TYGlobe

Source: Wu Tao, Lawyer

Summary of Preceding Circumstances

Recently, the "Case Focus" column of the official WeChat public account of Shanghai Jinshan District People's Court reported a case in which Lawyer Wu Tao of TYGlobe successfully assisted the plaintiff in copyright protection.

Case Background

Company A is the production entity and presenting entity of the TV drama *The Untamed*. Pursuant to the *Co-Investment and Production Contract* concluded between Company A and the co-presenting entities, Company A lawfully holds relevant intellectual property rights over the characters, props, scenes and logos related to the drama, and enjoys competitive interests in the commercial development of relevant elements of the drama. Company A has launched the "Official *The Untamed* Mall" on all major e-commerce platforms, to carry out commercial development of derivative products of the drama and sell relevant merchandise. Without authorization, Company B has designed the character images from *The Untamed* into cartoon characters, sold stationery peripheral products including notebooks, pencil cases and other products in the online store it operates, and marked text descriptions such as "Chen Qing", "The Untamed", "same style" and "peripheral" in multiple prominent positions including product titles, sample images and other sections.

Company A alleges that Company B has infringed its copyright and constituted unfair competition.

The Court's Opinion

In this case, the TV series *The Untamed*, lawfully adapted from the novel *Grandmaster of Demonic Cultivation*, constitutes a derivative work. The exploitation of a derivative work requires dual licenses from both the creator of the derivative work and the author of the original work. Namely, the conduct of Company B has not only infringed upon the copyright of Company A in the TV series *The Untamed*, but also violated the lawful rights and interests of the copyright holder of the novel *Grandmaster of Demonic Cultivation*.

Company B used the wording "Chen Qing Ling" in its product names without authorization, for the purpose of drawing on the popularity of the TV series *Chen Qing Ling (The Untamed)* to gain higher public attention, increase product search volume, and obtain more transaction opportunities. Such act is likely to cause the relevant public to mistakenly believe that the aforesaid products have a specific association with the series and its right holders. This is an act of "free-riding" and "trading on popularity", which demonstrates the intent to profit from the reputation of the series. The aforesaid act not only damages the legitimate competitive interests of the right holders of *Chen Qing Ling (The Untamed)*, disrupts the order of market competition and constitutes unfair competition, but also causes confusion and misidentification among consumers and infringes on the legitimate rights and interests of consumers.

Lawyer's Notes

As can be seen from this case, in addition to driving viewership peaks during their broadcast period, popular films and television works have seen their subsequent economic value increasingly valued by copyright holders. Derivative products of such films and television works can also generate enormous commercial value, and such economic interests shall likewise be owned by the copyright owners of the relevant films and television dramas. Without prior permission, no person may use without authorization intellectual achievements including character images and script content of the aforesaid films and television works in connection with their own goods or services.

Peripheral derivatives such as props and models of hit films and TV dramas are also extremely popular. For example, *The Wandering Earth 2*, a film released during the 2023 Spring Festival film season, recorded over RMB 100 million in sales of its peripheral derivatives in only 9 days. Some merchants, who have keenly captured such business opportunities, embed the titles of films and TV dramas into the promotion of their sold products to attract consumers' attention. However, such acts may constitute infringement and unfair competition.