000, Lei Xianhe and Zhang Xiaoyan signed a cooperative agreement under which Zhang Xiaoyan was in charge of the shooting and Lei Xianhe was responsible for military security, but did not participate in artistic creation. Lei Xianhe did not see Zhang Xiaoyan’s script. Because Mr. Lei’s screenplay was created and broadcast in different time slots to those of Ms. Zhang’s screenplay, his television series was unlikely to affect the distribution and broadcast of Ms. Zhang’s screenplay.

The court found that Ms. Zhang’s screenplay, Mr. Lei’s screenplay, “Roaming the World on Horseback with a Rifle” and The Endless Horizon were four works that centered on military and historical subject matter, and which took the demobilization (or downsizing) of cavalry units during the military’s “streamlining and reorganization” of the mid-1980s as their main storylines. The short story “Roaming the World on Horseback with a Rifle” was published in issue #512 of Literature and Art of the People’s Liberation Army (vol. 12, 1996); the full-length novel The Endless Horizon was published by the Liberation Army Art Press in April 2001; Ms. Zhang’s screenplay was broadcast on CCTV-8 in a morning slot, between May 17, 2004, and May 21, 2004, at a rate of four episodes a day; Mr. Lei’s screenplay was broadcast on CCTV-1, in a primetime evening slot, between May 19 and May 29, 2004, at a rate of two episodes a day.

“Roaming the World on Horseback with a Rifle” describes glorious moments in the cavalry’s history, the demobilization of the cavalry, and the obsession of members of the cavalry (especially Cheng Tian, the company commander) with cavalry and war horses, as narrated by the company commander, an instructor and a strong war horse, both before and after the cavalry’s retirement. “Roaming the World on Horseback with a Rifle” includes descriptions of: the mysterious pedigree and origins of the war horse (War Horse No. 15); the harmonious relationship between the company commander and the war horse; the personalities of the instructor Kong Yuehua and the company commander, who writes poems; the father of the company commander, who was a cavalry regiment commander; the important role that the cavalry could play in any future war; the great efforts that the company commander makes to retain the cavalry regiment; the eventual retirement of the cavalry regiment; and the grief of the company commander and war horse at the end of the story. In Mr. Lei’s screenplay, the horse is also mysterious and, other than that the father of Chang Wentian, the company commander, is a division commander, Mr. Lei’s screenplay is basically the same as “Roaming the World on Horseback with a Rifle” in terms of plot and content.

The Endless Horizon is a book centered on the legendary and mysterious history of the last cavalry regiment in the Chinese Army, describing prairie life and the lives of members of the cavalry, such as the emotional relationship between horse and human, and the genetic value of the last wild horse, including characters such as an elder who studies the language of horses and a mysterious prophet, and it tells a story of the last wild horse to win a race in Hong Kong. In The Endless Horizon, the father of company commander Cheng Tian was the division commander of the cavalry, while the regional commander was the first company commander of Shannan Cavalry Regiment and Cheng Tian’s father’s former subordinate. When he was young, Cheng Tian secretly fell in love with the regional commander’s daughter, Lan Jing, but cavalry instructor Wang Qingyi was also in love with Lan Jing, and so Wang stirred up a romance between Cheng Tian and a genetics researcher, Liu Keke. At the end of the novel, Cheng Tian dies when he rescues the researchers, who have become trapped in a marsh. In Mr. Lei’s screenplay, Gao Bo lends the former cavalry instructor’s horse, “Da Lama”, which runs fast and steady, and has a good temper, to company commander Chang Wentian for his temporary use. In the end, the company commander is killed when trying to arrest a suspect. The relationship between the instructor Kong Yuehua and company commander Chang Wentian in Mr. Lei’s screenplay is described in similar terms to those used for the relationship between instructor Wang Qingyi and company commander Cheng Tian in The Endless Horizon.

The court commissioned the Copyright Authentication Committee of the Copyright Protection Center of China to conduct a legal comparison of Ms. Zhang’s and Mr. Lei’s screenplays, and the Committee concluded that:

(a) the two were similar in terms of their setting and the relationships between the main characters;

(b) the main storylines – that is, of demobilizing (downsizing) the cavalry unit – were similar; and

(c) the two were the same or similar in some points of plot, but they were expressed in different language other than in one instance, which was basically the same.

That plot point which was expressed in both screenplays in virtually identical ways was the statement of the male lead in each work that he was “willing to be a herdsman”. In the fourth episode of Ms. Zhang’s screenplay, Qin Dongji says: “The green land is my home; treat my horse as my partner; I want to be a herdsman.” In the 18th episode of Mr. Lei’s screenplay, Chang Wentian says: “I treat the green land as my home and my horse as my partner. Have you seen the film The Herdsman? I want to be a free herdsman.”

Held: On July 13, 2011, the Intermediate People’s Court of Jinan Municipality, Shandong Province, delivered its judgment ((2010) JMSCZ No. 84), in which it rejected all of Zhang Xiaoyan’s claims.

Unconvinced, Zhang Xiaoyan appealed. On June 14, 2012, the Higher People’s Court of Shandong Province delivered its judgment ((2011) LMSZZ No. 194), in which it dismissed the appeal and affirmed the decision at first instance.

Still unconvinced, Zhang Xiaoyan applied to the Supreme People’s Court for permission to appeal. On November 28, 2014, after reviewing the facts of the case, the Supreme People’s Court, refused Zhang Xiaoyan such permission.

Reasoning: The Supreme People’s Court affirmed that the focus of the dispute in this case is whether the script and television series of Mr. Lei’s screenplay infringed upon the copyright associated with the script and television series of Ms. Zhang’s screenplay.

Whether a work constitutes a copyright infringement shall be judged based on aspects such as whether the author of the allegedly infringing work has had “access” to (been exposed to) the work of the copyright holder, and whether the alleged infringing work and the work of the copyright holder demonstrate “substantial similarity”. None of the parties in this case disputed the fact that Lei Xianhe had been exposed to Ms. Zhang’s screenplay; the key question in this case was therefore whether there was any substantial similarity between the two works.

The Copyright Law of the People’s Republic of China protects an author’s creative expressions – that is, not their thoughts or emotions as such, but the creative ways in which they have expressed those thoughts or emotions. “Thoughts”, as defined here, include understandings of material existence, objective facts, human emotions and thought processes. Thoughts are objects that a person describes and demonstrates, and they fall within the ambit of subjectivity. “Creativity” is a process that others can perceive and during which the creator illustrates their ideas by recourse to artistic forms, using material media to convert their imagination intoimage, and to transform something abstract, subjective or intangible into something concrete, objective or tangible. Expressions that are formed creatively and which demonstrate originality are a type of work protected under the Copyright Law. Such protected expressions are found not only in the text, color, lines and symbols that might appear in the final form of a work; when the content of a work manifests the author’s thoughts and emotions, the content is also a type of expression protected under the Copyright Law. However, creative ideas, source material or information that are in the public domain, as well as some forms of creativity, necessary scenes or expressions that are unique or limited are excluded from the scope of protection under the Copyright Law. “Necessary scenes” can be defined as those events, roles, settings or scenes that are inevitable when telling a particular story or exercising creativity with a particular theme. Such indispensable ways of expressing a particular theme are not protected under the Copyright Law. The term “expressions that are unique or limited” refers to those instances in which a certain thought can be expressed in only one or a limited number of ways. Such expressions are not granted copyright protection. When judging whether there is any substantial similarity between Mr. Lei’s screenplay and Ms. Zhang’s screenplay, comparisons shall be made of the expressions of ideas and emotions in the two works, whether or not such expression is the result of the authors’ choices, and whether the selections, arrangements and designs of the plot, sets, scenes, along with other things expressed in the works, are the same or similar. The courts shall not depart from expressions to look at aspects such as thoughts, emotions, creative ideas and objects as such, among other things.

The Supreme People’s Court based its judgment on analysis of the following aspects, in combination with Zhang Xiaoyan’s claims.

Zhang Xiaoyan claims that the main storylines of both Mr. Lei’s and Ms. Zhang’s screenplays are the same. Because both Mr. Lei’s screenplay and “Roaming the World on Horseback with a Rifle” closely follow the theme and situation of “a hero’s dead end, a cavalryman’s swan song”, and describe stories about “the last cavalryman” before and after demobilization, it can be determined that the main storylines in Mr. Lei’s screenplay, as well as the overall thread and sequence of ideas, are taken from “Roaming the World on Horseback with a Rifle”. Ms. Zhang’s screenplay, Mr. Lei’s screenplay, “Roaming the World on Horseback with a Rifle” and The Endless Horizon are four works that center on military and historical subject matters, and which take as their main focus the demobilization (or downsizing) of cavalry units during the military’s efforts to “streamline and reorganize” in the mid-1980s. This storyline is in the public domain and cannot be monopolized by individuals. Each of the authors of those four works therefore has the right to use, in their own way, the historical subject matter and to create works based on it. Consequently, even if there are some similarities between the main storyline in Mr. Lei’s screenplay and that in Ms. Zhang’s screenplay, because the main storyline is not protected under the Copyright Law and the main storyline in Mr. Lei’s screenplay is taken from “Roaming the World on Horseback with a Rifle”, which was the earliest of the four works published, it cannot be concluded that Mr. Lei’s screenplay plagiarizes Ms. Zhang’s screenplay.

Zhang Xiaoyan also claimed that the main characters and their relationships are the same or similar in Mr. Lei’s screenplay and Ms. Zhang’s screenplay. The Court noted that the four works are all on military subject matter and take the demobilization (or downsizing) of cavalry units during a certain historical period as their main storyline. Other than “Roaming the World on Horseback with a Rifle”, which is limited by its length as a short story and thus does not include any love triangle or relationship between members of the cavalry and civilians, the other three works all cover such main characters and relationships between the main characters, including the love triangle, the superior–subordinate relationships between officers and soldiers, and the relationship between members of the cavalry and civilians. These ways of depicting this subject matter inevitably involve necessary scenes that cannot be avoided in a work about the military subject matter. Because the means of giving expression to this subject matter are limited, they are not protected under the Copyright Law.

Zhang Xiaoyan claimed too that the verbal expressions and the storylines in Mr. Lei’s screenplay and Ms. Zhang’s screenplay are the same or similar. In terms of verbal expressions, the phrases “be a free herdsman” in Mr. Lei’s screenplay and “be a herdsman” in Ms. Zhang’s screenplay are basically the same. However, these verbal expressions are a type of phrase customarily used in a specific context; they are not original expressions. In terms of the storylines, a storyline that is used to manifest an author’s thoughts and emotions falls within the ambit of “expressions”. A storyline that has originality should be protected under the Copyright Law – but one cannot necessarily draw a conclusion that the storylines are the same or similar just because some elements of the storylines are the same or similar. In this case, the identical or similar parts of the four works largely derive from source material in the public domain or source material that otherwise lacks originality. In some of these parts, only some elements in the storyline are the same, but the specific words and the meanings expressed as the plot unfolds are not the same. The second instance court held that six plot points were the same or similar in Mr. Lei’s and Ms. Zhang’s screenplays. Among these points were included those relating to the superior’s relationship with a former subordinate and to the assigning of a temporary mount, among other things, and it was noted that similar plot content appears in The Endless Horizon. Although the plot structure in other parts of the two screenplays is the same or similar, some of these examples show that only a few elements used in their expression are the same or similar. The court concluded that those parts of the two screenplays with the same or similar plot content are scarce and insignificant.

Generally speaking, in Mr. Lei’s screenplay and Ms. Zhang’s screenplay, the specific plot development is different, the focus of depiction is different, the personalities of the lead characters are different and the endings are different. Identical or similar plot points account for only an extremely low proportion in Mr. Lei’s screenplay and are of secondary importance in its entire story arc. They do not constitute the main parts of Mr. Lei’s screenplay, and will not cause the readers and viewers to have the same or similar experiences in appreciating the two works. The Court therefore cannot draw the conclusion that the two works have any substantial similarity. Article 15 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Adjudication of Copyright Civil Disputes provides that where works on the same subject matter are created by different authors, and the expression of each work is completed independently and has originality, the courts should determine that each author enjoys independent copyrights. The Court consequently held that Mr. Lei’s screenplay and Ms. Zhang’s screenplay were works on the same subject matter created independently by different authors. Both series have originality and each author enjoys independent copyright.