Some Thoughts on the Necessity of Respecting IP Rights in Original Works Based on the Six Major Schools Precedent
Part I: Prudence is Required When Adapting Literary Works into Game Works
By: Peili Ye
Abstract: Elements of a literary work such as names of characters and their relationships, which might seem not to be protected by the Copyright Law, should be given appropriate attention. If these elements are sufficiently specific and intertwined with the relevant storylines of a literary work, these seemingly independent elements will be protected under the Copyright Law.
Jin Yong is known as the “Shakespeare of Chinese martial arts and chivalry novels”. He has written a number of bestseller, including the Legend of the Condor Heroes, The Return of the Condor Heroes, The Heavenly Sword and the Dragon Saber and Smiling and Proud Wanderer (hereinafter collectively referred to as the "Four Works").
In April 2013, Jin Yong granted the exclusive right to adapt the Four Works to a well-known domestic game company (hereinafter referred to as "Company A") for use in game programs delivered to mobile devices in mainland China.
In May 2014, Company A discovered that another domestic company in the industry (hereinafter referred to as "Company B") had developed a game for mobile devices entitled Six Major Schools using many of the elements of the Four Works including character names and relationships, the names of martial arts, martial arts books and storylines in a manner that apparently infringed Company A’s exclusive rights to adapt the Four Works. Company A immediately sent a “cease and desist” letter to Company B demanding that it cease infringement. After receiving the letter, however, Company B persisted with its infringement, and in August 2014 began offering download and game services to Android users on its official website and other online game platforms, shortly after insignificantly modified the names of the game characters.
Consequently, Company A filed a copyright infringement lawsuit against Company B.
This case concerns the adaptation of a literary work into a game work. The two types of works are different in many aspects such as form of expression and distinctive features. Given the characteristics of games -- dynamic images, swift scene changes and sparse textual descriptions -- elements such as character names and relationships, names of martial arts and books of martial arts secrets are most commonly seen in martial arts-themed games, with plot elements intervening and appearing intermittently throughout the progress of the game.
Consequently, a key precondition to determining whether or not the Six Major Schools case involves copyright infringement is to determine whether or not the elements involved in the Four Works, including names of the characters and their relationships, martial arts names and books and plots, are protected under the Copyright Law.
In our opinion a novel consists of three elements -- characters, story and setting -- which form a complete integrated structure. Further, differences in the three elements of various novels contribute to the unique characteristics of each novel. Accordingly, character names and relationships martial arts names, books and plots of the Four Works qualify for protection under the Copyright Law. Company B used substantial unique forms of expression employed by the relevant copyrighted works without permission in its game Six Major Schools. It thereby committed copyright infringement, mainly because the right of adaptation constitutes the right to create an original work by means of adapting an existing work. In this case, the key to determining whether or not the Six Major Schools, as a work created by computer software, is an adaptation of the relevant works is to determine whether or not character names and relationships and plots contained in the game are substantially similar to their literary counterparts.
Firstly, Six Major Schools materially used the characters of Jin Yong’s works. For example, in terms of character names such as Yue Buqun and Ling Huchong, the game employed a lot of names of major and minor characters of various martial art schools that appear in Jin Yong’s works. In terms of the relationships between characters of different schools, the master-apprentice relationship between Destroy Master Mistress, Ji Xiaofu and Ding Minjun and the tension between Destroy Master Mistress and Yang Xiao are identical to the corresponding relationships presented in the relevant copyrighted works. In terms of characters, the personalities of Ling Huchong, Tian Boguang and Ding Minjun, among others, are exactly the same as the characters described in Jin Yong’s works.
Secondly, Six Major Schools employed the original forms of expression in storytelling that were unique to the copyright works. The main storyline of the game Six Major Schools completely copied the essential content of Jin Yong’s works, complemented by numerous elements of the copyrighted works such as the characters’ names, relationships, personalities and schools of martial arts. For example, episodes such as The Haisha Clique Seizes Hai Dongqing’s Dragon Sabre, Ling Huchong Fights with Tian Boguang in the Huiyan Tower, and The Head Escort of the Fortune Prestige Escort House Massacred for the Evil-Resistant Sword Art”, are identical to the plots of Jin Yong’s works and are essential to the connections between the stories.
Thirdly, Six Major Schools also used other original forms of expression of the relevant copyright works. Martial arts and the relevant books that appeared in Six Major Schools included the Solitary Sword, the Zixia Stunt, the Utmost Deadly Claws and the books Utmost Deadly Scripture and Evil-Resistant Sword Art, are all copies of elements appearing in Jin Yong’s works. Furthermore, the characters that are related to these elements are also identical to the corresponding characters in the Four Works.
Lastly, the expressive techniques applied to Six Major Schools reinforced its similarity to the relevant copyrighted works. To be specific, some of the scripts and voice-overs in the game such as “The Heavenly Sword has no rivals” and “The dwarf Yu and the hunchback Mu both want the Lin family’s “Evil-Resistant Sword Art”, are all excerpts from Jin Yong’s books.
Considering the foregoing circumstances, the court eventually ruled that Six Major Schools infringed the copyrights in Jin Yong’s works, and that Company B’s unauthorized adaptation of the works into a game violated Company A’s exclusive rights of adaptation and its rights and interests in the operation of the adapted games.
Certain elements in literary works such as character names and relationships that might seem unprotected under the Copyright Law, deserve attention because they will be protected by the Copyright Law as long as they are set sufficiently specific and intertwined with relevant plots, even if they initially appear to be independent. Businesses operating in the game industry need to respect copyrights and to act with discretion when they adapt a literary work into a game.
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