Ms. He E, a famous sculptor in China, was furious after carefully reading the replica photos and audio-visual materials. It completely imitates and plagiarizes the original work, with rough techniques, distorting and uglifying the characters and spiritual connotation of the original work. She believes that this is a blasphemy and slander to sculpture art and a serious violation of intellectual property rights.
According to the provisions of Articles 46, 47 and 48 of the Copyright Law of People's Republic of China (PRC), Ms. He E, the original creator of the statue of Mother Yellow River, believes that this copy has seriously violated her rights of reproduction, exhibition, protection of the integrity of the work and signature.
Accordingly, He E, the copyright owner of Mother Yellow River, filed a lawsuit with the Intermediate People's Court of Weinan City, Shaanxi Province on February 7, 2002, suing Lu, the founder of the tourist shipping center and replica of Qiachuan Scenic Area in Heyang County, and demanding that the defendant immediately stop the exhibition and destroy the fake image of Mother Yellow River. Apologize to the plaintiff and eliminate the influence in the national and Shaanxi and Gansu media; Compensation for the plaintiff's loss of 6.5438+0.05 million yuan. On March 7, 2002, the case was heard in the Intermediate People's Court of Weinan City, Shaanxi Province. He E, the plaintiff, did not appear in court because he was busy with his creation, and two lawyers, Yike and Yang Zhuo, entrusted by him, were authorized to represent him.
Lawyer Yi Ke said in the trial that the statue of Mother Yellow River, located on the south bank of the Yellow River in Binhe Middle Road, Lanzhou City, was created at 1984, and the author signed it as E. The work has been registered with the Copyright Bureau of Gansu Province, indicating that the copyright belongs to the plaintiff He E. The lawyer showed the original photo of Mother Yellow River and the work registration certificate in court. The Yellow River Mother written by defendant Lu in Qiachuan Scenic Area in September, 2002 is a plagiarism and illegal copy of the Yellow River Mother written by plaintiff in Lanzhou.
Lawyer Yi Ke showed large photos of the statues of the defendant "Yellow River Mother" and the plaintiff "Yellow River Mother", and pointed out that the defendant's works were substantially similar to the plaintiff's. Specific performance: First, the two are completely consistent in the theme of performance, both of them show the Yellow River in the image of mother, and show the parenting relationship between the Yellow River and China children in the form of mother and little boy; Second, the composition of the two is completely consistent, the posture of the characters is supine, and the mother's movements are all right arm forward, supporting the body and facing the right side; Little boys are all from left to right, facing forward. Third, the expression technique is exactly the same, and the head and limbs of the characters are in the same position. For example, the boy's head is located on the right side of the front line, and the waterline in each position is exactly the same. Fourth, the treatment method is consistent. For example, they are all long hair, clothing line, waterline, two-story platform and memorial stone tablets.
Lawyer Yi Ke said: "Specifically, there are 18 similarities. These two statues are almost identical except for the expressions of characters, the coordination of facial features, the posture of the defendant's works, and the ugly image, and even the size ratio is the same. The defendant's vulgar distortion and uglification of the plaintiff's works greatly damaged the artistic image of the plaintiff's works. "
The defendant imitated and copied the plaintiff "Mother of the Yellow River" in such a vulgar and inferior way, and for the purpose of income generation and profit-making, turned a city sculpture that is well-known at home and abroad and provides artistic enjoyment for the society into a poor tool for making money. This is not only a great spiritual violation to the plaintiff, Ms. He E, but also a blasphemy and slander to the sculpture art? The defendant shall bear civil liability according to law and compensate the plaintiff for the loss of 6,543,800 yuan+0,500 yuan.
Defendant Lu, a farmer from Xiayang Village, Qiachuan Town, Heyang County, Shaanxi Province. In his defense, he said that the statue of "Mother of the Yellow River" built by water and sediment in the heart of the Yellow River in the scenic spot was created according to the allusions of four Notre Dame colleges, including Yu's mother and mother, and was named "Mother of the Yellow River". God knows there is also a "Yellow River Mother" in Lanzhou. He stressed that farmers have a low level of education and do not understand the law, and said that "although the statue is ugly, the son is not too ugly for the mother."
In court, the defendant Lu presented four sketches of the design of Mother Yellow River. But after reading it, the plaintiff thought that these four sketches were not drawn last year. They are not old, but they are clean and have obvious new ink marks. The court also refused to recognize it.
In the court investigation, the defendant admitted that the statue he built did not have the certificate issued by the government department or the engineering certificate issued by the local construction department. He didn't have the qualification certificate of urban sculpture creation and design, but invested 1.3 million yuan to build the "Yellow River Mother".
The court also produced a letter from the National Urban Sculpture Construction Steering Committee to the Weinan Intermediate People's Court and an appraisal opinion from the Sculpture Department of Xi Academy of Fine Arts. These two materials prove that the defendant's statue, conception and composition are similar to those of the plaintiff, and point out the consistency of their conception, expression and treatment.
The defendant has no doubt about this. In the court mediation stage, the defendant Lu admitted the infringement, agreed to destroy the replica and publicly apologized, but said that he had no money to compensate. The judge declared the mediation invalid, and the date of sentencing will be notified separately.
As one of the 24 patent pilot cities in China, Lanzhou has always attached importance to intellectual property protection. After learning that the statue of "Mother of the Yellow River" was illegally copied, the leaders of Lanzhou Intellectual Property Office took the initiative to find out the situation from the original author, Ms. He E, and proposed to protect the intellectual property rights of her works.
In the first instance, the defendant was awarded compensation of 6.5438+0.29 million yuan.
At the beginning of March this year, Lanzhou Intellectual Property Office reported this copyright infringement case to China National Intellectual Property Administration, and also notified Shaanxi Intellectual Property Office to pay attention to this case. On March 17, the case was heard in the Intermediate People's Court of Weinan City, Shaanxi Province, and the leaders of Lanzhou Intellectual Property Office drove more than 700 kilometers to attend the trial.
On April 19, He E, the original author of the sculpture "Mother of the Yellow River", told Lanzhou Intellectual Property Office that she believed that the judgment of Weinan Intermediate People's Court in Shaanxi Province was extremely unfair and did not really reflect the legal protection of intellectual property rights, and resolutely expressed her intention to appeal.
The sculpture infringement case of "Yellow River Mother" was decided by the Intermediate People's Court of Weinan City, Shaanxi Province on April 17, 2007. The court found that the sculpture "Mother of the Yellow River" built by defendant Lu in Qiachuan Scenic Area in Heyang distorted and vilified the original characters, which constituted an infringement of the plaintiff's works. The defendant was ordered to immediately stop the exhibition and destroy it, publicly apologize to the plaintiff in provincial newspapers in Gansu and Shaanxi provinces, eliminate the impact of his infringement on the plaintiff, and compensate the economic loss of 6,543,800 yuan, the mental loss of 6,543,800 yuan, and other expenses of 6,543,800 yuan, totaling 6,543,800 yuan.
He E said: "I don't understand why the local court refused to accept the evidence provided by my lawyer that the defendant's illegal income was 780,000 yuan on the grounds that the defendant had not established accounting books for illegal business operations and his profits could not be calculated."
Yi Ke, He E's attorney in Xi, told the author on the phone that He E was fighting this lawsuit not for money, but to defend the legitimate rights and interests of artists. This case is different from ordinary infringement cases. Now it has aroused widespread concern at home and abroad and has a great influence. At present, the case has been tried in the second instance of Shaanxi Higher People's Court.