The Importance of Creativity and Artistry of Works of Applied Art in Copyright Infringement Litigation
date: 2020-05-29 Dan Shi Read by:

    China is a participating country of the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights. According to the Copyright Law and the Regulations of the State Council on the Implementation of International Copyright Treaties, foreign works of practical art are protected by our laws.

    In judicial practice, the people's courts generally consider the protection of practical artistic works from the perspectives of practicality and artistry of practical artistic works. The practical part cannot be protected by the copyright law, but the artistic part can be included in the provisions of the copyright law "Art Works" and be protected. When applying for copyright protection, the owner of the foreign practical art work shall first examine it in terms of aesthetic significance. If the practical art work involved does not have the artistic height that the art work should possess, even if the alleged infringing product is similar to or substantially the same as the work in question, it cannot be protected as a copyrighted work.

    In the following, we will list two cases of Chinese judicial precedents, with a view to passing these cases to give readers a better understanding of the application of China copyright law in practice.

     “Mammut Children's Chairs and Stools” Copyright Infringement Case

    【Case Brief】                                                           

    Plaintiff INTEK-IKEA Systems Co., Ltd. alleges: Plaintiff was founded in 1943 and is the world's largest furniture retail company, with more than 190 franchised stores in 31 countries and regions. Mammut series of children's furniture is designed by the designer on behalf of the plaintiff under the guidance of the plaintiff. In 1994, the Mammut children's chair won the Swedish "Furniture of the Year" award, and the Mammut series of products were published in the catalog and many books many years ago.

    A few years ago, the plaintiff found that the defendant plagiarized the design of the plaintiff’s copyrighted Mammut series without the permission of the plaintiff, and produced and sold child chairs with product models ZTY-522, ZTY-525, ZTY-525A, ZTY525-B, and displayed infringing products on their company websites. As early as 2004, the plaintiff sent cease and desist letters to the defendant several times to stop the infringement, but the defendant ignored it and instead applied for the infringing design for a design patent, which was later deemed invalid by the reviewing agency.

    The plaintiff believes that the defendant's production, sales and website publicity violated the copyright enjoyed by the plaintiff and caused great economic losses to the plaintiff. Request for decree: 1. The defendant immediately ceases all acts that infringe the copyright of the plaintiff’s Mammut series of works; 2. The defendant immediately recovers the infringing products that have been put into the market, destroys the inventory of infringing commodities and produces molds, impressions, and destroys those with infringing commodities packaging and promotional materials; 3. The defendant immediately deletes the infringing product images displayed on the his webpage; 4. The defendant compensates the plaintiff for economic losses of RMB 500,000 including reasonable expenses; and 5. The defendant published a statement in the "Xinmin Evening News" and "Qianjiang Evening News" about its infringement to eliminate the impact.

    The defendant Taizhou Zhongtian Plastic Industry Co., Ltd. argued that: 1. The plaintiff does not have the subject matter of the suit; 2. The plaintiff has no evidence to prove that it has copyright on the Mammut series of products. Even if the plaintiff has the relevant rights, Mammut products is not a kind of the works of applied art, but only a practical industrial product, because it does not have creativity and artistic characteristics; 3. Before the plaintiff's product design is completed, there is furniture in the animation work that is basically consistent with its product; and 4. The product produced by the defendant was independently created by the designer of the defendant, and there is no fact of infringing the copyrights of others. In summary, the court was requested to reject the plaintiff’s request.


    【Court opinion】

    The second paragraph of Article 2 of the Copyright Law of the People’s Republic of China stipulates: “Any work of a foreigner published outside the territory of the People's Republic of China which is eligible to enjoy copyright under an agreement concluded between the country to which the foreigner belongs and China, or under an international treaty to which both countries are parties, shall be protected in accordance with this Law.” China is a participant in the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights. In the Berne Convention, works of practical art are classified as “literary and artistic works” and are protected. According to the above provisions, foreign works of practical art are protected by Chinese laws. The defendant's claim that the plaintiff does not have the qualification to be the subject of the case has no legal basis and will not be supported.

    Article 3 of the Copyright Law stipulates:"For the purpose of this Law, the term "works" includes works of literature, art, natural science, social science, engineering technology and the like which are created in the following forms: ... (4) works of fine art and photographic works; ..." In the foregoing regulations, the works of practical art are not listed as works. In judicial practice, in accordance with the international conventions and relevant laws and regulations that China has participated in, the protection of copyright in practical art works is considered from the perspective of practicality and artistry of the works of practical art, and copyright protection does not apply to the practical part. Some of them can be classified as "art works" provided by the Copyright Law and protected according to law.

    Article 4 of the "Implementation Regulations of the Copyright Law of the People's Republic of China" stipulates: "Art works refer to paintings, calligraphy, sculptures, etc. which are aesthetically significant flat or three-dimensional modeling art works composed of lines, colors, or other means. When applying for copyright protection, the right holder of a foreign practical art work should examine whether the practical art work involved in the case has the artistic height that the art work should possess, and analyze the artistic height of the work from an aesthetic sense. Generally, it is investigated from the aspects of whether the ideas and expressions of the works are original.

    In this case, the Mammut child chair involved is composed of three parts: the back, the cushion and the legs. The back is composed of a trapezoidal solid wood and three rectangular wooden strips, of which the upper trapezoidal solid wood occupies the entire back of the chair. In one-half of the space, the chair cushion is the basic structure of a general chair stool. The chair legs are composed of four vertical vertebral bodies, which are narrow and wide. The Mammut children's stool is composed of a stool surface and a stool leg. The stool surface is a circular entity equal to the upper and lower. The shape is the same as that of a normal children's stool. The stool legs are four spindle-shaped bars. According to the above facts, in terms of expression form, the design points of the Mammut children’s chair and children’s stool are mainly reflected in the modeling lines. The simple and smooth lines try to reflect the simple and slightly childlike work ideas, but such design ideas can't be completely distinguished from other ordinary children's product design ideas; in terms of the originality of expression, the overall shape of the Mammut child chair and child stool is not much different from that of most ordinary child chairs and child stools. In general, the Mammut children's chair and stool belong to the children's chair and children's stool with relatively simple design, and do not have the artistic height that art works should have. Therefore, although the child stools and child chair products produced by the defendant Zhongtian Company are similar or basically the same as the Mammut child chair and child stool of the plaintiff IKEA, they do not constitute an infringement of the plaintiff's copyright.

    In summary, the court ruled that the defendant’s above actions did not constitute an infringement of the plaintiff’s copyright.

    "Tang Yun Cloakroom Combination Cabinet" Copyright Infringement Case

    【Case Brief】

    The plaintiff Zuo Shangmingshe complained in the first instance that he created the "Tangyun Cloakroom Cabinet" furniture product on February 1, 2009. The plaintiff found that the defendant sold the mahogany cloakroom with the brand of "cross-border" and that the plaintiff's copyrighted "Tangyun cloakroom combination cabinet" was completely consistent with the overall appearance and design. The "Tangyun Cloakroom Combination Cabinet" is a practical artwork, and the defendant infringed the copyright that the plaintiff enjoyed for the work. The plaintiff requested the court to order: 1. The defendant immediately stopped the production and sale of mahogany furniture that infringed the copyright of the plaintiff; 2. The defendant published a statement on its official website and "Xinmin Evening News" to eliminate the adverse effects; 3. The defendant compensated the plaintiff for economic losses RMB 2,000,000; and 4. The defendant compensates the plaintiff for the reasonable expenses incurred to stop the infringement, totaling RMB 95,513.5.

    The defendant argued in the first instance that the case had expired. The plaintiff's work embodies the combination of common furniture elements in life, and its design lacks creativity and artistry, and does not constitute an art work in the sense of copyright law. The defendant's production of products is not a copy or distribution act in the sense of copyright law, and the defendant's products are all independently created by the company's designers, and do not constitute infringement.

    After trial, the court of first instance held that the "Tangyun Cloakroom Cabinet" product produced by the plaintiff was a practical industrial product. This product was not a work in the sense of copyright law, and its production was not a copy in the sense of copyright law. Therefore, the defendant’s behavior did not constitute infringement. The plaintiff refused to accept the judgment of the first instance and appealed to the higher court.KKJ1W03VNY}HFFRLVW%RUKT.png【Opinion of the Second Instance】

    1.    "Tangyun Cloakroom Cabinet" belongs to works protected by China's Copyright Law.

    Article 2 of the "Implementation Regulations of the Copyright Law" of our country stipulates that the works referred to in the Copyright Law refer to intellectual achievements that are original in the fields of literature, art and science and can be copied in a tangible form. In this case, the overall shape of "Tangyun Cloakroom Cabinet" incorporates a variety of Chinese and Western elements. The whole is aesthetically pleasing, has a certain aesthetic significance, meets the originality requirements of the work, and can be used in industrial mass production, with reproducibility and practical features. Based on this, the Court believes that the "Tang Yun Cloakroom Cabinet" advocated by the appellant constitutes an artistic work of practical value and should be protected by our country's copyright law.

    2.    The defendant's actions infringed the copyright of the "Tang Yun Cloakroom Cabinet" work.

    In this case, comparing the works of "Tangyun Cloakroom Cabinet" with the accused infringing product, the two are L-shaped as a whole, and both reflect the Chinese symmetrical design style. The plates and patterns of the two are similar; the design of the wardrobe door is similar; the decoration of copper fittings is also the same, and the overall design and the unique decorative features constitute substantially the same.

    At the same time, the "Tang Yun Cloakroom Cabinet" work was formed and published earlier than the accused infringing product, and the composition between the two is substantially the same. The defendant had the conditions to contact the appellant's work and failed to provide evidence to prove that the alleged infringing product was designed by him. Therefore, this Court believes that the defendant's production and sale of the allegedly infringing product infringed the appellant's copyright and should bear civil liability for stopping the infringement and compensating for losses according to law.

    The court of second instance judged the defendant to compensate the plaintiff for economic losses (including reasonable expenses) of RMB 300,000.

    According to local practice, for cases of copyright infringement, the judge will generally divide the case into two parts for trial. First, the judge examines whether the artwork that the right holder claims copyright is creative and unique. If yes, the judge will continue to hear whether the targets activities have constituted copyright infringement and how to determine and compensate etc. In other words, according to the provisions of the Chinese Copyright Law, the creativity and uniqueness of a work is a prerequisite for the protection of Chinese law.