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A virtual idol refers to a simulated idol constructed in forms of painting, animation, Computer Graphics (CG), etc., which carries out idol activities in virtual environments such as the Internet. In recent years, legal disputes and public opinion controversies arising from virtual idols have frequently come into public view. In 2024 in particular, the Suzhou Internet Court and the Hangzhou Intermediate People's Court rendered judgments respectively on the "first dispute case over image damage of virtual anchors" and the "first virtual digital human infringement case", which has further triggered in-depth discussions in the industry on legal issues related to virtual idols involving personality rights, intellectual property rights, labor law and other relevant fields. Starting from the categories and development of virtual idols, this article conducts a preliminary exploration of legal issues related to virtual idols such as the utilization of personality elements and intellectual property protection.

I. Evolution and Categories of Virtual Idols

I. The Emergence and Development of Virtual Idols

The term "virtual idol" first originated in 1990 from the animation *Super Dimension Fortress Macross* and the eponymous game. As the featured virtual character Lynn Minmei gained widespread popularity, the animation studio released physical albums under the name of this virtual character, making Lynn Minmei known as the "ancestral virtual idol". Since then, virtual idols have gone through several development stages with distinct characteristics. The first generation of virtual idols in the true sense are "virtual singers" represented by Hatsune Miku and Luo Tianyi. Virtual singers (VOCALOID) are no longer mere virtual images. Based on sound source databases and speech synthesis software, they generate songs and performances from content input by users. If "virtual singers" have laid the foundation for the UGC (short for User Generated Content, i.e. user-created content)-based business model of virtual idols, the emergence of "virtual streamers" (VTuber) has further strengthened this attribute of virtual idols. In 2016, with the rise of the live streaming industry, virtual streamers represented by Kizuna AI began to capture traffic and have maintained great popularity to date. Currently, the content output of virtual idols has long gone beyond the scope of songs, extending to such sectors as song and dance performances, game live streaming, daily Vlogs, plot creation, marketing, and live-streaming e-commerce, among others. It shall be noted that in daily usage, the term "virtual idol" often has similar connotations to terms including "virtual image", "virtual digital human", "virtual human", "digital human" and "virtual streamer". However, this article only discusses "virtual idols" in the narrow sense, that is, entities that carry out activities similar to those of real idols by using digital images and digital technologies.

(II) Types of Contemporary Virtual Idols

Looking back on the development course of virtual idols, it is not difficult to find that every leapfrog development thereof is driven by technologies. Contemporary virtual idols are produced by virtue of digital technologies such as speech synthesis, Virtual Reality (VR), Augmented Reality (AR), Artificial Intelligence (AI) and holographic projection. According to the differences in the proportion of technology-driven factors, they can be roughly divided into the following three categories.

1. Real-person Conversion Type

Real-person derived virtual idols are created based on the real images of popular celebrities. The images, physical postures and behavioral styles of real idols are transformed via digital art to form a virtual "avatar" with clear correspondence to the real idol, which can replace the real celebrity to conduct idol-related activities on e-commerce platforms, digital media and other occasions. A well-known example is "Qianmiao", the avatar of Yi Yangqianxi on the Tmall platform, which once achieved the impressive record of exceeding 10 million popularity points only three days after its launch.

2. Real-person Role-play Type

Virtual idols of the live-action performance type represent the mainstream of the current virtual idol market. Both this type of virtual idols and "fully virtual type" virtual idols are preset with a basic virtual image, commonly known as the "avatar shell". Real actors wearing facial recognition and motion capture devices convert their own facial expressions and body movements into dynamic images of the virtual idols, and these actors are referred to as "real performers behind the virtual avatars". The once highly popular virtual idol girl group A-SOUL is a typical representative of such virtual idols.

3. Fully Virtual Type

The main difference between fully virtual idols and virtual idols of the real-person performance type lies in the proportion of their operation driven by artificial intelligence technology. This type of fully virtual idol is completely driven by technologies and algorithms, and does not rely on the "person behind the avatar" (commonly referred to as "zhong zhi ren" in the virtual idol industry). According to publicly available information, "Ailing", the virtual streamer launched by Tencent, is relatively close to this category. Through deep learning based on massive volumes of data, Ailing is capable of carrying out a variety of activities including singing, lyric writing, calligraphy and live streaming uninterruptedly around the clock.

II. Utilization of Personality Elements of Virtual Idols

All types of virtual idols are inseparable from the use of personality elements of natural persons, including voice, portrait and other image elements, as well as names. In this sense, virtual idols can be understood as a business model that realizes value transformation mainly through the "commercial exploitation of personality elements" [1]. The following briefly introduces the current status of utilization of personality elements, relevant legal challenges and corresponding countermeasures in the current virtual idol industry.

(I) Voice Rights and Interests

The creation of virtual idols is based on "speech synthesis". "Voice" is a critical driving force for the origin and development of virtual idols, and constitutes one of the most important components of a virtual character's image. Affected by the development stage and industry practices, infringements upon voice rights and interests are widespread in various links of virtual idol-related operations, including idol production, fan creation and business expansion. Examples include unauthorized recording and broadcasting in the idol production link, illegal collection, recording, interception and processing in the fan creation link, use beyond the scope of authorization and abuse of deepfake technology in the business expansion link. [2]

Article 1023 of China's Civil Code stipulates that the provisions on the protection of portrait rights shall apply mutatis mutandis to the protection of the voices of natural persons, which explicitly protects voice interests as a special type of personality interest. In the dispute between He Mou and Weibo Vision Technology [3], the court ruled that the short video involved constituted infringement on the portrait and voice of the plaintiff He, which expressly confirmed the voice interests of natural persons. The first "AI voice infringement case" in China adjudicated recently further clarifies that voice interests extend to "voices" processed by speech synthesis technology. The judge pointed out that, "China's Civil Code has a separate Book on personality rights, and writes the protection of 'voice' into the Civil Code in the form of legislation for the first time, explicitly stipulating that the protection of natural persons' voices shall apply mutatis mutandis the provisions on the protection of portrait rights, which embodies the legislative spirit of comprehensively respecting and protecting personality rights and interests. It is worth noting that as a type of personality right and interest, voice is of personal exclusivity, and the voice of any natural person shall be protected by law. The authorization for audio recordings does not mean authorization for the AI-based processing of voice. Without the permission of the right holder, unauthorized use or permission of others to use the voice in audio recordings constitutes infringement." [4]

The increasing prominence of disputes over voice rights and interests in judicial practice has raised requirements for the standardization of the industry. Users of sound sources shall obtain the informed consent and corresponding authorization from right holders, and the purpose and scope stipulated in the authorization agreement shall be as explicit as possible. Where the sound source is not directly obtained from the natural person to whom the voice belongs, the user shall verify relevant authorization documents and the supplier's compliance certificate. When concluding relevant authorization agreements, voice right holders may fix the right chain by means including requiring the addition of audio watermarks.

(II) Right to Portraiture and Right to Name

The creation of both real-person adapted virtual idols and real-person portrayed virtual idols needs to be based on natural persons' facial images, lip expressions and body movements, which inevitably involves issues concerning the protection of the relevant natural persons' right to portrait. In contrast, real-person adapted virtual idols generally directly use the names, stage names and other identifiers of real-life celebrities, thus making the relevant generated outputs fall within the scope of protection of natural persons' right to name.

In the case of personality rights infringement by "AI Companion" software, which is included in the typical civil cases concerning judicial protection of personality rights after the promulgation of the *Civil Code of the People's Republic of China* released by the Supreme People's Court, the software involved used the name and portrait of a celebrity surnamed He to create a virtual character and produce interactive materials, and projected the integrated overall image of the aforementioned celebrity composed of his or her name, portrait, personality traits and other elements onto the AI character. This AI character forms the virtual image of the celebrity surnamed He. The aforesaid act constitutes the use of the overall personality image covering the celebrity's portrait and name, and infringes upon the celebrity's right to name, right to portrait and general personality right. [5] This case clarifies that the personality rights of a natural person extend to his or her virtual image, and serves as a reminder for the protection and balancing of rights of all relevant parties, including virtual idol developers, behind-the-scenes operators of virtual idols (commonly known as *zhong zhi ren*), and the corresponding real-life idols that virtual images are based on.

Pursuant to Article 993 of the *Civil Code of the People's Republic of China*, "A civil subject may license others to use his or her name, appellation, portrait and the like". When using image elements of third parties such as real-life celebrities and the "zhong zhi ren" (real performers behind virtual idols), developers and operators of virtual idols shall obtain corresponding authorization, and strictly confine the use within the licensed scope covering goods, services, trademarks and other authorized subject matters, so as to avoid disputes.

As exemplified by the hiatus of "Carol", a member of a well-known virtual girl group, and the group-wide doxxing incident, disputes over the right to privacy, right to reputation and rights and interests in personal information arising from virtual idols' use of natural persons' voices, portraits and names have emerged frequently. This will be further elaborated in the following section entitled *Legal Issues Concerning "Behind-the-Scenes Performers" of Virtual Idols*.

III. Intellectual Property Protection for Virtual Idols

The static images of virtual idols are embodied as "patterns", while their dynamic images are composed of "performances", and the underlying technologies supporting both their static and dynamic images are highly sophisticated and cutting-edge. As an outcome jointly constructed by multiple parties including developers and operators, advertisers or employing entities, content creators, live-action actors, fans and artificial intelligence,[6] it has the combined nature of intellectual achievement and goodwill, and naturally qualifies as an object of intellectual property protection.

(I) Copyright

There is no difference between the "virtual avatars" of virtual idols and digital works of art, and their protection as fine art works has been upheld in numerous judicial precedents. For example, in Case [7] *Dispute over Infringement of the Right of Communication through Information Network of Works between miHoYo and Yixiu Network Technology*, the court held that the work presenting the appearance of the virtual idol "YOYO Lumi" "presents an aesthetically appealing image and artistic effect via lines, colors and their combinations, which embodies personalized expression", and that "the work meets the requirement of originality and has artistic aesthetic value, which falls into the category of fine art works within the meaning of the Copyright Law of China". In another Case [8], Yixiu Network Technology used, without authorization, the image of NOVA, which miHoYo intended to further develop into a virtual idol, in the advertising and promotion of its operated mobile game *Yaoji Lu*. The court finally ruled that Yixiu Network Technology had infringed miHoYo's right of communication through information network in respect of the involved fine art work.

From the perspective of virtual idol development and operators, they shall lawfully obtain the relevant rights to the "avatar" through such means as commissioned creation or staff employment, sign a clear agreement on the ownership of intellectual property rights with parties participating in the creation of the "avatar" such as illustrators, conduct copyright registration for the entirety, parts and other creative elements of the "avatar" as soon as possible, and strengthen the monitoring of infringement clues and rights enforcement actions. For actual creators, they may negotiate and determine relevant fees with development and operators by referring to the popularity of the IP and prevailing royalty standards, execute relevant authorization and license agreements prudently, and fully safeguard their legitimate rights in aspects including authorship attribution.

Apart from the "virtual avatar", the idol activities of virtual idols may involve the creation of musical works, choreographic works, literary works and the most common audiovisual works. The party responsible for the development and operation of virtual idols shall specify the ownership of rights and forms of use through user agreements and agreements signed with the producing parties, so as to avoid unnecessary disputes. The performers behind virtual idols, animators, editors, directors and video editors shall pay attention to the stipulations on the scope of use specified in the agreements, and strive for the maximization of their property interests.

(2) Trademark Right

The names, "skins" and even vocal elements of virtual idols can all be protected under trademark rights. For example, the trademark opposition case concerning the mark "LUOTIANYI", which was selected into the *Top 10 Typical Trademark Opposition Cases of 2019* released by the China National Intellectual Property Administration (CNIPA), has affirmed the protectability of virtual idol names and prior rights and interests. In the trademark infringement dispute between Xinchuanghua Culture and Zhaidianshe Trade, the "Hatsune" trademark used by Zhaidianshe Trade is completely identical to the core dominant part of the trademark of the virtual idol "Hatsune Miku", which constitutes a similar trademark. The "Hatsune Miku" trademark has high market reputation and shall be granted strong protection. [9]

From the perspective of the IP incubation path for traditional animation virtual characters, the economic benefits obtained from animation works and other carriers of virtual characters are relatively limited, and the main revenue of development and operation entities comes from derivative development. It is foreseeable that more infringements, such as selling "same-style" products of virtual idols, reproducing and distributing pictures, videos of virtual idols, and other free-riding acts taking advantage of the popularity of virtual idols, will emerge in online sectors including digital media and e-commerce platforms in the future. As development and operation entities of virtual idols, they shall conduct comprehensive trademark portfolio planning for the names, images and other relevant elements of virtual idols at the early stage of IP incubation, so as to lay a sound right foundation for the subsequent implementation of idol activities and derivative development.

(III) Neighboring Rights

One of the key differences between virtual idols and traditional virtual images lies in their ability to conduct interactive "performances", including live streaming, singing, dancing, poetry writing, painting and other activities. Therefore, current legal disputes related to virtual idols are mainly concentrated on the neighboring rights involved in their "performances". During the second instance [10] of China's first infringement case involving virtual digital humans, the plaintiff and the defendant launched heated debates over the determination of the performer of the virtual idol Ada and the ownership of the performance right. The court finally held that the relevant video recordings of the virtual idol may cover the copyright in the fine art work corresponding to the virtual idol image, as well as the right of the video producer and the performer's right. In combination with the provisions of Article 44 of the Copyright Law and the fact that the "person behind the virtual idol" (the individual providing voice, motion capture and other performance support for the virtual idol) is an employee of the plaintiff company, the performer's right belongs to the development and operator of the virtual idol.

Judging from the judicial adjudication views reflected in the aforesaid cases and the facts consistent with industrial logic, the process of "performance" is exactly the process where the "Zhongzhiren" (the individual providing performance support for the virtual idol) provides samples and synchronous data [11]. It is the "Zhongzhiren" of a virtual idol that acts as the actual "performer" of the virtual idol's performance activities. Accordingly, the agreement on rights ownership between the developer and operator of the virtual idol and the "Zhongzhiren" is of critical importance. Due to the inherent characteristics of virtual idols, it is almost impossible for the "Zhongzhiren" to exercise personal rights such as the right to indicate their identity as a performer, and they may only strive for benefits to the maximum extent in terms of property rights, including labor remuneration and licensing fees for personality elements such as portrait. For the developer and operator, they shall specify the "performance" acts of the "Zhongzhiren" as "employment performances" by entering into clear agreements such as labor contracts with the "Zhongzhiren", so as to safeguard their own legitimate interests.

(IV) Patent Rights and Other Rights

As the development of virtual idols is heavily reliant on technologies including computer graphics, graphic rendering, motion capture, deep learning and speech synthesis, development and operation entities may consider protecting their legitimate rights by means of filing patent applications in combination with trade secret protection and other measures. For example, Tencent once owns the patent [12] entitled *Processing Method, Apparatus, Device, Medium and Program Product for Virtual Concerts*. With regard to other unfair competition acts such as unauthorized use of virtual idol images for false publicity, the aforesaid entities may further protect their legitimate rights by instituting an action for unfair competition.

IV. Legal Issues Concerning "the Person Behind the Avatar"

In addition to the widely concerned issue of the ownership of rights related to the personality elements invested by "the real persons behind virtual idols" in virtual idol activities and their performance acts during the performance process, the personality right issues arising from the doxxing of such persons and labor disputes caused by excessively low remuneration have also frequently given rise to discussions in the industry.

(I) The Issue of "Doxxing"

The "doxxing" of virtual idols refers to the online disclosure of personal identity information of the "person behind the virtual idol" (the natural person who provides voice acting and performance support for the virtual idol). When the "person behind the virtual idol" is doxxed, his or her personal dignity-related rights and interests, including personal information rights and interests, the right to privacy, and even the right to reputation, are exposed to threats. In the meantime, doxxing is also fatal to the IP incubation of virtual idols. Fans support virtual idols out of recognition of the virtual characters corresponding to their "virtual avatars". Once a virtual idol is doxxed, its commercial lifecycle will basically come to an end, which is equivalent to the "career collapse" of a real-life idol caused by a reputational scandal.

Disputes arising from the doxxing of virtual idols have shifted from online public opinion to judicial practice. In Case [13] of Dispute over Online Tort Liability between Xu and Zhongshi Xinke Animation, NGA Forum is the right holder of the intellectual property rights of the virtual idol "Xinkeniang" (Xin Ke). A dispute arose between the two parties as Xu, the prototype for the voice dubbing and motion capture of Xinkeniang, resigned from his internship post, which may affect the continuous operation of the virtual idol. NGA Forum subsequently issued an announcement alleging that Xu had falsified academic credentials to fraudulently obtain the job, disclosed the company's trade secrets and suffered from depression, thus harming the legitimate rights and interests of the company. The court finally held that NGA Forum had infringed upon the right to privacy and right to reputation of the "person behind the virtual idol" (i.e. Xu), and rendered a judgment ordering NGA Forum to make a public apology and pay compensation for mental distress.

To prevent the risk of doxxing, virtual idol developers and operators as well as the behind-the-scenes performers of virtual idols shall pay special attention to the stipulations of confidentiality clauses when executing relevant agreements, and reinforce the confidentiality of their identity information during operation. For example, the identity information of the aforesaid behind-the-scenes performers may be defined as falling within the scope of "trade secrets", and corresponding liability for breach of contract shall be agreed upon.

(II) Labor and Other Disputes

In industry practice, not all "persons behind virtual personas" have a labor contract relationship with enterprises as the relevant party in China's first virtual digital person infringement case. The cooperation and contracting methods between the two parties are diversified, including service relationship, brokerage relationship and other forms. In the first dispute case over image loss of virtual streamers, Shi, the "person behind the virtual persona" involved, signed a *Virtual Streamer Signing Contract* with a Suzhou-based information technology Co., Ltd. as an MCN agency. The contract stipulated that the company shall provide Shi with the virtual image "Chenghuang" as the virtual avatar, as well as operation support and activity resources of live streaming platforms. Afterwards, Shi failed to carry out live streaming as agreed, a dispute arose between the two parties, and the company filed a lawsuit with the court. The court finally ruled that Shi had breached the contract and shall pay liquidated damages to the company.

In response to risks arising from the cooperative relationship between "zhong zhi ren" (behind-the-scenes performers of virtual idols) and virtual idol developers and operators, judges also pointed out that MCN institutions shall attach importance to the protection of the rights and interests of "zhong zhi ren" and compliance training for such personnel, strengthen the security protection of the personal information of "zhong zhi ren", timely conclude labor contracts with "zhong zhi ren" who meet the characteristics of labor relations, and specify the rights and obligations of both parties through such means as live streaming contracts for "zhong zhi ren" who do not meet the characteristics of labor relations. [14]

5. Compliance of Virtual Idol Activities

In reports on the aforesaid "first dispute case over damage to virtual streamer image", judges also put forward suggestions on the compliance of words and deeds of "the person behind the virtual avatar" and platform management. "Virtual streamers shall refer to real-person streamers, draw their own behavioral boundaries in accordance with relevant codes of conduct, and avoid such words and deeds as false publicity, inducing irrational consumption, promoting counterfeit and shoddy goods, accepting rewards from minors, and disseminating vulgar and pornographic content. Platforms shall strengthen management, conduct identity verification for virtual streamer registration and advance record-filing of virtual avatars, intensify content governance, and prominently mark AI-generated content. Where a virtual streamer account commits acts of infringing upon others' intellectual property rights and other legitimate rights and interests, penalties such as content removal, account suspension and account ban shall be imposed according to the degree of impact, so as to create a clean and sound live streaming environment."

As the judge pointed out, when engaging in marketing-oriented idol activities, virtual idols shall, like real-life idols, comply with relevant laws and regulations such as the *Advertising Law of the People's Republic of China*. As business entities, the development and operation operators shall possess corresponding industry qualifications and licenses, and shall also abide by relevant platform rules as well as other industry regulatory rules.

6. Conclusion

Recently, iiMedia Research released the *White Paper on the Development of China's Virtual Digital Human Industry 2024*. According to the data of the report, in 2023, the scale of the industry driven by virtual humans in China and the scale of its core market reached RMB 333.47 billion and RMB 20.52 billion respectively, and are expected to reach RMB 640.27 billion and RMB 48.06 billion respectively in 2025, showing a strong growth momentum. [15] As the core role in the field of virtual digital humans, the future development of virtual idols is undoubtedly the most high-profile. Facing the surging tide of industry development, this article, based on the current conflicts and disputes in the practice of the virtual idol industry, conducts a preliminary exploration of the legal challenges and protection measures confronting the development of virtual idols. As a business model with multiple legal attributes, the relevant rights involved in virtual idols shall be deemed as a bundle of rights [16], so as to "seek reality from the virtual" and explore more appropriate countermeasures in accordance with the interest demands of different subjects.

References

1. Chu Meng: *Copyright Concepts and Institutional Reform in the Metaverse Era*, *Intellectual Property*, No. 11, 2022.

2. Meng Xiaoyang & Du Chaofan, *Voice Infringement in the Virtual Idol Industry and Its Governance*, Journal of Southwest University of Political Science and Law, Issue 10, 2021.

3. Civil Judgment of Beijing Internet Court (2021) Jing 0491 Min Chu No. 29341.

4. Beijing Internet Court: *China's First Case of Personality Right Infringement Involving AI-Generated Voice: First-Instance Judgment Pronounced*, published on the official WeChat Public Account of Beijing Internet Court, https://mp.weixin.qq.com/s/_GxGaG6Q2NYHJWQuOtMyrQ, last accessed on May 27, 2024.

5. Civil Judgment of Beijing Internet Court (2020) Jing 0491 Min Chu No. 9526

6. Lü Jing, *Virtual Idols: Super-powered Simulacra Constructed by Multiple Subjects and Digital Avatars in the Metaverse Era*[J], New Films, No. 5, 2022.

7. Civil Judgment of Guangzhou Internet Court (Case No. (2020) Yue 0192 Min Chu No. 46388)

8. Civil Judgment of Guangzhou Internet Court (2020) Yue 0192 Min Chu No. 46388.

9. Civil Judgment of Hangzhou Railway Transport Court (2017) Zhe 8601 Min Chu No. 3709.

10. Civil Judgment of Hangzhou Intermediate People's Court, Case No. (2023) Zhe 01 Min Zhong No. 4722.

11. Sun Shan: *Predicaments in the Regulation of "Performances" of Virtual Idols under the Copyright Law and Corresponding Solutions*, published in *Intellectual Property*, Issue 6, 2022.

12. The patent publication number is CN114120943A.

13. Civil Judgment of Beijing Internet Court, (2020) Jing 0491 Min Chu No. 17175

14. Jiangsu High People's Court: *"ACG Virtual Streamer Goes on Unauthorized Strike: How to Calculate the Losses of the Company?"*, published on the WeChat Official Account of Jiangsu High People's Court, https://mp.weixin.qq.com/s/zIhSLhpkq5wTBmsSBmrbDA, last accessed on May 29, 2024.

15. iiMedia Research: *2024 White Paper on the Development of China's Virtual Digital Human Industry*, published on the Official WeChat Account of iiMedia Research, https://mp.weixin.qq.com/s/dsmwjsQoGvRi2d2BJVgb3w, last accessed on May 29, 2024.

16. Wu Yijun, "Extraterritorial Experience of Copyright Protection for Virtual Idols and China's Countermeasures", published in *Youth Journalist*, Late March 2023.