Trial name: Plaintiff Guangzhou New Era Audio and Video Company v. Defendant Wuhan Tianyidi Entertainment Co., Ltd. MTV copyright infringement dispute case
Trial procedure: first instance
Case Category: Intellectual Property
Publication Number:
Judgment Document Number: (2004) Wuzhichu Zi No. 205
Judgment Document Type: Civil Judgment< /p>
Judgment time: March 21, 2005
Accepting court: Wuhan Intermediate People’s Court
Full text of the case:
< p>Plaintiff Guangzhou New Era Audio and Video Company v. Defendant Wuhan Tianyudi Entertainment Co., Ltd. MTV copyright infringement dispute caseWuhan Intermediate People's Court
Civil Judgment
(2004) Wuzhichu Zi No. 205
The plaintiff, Guangzhou New Era Audio and Video Company, is domiciled at No. 5 Yaoquan New Street, Guanghua 2nd Road, Guangzhou City, Guangdong Province.
Legal representative Li Qiang, general manager.
The entrusted agent is Qiu Qixiong, a lawyer at Hubei Chufeng Dehao Law Firm.
The entrusted agent is Lu Jing, a lawyer at Hubei Chufeng Dehao Law Firm.
The defendant, Wuhan Tianyudi Entertainment Co., Ltd., is domiciled at No. 224 Wuluo Road, Wuchang District, Wuhan City, Hubei Province.
Legal representative Lu Qihong, chairman of the board.
The entrusted agent is Tang Hongqing, a lawyer at Hubei Tianyuan Brothers Law Firm.
This court accepted the case of plaintiff Guangzhou New Era Audio and Video Company (hereinafter referred to as New Era Company) v. defendant Wuhan Tianyidi Entertainment Co., Ltd. (hereinafter referred to as Tianyidi Company) over copyright infringement of MTV works. According to the law, Judge Yin Wei served as the presiding judge, and formed a collegial panel with judge Xu Jixue and acting judge Fu Jianqing. The trial was held in public on January 24, 2005. Qiu Qixiong and Lu Jing, the attorneys appointed by the plaintiff New Era Company, and Tang Hongqing, the attorney appointed by the defendant Tianyidi Company, attended the court to participate in the lawsuit. The case has now been concluded.
The plaintiff New Era Company claimed that on July 17, 2004, the plaintiff discovered that in the private room No. 3026 of Tianyidi Entertainment City operated by the defendant (located on the 3rd floor of Xindadi Hotel, Wuluo Road, Wuchang District, Wuhan City), The defendant screened the plaintiff's copyrighted MTV music works to the public in the form of karaoke for the purpose of profit. These MTV works are: 1. "Late Autumn" sung by Mao Ning; 2. "Heart Rain". The plaintiff, as the right holder of the above-mentioned works, has never given the defendant permission to use its works in the above-mentioned manner. The defendant's unauthorized screening of the plaintiff's works seriously violated the plaintiff's rights and caused significant economic losses to the plaintiff. Therefore, the plaintiff New Era Company requested: 1. The defendant immediately stopped infringing on the plaintiff’s copyrighted right to show the MTV music works involved in the case, and no longer publicly screened the plaintiff’s copyrighted works; 2. The defendant published a statement in a nationally distributed newspaper, Make a public apology to the plaintiff to eliminate the impact; 3. The defendant shall compensate the plaintiff for economic losses of 100,000 yuan; 4. The defendant shall bear all litigation costs of this case.
To prove the claims of the lawsuit, the plaintiff New Era Company submitted four pieces of evidence to this court.
Evidence 1, MTV-"Late Autumn Mao Ning" VCD boxed disc, and a copy of the disc package cover, prove that the plaintiff is the copyright owner of the MTV tracks contained on the disc; Evidence 2, China Audio and Video Association proves that one evidence, proving that the plaintiff enjoys the copyright of the musical works involved; Evidence 3, the notary certificate No. 3075 of the Qingshan District, Wuhan City, Hubei Province (2004) Wu Qingzhengzi and the CD burned by the plaintiff for evidence collection, prove that the defendant has infringed the plaintiff’s copyright of infringement; Evidence 4, the plaintiff’s legal person business license proves the plaintiff’s qualifications as a litigation subject.
Defendant Tianyidi Company argued in oral defense at the trial that, first, judging from the evidence submitted by the plaintiff, the plaintiff was only the producer of the VCD music disc, not the copyright holder of the MTV music television album involved. There is insufficient basis for accusing the defendant of infringing upon its screening rights; secondly, during the business process, the defendant only played the above-mentioned music TV tracks at the request of customers, and did not use music as its business object.
Therefore, the above-mentioned actions of the defendant are not profitable in nature. The plaintiff believes that the defendant infringed the copyright of its MTV music works and caused economic losses, which is inconsistent with the facts; third, the defendant legally purchased the MTV-"Late Autumn Mao Ning" album on January 3, 2004. Moreover, it has not been used for a long time and the company's business scale is not large. Therefore, the plaintiff has no legal basis for requiring the defendant to compensate economic losses of 100,000 yuan. Therefore, the defendant Tianyudi Company requested that the plaintiff’s lawsuit be dismissed.
To support its defense claim, the defendant Tianyudi Company submitted three pieces of evidence to this court.
Evidence 1, a commercial retail invoice from Hubei Province, proves that the defendant purchased the MTV-"Late Autumn Mao Ning" music television album on January 3, 2004; Evidence 2, a statement, proves that the plaintiff's representative spent money at the defendant's place In terms of the amount and content, the defendant did not charge the plaintiff’s agent for the relevant songs that were requested for consumption; Evidence 3, a copy of the Beijing Evening News, proved that the defendant’s compensation amount was too high.
Regarding the above evidence, this court organized the exchange of evidence and cross-examination between the two parties on November 10, 2004.
(1) The plaintiff New Era Company has no objection to the authenticity of the three pieces of evidence submitted by the defendant Tianyidi Company, but believes that Evidence 1 and 2 submitted by the defendant are not directly relevant to this case.
(2) The defendant Tianyidi Company has no objection to the authenticity of Evidence 1, Evidence 2 and Evidence 4 submitted by the plaintiff; it has objection to Evidence 3. Regarding the evidence 3 submitted by the plaintiff, which is the notarization certificate No. 3075 of the Qingshan District Qingshan District, Wuhan City, Hubei Province (2004) Wu Qingzhengzi No. 3075, the defendant believed that no staff member of the defendant was present in the notarization, so it did not recognize its authenticity.
The above evidence has been cross-examined by both parties and both parties have recognized the authenticity of the evidence. This court will confirm it. Regarding the evidence that the parties involved in the case have objections to, this court finds the following:
(1) Regarding evidence 3 submitted by the plaintiff, that is, the notarial certificate submitted by the plaintiff. After review, this court believes that the "(2004) Wu Qing Zheng Zi No. 3075 Notary Certificate" issued by the Notary Public Office of Qingshan District, Wuhan City, Hubei Province appended the notarization record of the notary office, and the notarization record issued by the defendant Tianyidi Company with the official seal of the defendant. Four copies of "Wuhan City Catering and Entertainment Industry Fixed Quota Unified Invoice". The defendant did not deny the notarization transcripts and invoices, so this evidence can prove the authenticity of the notarization performed by the notary office. According to Article 8, paragraph 2, of the Supreme People's Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases" and Article 65, Item (3) and 68 of "Several Provisions on Evidence in Civil Litigation" Article 3 stipulates that this court recognizes the probative force of Evidence 3 submitted by the plaintiff.
(2) Regarding the evidence 1 submitted by the defendant, that is, the purchase invoice and the evidence 2, that is, the consumption receipt, the purpose of the defendant's submission of this evidence is to prove the circumstances of its infringement and the amount of relevant compensation. This evidence is a rebuttal to the plaintiff's cause of action and claim, so it is relevant to this case. This court accepts this evidence.
After trial, it was found that the plaintiff New Era Company created and completed the MTV-"Late Autumn Mao Ning" music television in 1996, and produced it into a VCD and DVD music album of the same name. MTV-"Late Autumn Mao Ning" boxed VCD and DVD contain 25 MTV songs sung by Mao Ning, including the two MTV tracks involved in the case, "Late Autumn" and "Heart Rain". The VCD and DVD discs of MTV-"Late Autumn Mao Ning" are sealed with the plaintiff's New Era logo, signed and published by Guangzhou New Era Audio and Video Company, publication number: ISRC CN-F21-96-335-00-V.J6.
On July 15, 2004, the plaintiff’s agents Huang Bingxiong and Liao Zhixiong discovered that the defendant was playing “Mao Ning’s song” sung by Mao Ning to the public in the form of karaoke without permission in the private room No. 3026 of the defendant’s business premises “KTV”. After the two songs involved in the case were "Late Autumn" and "Heart Rain", he immediately applied to the Notary Office of Qingshan District, Wuhan City, Hubei Province for evidence preservation. On July 17 of the same year, Huang Bingxiong and Liao Zhixiong, under the supervision of notary Yang Hanying and staff Wang Chunxiang of the Qingshan District Notary Office, Wuhan City, Hubei Province, went to the "Heaven and Earth" on the 3rd floor of the New Dadi Hotel, No. 334 Wuluo Road, Wuchang District, Wuhan City, Hubei Province "KTV-3026 private room. As ordinary consumers, Huang Bingxiong and Liao Zhixiong ordered 18 songs including "Late Autumn" and "Heart Rain", obtained 4 consumption invoices stamped with the defendant's special invoice stamp, and reviewed the process of on-demand and playback of the songs. Video recording was conducted.
Afterwards, the notary office produced a copy of the notarization transcript and the (2004) Wu Qing Zheng Zi No. 3075 Notary Certificate, and compiled the video materials into a CD.
On September 9, 2004, the China Audio and Video Association issued a written certificate to Beijing Yingke Law Firm, the agent entrusted by the plaintiff New Era Company. The certificate states: The disc-set MTV-"Late Autumn Mao Ning" published by Guangzhou New Era Audio and Video Company has a total of 25 works, publication number: ISRC CN-F21-96-335-00-V.J6, including The music TV and music videos were all produced by Guangzhou New Era Audio and Video Company, and the relevant copyrights are owned by Guangzhou New Era Audio and Video Company.
On August 21, 1998, the defendant Tianyidi Company was approved and registered by the Wuhan Administration for Industry and Commerce and received its corporate legal person license. Its business scope is sauna bathing and singing and dancing. On January 3, 2004, the defendant purchased the boxed CD of the MTV-"Late Autumn Mao Ning" album.
This court also found out that before the official program of the MTV-"Late Autumn Mao Ning" VCD involved in the case, the signature of the plaintiff "Guangzhou New Era Audio and Video Company" was displayed on the screen; during the official program, the screen displayed every After a period of time, dynamic "new era" patterns and logos will be displayed.
During the trial of this case in this court, the plaintiff New Era Company provided relevant effective civil judgments. The judgment records: On November 4, 2003, the International Association of the Phonographic Industry (Hong Kong Association) Co., Ltd. issued the following certificate: Each member company of the Association provided commercial services for the Hong Kong pop star MTV tracks created by it in Hong Kong karaoke halls and other entertainment venues. For limited use, the usual method is a one-time license, with a usage period ranging from 1 to 3 months, and the charge for each MTV track ranges from HK$50,000 to HK$100,000. Thereafter, members' MTV tracks can only be used in places that have been authorized by the member to be made public.
This hospital believes that MTV is music television, which carries certain vocal and instrumental music works as the theme image, and carries out visual creative design based on the different characteristics of music genres and poetic imagery to establish the spatial image of the work. The form, type characteristics and situational atmosphere make the picture and music integrate in the movement of time and space, forming a distinct and harmonious audio-visual structure. This TV art genre that combines sound and painting makes full use of various modeling factors such as light, color, composition, and movement, and uses electronic editing, three-dimensional animation, and digital editing and editing systems as production methods to construct a theme with a multi-dimensional space-time form. picture. MTV's music images, creative concepts, creative designs and creative methods are the creator's copy and reproduction of musical works and their combinations. The creative process of MTV music television and the expression of musical themes embody the wisdom and labor of the creators, and is a breakthrough creative activity. Therefore, MTV is artistic, perceptible and creative, has the legal characteristics of a "work" stipulated in the Copyright Law of the People's Republic of China, and should be recognized as a work.
As an MTV music and television work that can be used for entertainment such as karaoke and KTV, it is different from audio and video products. Article 5 (2) and (3) of the "Regulations on the Implementation of the Copyright Law of the People's Republic of China" stipulates that sound recordings refer to any recording of performance sounds and other sounds; video recordings refer to movies Any recording of continuous related images and images with or without accompanying sound, other than works and works created by a method similar to filmmaking, which are characterized by: audio and video recordings are audio and video producers who use certain equipment to faithfully record the filming objects. , that is, a simple copy and reproduction of the photographed object and its embodied creative design and main idea. The creative process does not break through the original creativity of the photographed object. It is an original reproduction of the photographed object and has no originality. Item 11 of Article 4 of the "Regulations on the Implementation of the Copyright Law of the People's Republic of China" stipulates that film works and works created with similar filmmaking methods refer to films shot on a certain medium and composed of a series of audio or video recordings. Works composed of pictures without accompanying sound and projected or otherwise disseminated with the help of appropriate devices. The main characteristics of works created with a method similar to filmmaking are: it is not only a copy and reproduction of the filmed objects, but also reflects the creator's processing, arrangement, design and innovation of the filmed objects, adding the creator's creative intention. and conceptual design.
Compared with audio and video products, MTV's creative techniques and forms of expression are a new breakthrough in audio and video products and a re-creation process. Therefore, MTV works belong to a new type of music genre artistic works. Another one
The MTV-"Late Autumn Mao Ning" music television album involved in the case. Judging from the content of the screen, the MTV-"Late Autumn Mao Ning" screen consists of song singing, character performances, background images, lyrics subtitles, music accompaniment and other animations. It is composed of dynamic and static scenes, highlighting the theme of related music; judging from the production method, the creativity and design of its dynamic and static scenes are determined vocal and instrumental works to carry the theme, relying on different music genres and The artistic conception of lyrics and music is visually innovated to establish the spatial form, type characteristics and background atmosphere of the work, and integrate the picture and music; judging from the production process, the composition design, scene creativity and other audio-visual structures of MTV-"Late Autumn Mao Ning" include the director's , filming, performance, editing, costume, lighting, acting, design and synthesis and other technical creative activities; judging from the communication method, MTV-"Late Autumn Mao Ning" uses appropriate projection equipment and a device system with corresponding functions to reproduce the work's The artistic conception of the picture and the creative intention of the producer. Therefore, judging from the creative method, the MTV involved in the case - "Late Autumn Mao Ning" should be recognized as a work created "with a method similar to film shooting", rather than a simple audio and video product.
The signature and logo on the boxed disc cover of MTV-"Late Autumn Mao Ning" are the plaintiff New Era Company; the signature and logo displayed during the playback of the disc content are only the plaintiff New Era Company; China Audio and Video Association Provide proof that the MTV-"Late Autumn Mao Ning" music television work involved in the case was created and completed by the plaintiff New Era Company; and the defendant Tianyidi Company did not provide contrary evidence to prove the fact that the work was not created by the plaintiff.
Based on the above factors, in accordance with Article 15 of the Copyright Law of the People's Republic of China, it can be determined that the plaintiff New Era Company is the producer of the MTV-"Late Autumn Mao Ning" music television work. Have copyright in this work according to law.
According to the business scope approved by the industrial and commercial administration authorities on the legal person business license of the defendant Tianyudi Company, the defendant has the business qualifications to operate KTV projects. The notarial certificate issued by the Qingshan District Notary Office in Wuhan City, Hubei Province in response to the plaintiff’s evidence preservation application and the CD evidence recording the plaintiff’s evidence collection process show that the defendant has the equipment and devices to project MTV music television programs and has the ability to project them to unspecified consumers. MTV music television conditions; this evidence also shows that the defendant not only provides consumers with catering, food, tobacco and alcohol consumption items, but also provides consumers with supporting services such as private room services, specific space enjoyment services, and background environment consumption. The defendant's business method is to bundle the private room environment built mainly with MTV music television with the catering products operated by the defendant Tianyidi Company and other consumer goods provided to consumers. It is precisely because the defendant provides consumption items in the MTV music and television environment that its consumption venues will attract unspecified consumer groups to enjoy comfortable service consumption. The defendant's provision of MTV music television to consumers is conducive to improving the defendant's competitiveness, and its behavior is a commercial promotion act. Therefore, the defendant's provision of MTV music television to consumers has a commercial purpose.
As mentioned above, the plaintiff New Era Company is the copyright holder of the MTV-"Late Autumn Mao Ning" involved in the case, and enjoys the right to screen the music television work in accordance with the law. The plaintiff New Era Company did not give the defendant permission to use the work involved in the MTV-"Late Autumn Mao Ning" for commercial purposes; the defendant had no evidence to prove that the use of the work was with the plaintiff's consent and permission, nor could it prove that there was a legal reason for broadcasting the work to consumers.
Therefore, the defendant Tianyidi Company played two TV music tracks from the involved MTV-"Late Autumn - Mao Ning" to the public in the form of karaoke without the plaintiff's permission, and its behavior infringed the plaintiff's rights. MTV has the right to display music television works, so the plaintiff’s claim is established.
About the issue of the amount of economic loss compensation for the plaintiff New Era Company. During the lawsuit, the plaintiff provided relevant evidence and requested that its economic losses be calculated based on the standard of 50,000 yuan per song. Since this standard was formulated by the relevant Hong Kong departments and is applicable to Hong Kong entertainment venues, this evidence has no direct correlation with the relevant facts disputed in this case. Moreover, the defendant purchased and used the MTV music video disc involved in the case on January 3, 2004.
Therefore, this court does not support the above-mentioned claim of the plaintiff; the defendant screened the MTV music works involved in the case at its business premises at the request of consumers, and its screening behavior was bundled with other consumer activities. The amount of profits the defendant made as a result was also limited. Cannot be calculated. Therefore, for the economic losses of New Era Company, the plaintiff in this case, this court will compensate the defendant at its discretion based on the defendant’s infringement method, broadcast venue, duration, business scale, and the subjective intention of the defendant’s infringement.
As for the plaintiff New Era Company’s request for the defendant Tianyidi Company to publish an apology statement in a national newspaper, because the screening right is the property right of the copyright in the plaintiff New Era Company’s MTV music and television works, it is not involved. The plaintiff’s right to identity is an issue, so this court will not support the plaintiff’s claim.
After deliberation of this case by the collegial panel, this court based on Article 128 of the Civil Procedure Law of the People's Republic of China and Article 10 of the Copyright Law of the People's Republic of China In accordance with the provisions of Item (10) and Paragraph 2 of one paragraph, Item (1) of Article 47, and Paragraph 2 of Article 48, the judgment is as follows:
1. Defendant Wuhan Tianyu As of the effective date of this judgment, Di Entertainment Co., Ltd. will immediately cease infringement on the screening rights of the two MTV works "Late Autumn" and "Heart Rain" enjoyed by the plaintiff Guangzhou New Era Audio and Video Company;
2. The defendant Wuhan Tianyidi Entertainment Co., Ltd. shall compensate the plaintiff Guangzhou New Era Audio and Video Company for economic losses of 16,000 yuan within ten days after this judgment takes effect;
3. Reject the other claims of the plaintiff Guangzhou New Era Audio and Video Company.
The case acceptance fee for this case is 3,510 yuan, of which 702 yuan is borne by the plaintiff Guangzhou New Era Audio and Video Company; 2,808 yuan is borne by the defendant Wuhan Tianyidi Entertainment Co., Ltd.
If you are dissatisfied with this judgment, you can submit an appeal to this court within fifteen days from the date of delivery of the judgment, and submit copies according to the number of opposing parties, and appeal to the Hubei Provincial Higher People's Court. The appellant should prepay the appeal case acceptance fee of RMB 3,510 when submitting the appeal, and the payment should be remitted to the Higher People's Court of Hubei Province. The bank where the account is opened: Dadongmen Branch of Agricultural Bank of China Wuchang Branch, the account name: Hubei Provincial Department of Finance Extra-budgetary Funds Finance Special account, account number 030501040003445, clearing bank number: 838188. If the appellant fails to prepay the litigation fees within seven days after the expiration of the appeal period, the appeal will be automatically withdrawn.
Presiding Judge Yin Wei
Judge Xu Jixue
Acting Judge Fu Jianqing
March 20, 2005 One day
Secretary Xu Lei