TYGlobe

Streamers and influencers active on online platforms possess commercial value by virtue of their high popularity and public attention. Highly popular streamers and influencers obtain commercial benefits through such methods as product endorsements and livestream e-commerce sales. However, after recognizing the promotion and sales capabilities of streamers and influencers, some merchants harbor improper intentions and use the likeness of streamers and influencers to promote and sell their own products without authorization. Recently, in a rights protection case of a well-known streamer and influencer represented by lawyers from Shanghai TYGlobe Law Firm, the court held that such acts of the merchants constitute unfair competition and infringement. Case Overview

trial court

People's Court of Siming District, Xiamen City

Case No.

(2024) Min 0203 Min Chu No. 17097

plaintiff

A Entertainment Co., Ltd.

defendant

B Trading Co., Ltd.

Cause of Action

Unfair Competition Dispute

Date of Judgment

September 29, 2024

The contracted artists of Entertainment Company A, namely "Couple X", are well-known streamers and influencers on a certain online platform. "Couple X" publish self-produced short lifestyle videos on their self-media accounts, which have been highly sought after and amassed a follower count of tens of millions. "Couple X" conduct livestreaming product sales via the online platform, with extremely remarkable business performance.

Trading Company B operates a store on a certain e-commerce platform, selling clothing and other products. In early 2024, Entertainment Company A found that Trading Company B had intercepted images of "Couple X" from their live broadcasts and short videos, used the said images for the promotion of the clothing products it sells, and prominently marked words such as "Same Style as Couple X" in the product names. Entertainment Company A filed a lawsuit with the Xiamen Court, claiming that Trading Company B shall cease the infringing acts, delete relevant product links and bear the economic losses.

Trading Company B argues that the images involved are screenshots captured from a video, which have low originality and therefore do not constitute photographic works. The garments shown in the images are very common on the Internet, and no infringement is constituted.

After trial, the court holds that "Couple X", artists under A Entertainment Company, have long engaged in activities including livestream e-commerce sales and video publishing under this online username, and enjoy high popularity in the online livestreaming and short video industry. As the contracted talent agency of Couple X, A Company is entitled to the right to safeguard legitimate rights and interests as supported by relevant evidence. B Trading Company, which has no affiliation with "Couple X" and has obtained no authorization therefrom, uses the name of "Couple X" and their livestreaming scenes for the promotion and display of its products in its self-operated e-commerce store. Such acts are sufficient to mislead the relevant public into believing that B Trading Company has specific connections such as commercial association and licensed use with A Entertainment Company and its contracted artists, which constitutes unfair competition. The court adjudicates that B Trading Company shall cease the infringing acts and compensate for the corresponding economic losses.

Lawyer's Notes This case is a typical dispute arising from product promotion and sales by leveraging the popularity of streamers and online influencers. When handling such cases, a reasonable rights protection strategy shall be selected based on comprehensive consideration of the specific circumstances of the case. The following are the case handling insights of the retained counsel for this case:

1. Selection of Basis of Claim: Right of Portrait or Intellectual Property Rights

Intuitively, it may seem more reasonable to carry out rights protection against such infringements on the ground of portrait right infringement, but the lawyers finally chose to conduct rights protection based on intellectual property rights out of the following considerations: On the one hand, such streamers and influencers are usually contracted artists of entertainment companies (also known as MCN institutions), who carry out activities under the investment, cultivation, packaging and planning of the companies. Therefore, the infringing acts also harm the interests of entertainment companies, which have stronger demand for rights protection. However, if rights are protected on the basis of portrait right, entertainment companies cannot directly participate in rights protection as plaintiffs in litigation. On the other hand, rights protection based on portrait right requires streamers and influencers to file lawsuits in their own names, which is bound to disclose a large amount of their personal information. To a certain extent, this will undermine the sense of mystery of streamers and influencers on online platforms and is not conducive to their future performing activities. In contrast, carrying out rights protection with entertainment companies as the litigation subjects can better protect the personal privacy of streamers and influencers. Based on comprehensive considerations, the lawyers handling the case finally chose to carry out rights protection on the basis of intellectual property rights.

2. Analysis and Determination of Specific Torts

During the court hearing of this case, the trial judge repeatedly asked the counsel representing the plaintiff to explicitly specify which item of intellectual property right infringement is claimed. The main reason is that different circumstances of such infringement acts may constitute different types of infringement. Content uploaded by influencer streamers usually includes self-shot short videos, promotional short videos and other forms of content. Short videos may be classified as audiovisual works, while live streaming videos lacking originality may be classified as video recordings. Lawyers shall adopt different rights protection schemes for such content of different natures in light of the different infringement methods adopted by infringing merchants. For example, portrait photos may fall into the category of photographic works. Where the uploaded content is a short video, the originality of the short video shall be analyzed. Self-shot short videos with originality are classified as audiovisual works, while promotional short videos lacking originality belong to video recordings. On this basis, the specific patterns of infringement acts in the case shall also be taken into consideration. Some infringement acts consist of unaltered use of influencer streamers' photos and short videos on the online stores of infringing merchants, under which circumstance a claim for infringement of the right of communication through information network may be considered. In other circumstances, only individual frames captured from short videos or live streams are used in the form of pictures. For such cases, it is more advisable to carry out rights protection on the grounds of unfair competition, as the "use" of the relevant work involved in such acts is too limited. In this case, the act of the infringing merchant falls into the latter category. Therefore, the counsel handling the case took unfair competition infringement as the legal basis for the infringement claim.

3. Notes on Ownership Certificate: Account of "the X Couple" → Livestreaming Influencer → Talent Agency

Streamers and influencers publish their performance videos or photos through accounts on online platforms. These accounts may be registered under the real name of the streamers, or in the name of their affiliated brokerage firms. Account names are usually online nicknames, and may be altered from time to time to meet the needs of event promotion. Therefore, proving that the account publishing the relevant information is indeed owned by the streamer or influencer is one of the difficulties in the handling of such cases. In the present case, the trial judge conducted a highly meticulous examination of this factual element. To this end, the counsel retained for the case prepared backend screenshots of the real-name registration of the account "Couple X". However, the backend real-name registration system does not display the complete identity information of the registrant, so the counsel further submitted the identity information of "Couple X" and other supporting materials in court for corroboration. As for the contractual relationship between online celebrity streamers and brokerage firms, producing the brokerage contract executed by both parties is undoubtedly the most direct and effective method. However, given that the submission of the signed agreement may lead to the disclosure of trade secrets, the counsel in the present case submitted the declaration of rights issued by the streamers and influencers instead. In addition, by reviewing the videos regularly posted by the streamers and influencers, the counsel found a short video uploaded by the streamers and influencers relating to their signing event, which further corroborates the brokerage relationship between the plaintiff in the present case and the streamers and influencers.

4. Certificate of Comparison between the Act of Infringement and the Original Work

Currently, some infringing merchants usually commit infringement by unauthorizedly using original works of streamers and influencers, or extracting individual scenes and frames from the aforesaid original works. "Which specific work or video released by the involved online celebrity streamer has the defendant infringed upon?" In this case, the trial judge required the lawyer to produce evidence to prove this fact, which requires the counsel handling the case to carry out a large amount of meticulous traceability and comparison work.

In this case, the lawyers traced the source from a large number of short videos and live stream clips published by "Couple X", identified the original videos corresponding to the relevant screenshots, and produced comparative evidence. It is worth noting that not all infringing screenshots are subject to accurate source tracing. For some individual infringing screenshots involved in this case, the counsel handling the case only found similar live stream content, but such content can still meet the required probative effect as long as it reaches the threshold of the trial judge's inner conviction.