trial name: plaintiff Guangzhou New Times Audio & Video Company v. defendant Wuhan Tianyu Entertainment Co., Ltd. Case of copyright infringement dispute of MTV works

trial procedure: first instance

case classification: intellectual property

public notice number:

judgment document number: (2114) Wu zhi Chu zi No.215

judgment document type: civil judgment

judgment time: March 21, 2115

Court of acceptance: Wuhan Intermediate People's Court

Full text of the case:

Plaintiff Guangzhou New Times Audio & Video Company v. Defendant Wuhan Tianyu Entertainment Co., Ltd.

Wuhan Intermediate People's Court

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legal representative Li Qiang, general manager.

entrusted agent: Qiu Qixiong, lawyer of Hubei Chufeng Dehao Law Firm.

entrusted agent: Lu Jing, lawyer of Hubei Chufeng Dehao Law Firm.

Defendant Wuhan Tianyu Entertainment Co., Ltd., whose domicile is No.224 Wuluo Road, Wuchang District, Wuhan City, Hubei Province.

legal representative LV qihong, chairman of the board.

entrusted agent: Tang hongqing, lawyer of Hubei Tianyuan brothers law firm.

Our court accepted the case of the plaintiff Guangzhou New Times Audio & Video Company (hereinafter referred to as New Times Company) v. Wuhan Tiandi Entertainment Co., Ltd. (hereinafter referred to as Tiandi Company) about the copyright infringement dispute of MTV works. According to the law, Judge Yin Wei served as the presiding judge, and formed a collegial panel with Judge Xu Jixue and Acting Judge Fu Jianqing. The trial was held in public on October 24, 2115. Qiu Qixiong and Lu Jing, the entrusted agents of the plaintiff New Times Company, and Tang Hongqing, the entrusted agent of the defendant Tiandi Company, attended the proceedings in court. The case has now been closed.

The plaintiff New Times Company claims that on July 7th, 2114, in Room 3126 of Tiandi Entertainment City operated by the defendant (located on the 3rd floor of Xindadi Hotel, Wuluo Road, Wuchang District, Wuhan), the plaintiff discovered that the defendant had shown the MTV music works of which the plaintiff enjoyed copyright to the public by karaoke. These MTV works are: 1. Late Autumn by Mao Ning; 2, "Heart Rain". As the obligee of the above works, the plaintiff has never allowed the defendant to use his works in the above way. The defendant showed the plaintiff's works without permission, which seriously violated the plaintiff's rights and interests and caused great economic losses to the plaintiff. Therefore, the plaintiff New Times Company requested: 1. The defendant immediately stopped the infringement of the right to show the MTV music works involved in which the plaintiff had copyright, and no longer publicly showed the above-mentioned works for which the plaintiff had copyright; 2. The defendant issued a statement in a national newspaper to publicly apologize to the plaintiff to eliminate the influence; 3. The defendant compensated the plaintiff for economic losses of RMB 111,111; 4. The defendant shall bear all the litigation costs in this case.

The plaintiff, New Times Company, submitted four pieces of evidence to our court to prove its claim.

Evidence 1, MTV- VCD boxed CD of Late Autumn Mao Ning, and a copy of the package cover of the CD, which prove that the plaintiff is the copyright owner of the MTV tracks contained in the CD; Evidence 2, a certificate from China Audiovisual Association, which proves that the plaintiff enjoys the copyright of the music works involved; Evidence 3: Notary Certificate (2114) Wuqing Zhengzi No.3175 of Qingshan District Notary Office in Wuhan City, Hubei Province and the CD-ROM burned by the plaintiff for obtaining evidence prove that the defendant committed the infringement of the plaintiff's copyright; Evidence 4. The business license of the plaintiff's enterprise as a legal person, which proves the plaintiff's qualification as a litigation subject.

The defendant Tian Di Company's oral defense in the trial held that, firstly, from the evidence submitted by the plaintiff, the plaintiff was only the producer of the VCD music CD, not the copyright owner of the MTV music TV album involved in the case, and the plaintiff's right to accuse the defendant of infringing its screening right was insufficient; Second, in the course of business, the defendant only played the above-mentioned music and TV tracks at the request of the guests, and did not take music as the business object. Therefore, the defendant's above-mentioned behavior is not profitable, and the plaintiff believes that the defendant infringed the copyright of his MTV music works and caused its economic losses, which is inconsistent with the facts; Third, the defendant legally purchased the MTV- Late Autumn Mao Ning album on October 3, 2114, and it was not used for a long time, and the company's business scale was not large, so there was no legal basis for the plaintiff to demand the defendant to compensate for the economic loss of RMB 111,111. Therefore, the defendant Tiandi Company requested that the plaintiff's claim be rejected.

The defendant Tiandi Company submitted three pieces of evidence to our court to support its defense claim.

Evidence 1, the commercial retail invoice of Hubei Province, proves that the defendant purchased MTV- Late Autumn Mao Ning music and television album on October 3, 2114; Evidence 2: Pay the bill, which proves that the plaintiff's representative spent the amount and content at the defendant's place, and the defendant did not charge the plaintiff's agent for the related songs and tracks requested during the consumption; Evidence 3, a copy of Beijing Evening News, proves that the defendant's compensation amount is too high.

on October 11, 2114, our college organized evidence exchange and cross-examination.

(1) The plaintiff, New Times Company, has no objection to the authenticity of the three pieces of evidence submitted by the defendant, but thinks that Evidence 1 and Evidence 2 submitted by the defendant are not directly related to this case.

(2) The defendant Tiandi Company has no objection to the authenticity of Evidence 1, Evidence 2 and Evidence 4 submitted by the plaintiff; Objection to evidence 3. Evidence 3 submitted by the plaintiff, i.e. Notary Certificate (2114) Wuqing Zhengzi No.3175 of Qingshan District Notary Office, Wuhan City, Hubei Province, was deemed by the defendant to be notarized without the presence of the defendant's staff, so its authenticity was not recognized.

the above evidence, which has been cross-examined by both parties and the authenticity of the evidence is recognized by both parties, is confirmed by our court. The evidence that disagrees with the parties involved is as follows:

(1) Evidence 3 submitted by the plaintiff, that is, the notarial certificate submitted by the plaintiff. Upon examination, our hospital holds that the Notary Certificate (2114) Wuqing Zhengzi No.3175 issued by the Notary Office of Qingshan District, Wuhan, Hubei Province is attached with the notarial record of the notary office and four copies of the Uniform Invoice of Wuhan Catering and Entertainment Industry Quota stamped with the defendant's official seal. The defendant does not deny the notarized transcripts and invoices, so the evidence can prove the authenticity of the notarization behavior of the notary office. According to the second paragraph of Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes and the provisions of Article 65 (3) and Article 68 of Several Provisions on Evidence in Civil Litigation, our court recognizes the probative force of Evidence 3 submitted by the plaintiff.

(2) As for the evidence 1 submitted by the defendant, that is, the purchase invoice and evidence 2, that is, the consumption receipt, the defendant submitted this evidence for the purpose of proving the circumstances of infringement and the amount of compensation. This evidence is a refutation of the plaintiff's litigation reasons and claims, so it is relevant to this case. This evidence is recognized by our court.

it was found through trial that the plaintiff, New Times Company, created and completed MTV- Mao Ning in Late Autumn in 1996, and made it into a VCD and DVD music album with the same name. The boxed VCD and DVD of MTV- Late Autumn Mao Ning contains 25 MTV songs sung by Mao Ning, including two MTV tracks, Late Autumn and Heart Rain. The VCD and DVD of MTV- "Late Autumn Mao Ning" are sealed with the plaintiff's new era logo, which is signed and published by Guangzhou New Era Audio & Video Company, and the publication number is isrccn-f21-96-335-11-v.j6.

on July 5, 2114, the plaintiff entrusted agents Huang Bingxiong and Liao Zhixiong to apply for evidence preservation to the Notary Office of Qingshan District, Wuhan City, Hubei Province, after discovering that the defendant had played two songs "Late Autumn" and "Heart Rain" by Mao Ning to the public without permission in the private room of KTV. On July 7th of the same year, Huang Bingxiong and Liao Zhixiong, under the supervision of Yang Hanying, notary of Qingshan District Notary Office in Wuhan City, Hubei Province, and Wang Chunxiang, a staff member, went to Room KTV-3126, Heaven and Earth, located on the 3rd floor of Xindadi Hotel, No.334 Wuluo Road, Wuchang District, Wuhan City, Hubei Province. As ordinary consumers, Huang Bingxiong and Liao Zhixiong requested 18 songs, including Late Autumn and Heart Rain, and obtained 4 consumer invoices stamped with the defendant's invoice special seal, and recorded the process of requesting and playing the songs. Afterwards, the notary office made a notarial record and a notarial certificate (2114) Wu Qing Zheng Zi No.3175, and compiled the video materials into a CD.

on September 9, 2114, China Audio-Visual Association issued a written certificate to Beijing Yingke Law Firm, the agent entrusted by the plaintiff New Times Company. This certificate states: MTV- Late Autumn Mao Ning published by Guangzhou New Era Audio & Video Company has 25 works, publication number: ISRC CN-F21-96-335-11-V.J6, and all the music videos and videos contained in it are produced by Guangzhou New Era Audio & Video Company, and all the related copyrights are enjoyed by Guangzhou New Era Audio & Video Company.

on August 21, 1998, the defendant Tiandi Company was approved and registered by Wuhan Administration for Industry and Commerce, and obtained the license of enterprise legal person. Its business scope is sauna and singing and dancing. On October 3, 2114, the defendant purchased the MTV- Late Autumn Mao Ning album boxed CD.

We also found out that the VCD disc of MTV- "Late Autumn Mao Ning" involved in the case showed the plaintiff's signature "Guangzhou New Age Audio & Video Company" on the screen before the official program was broadcast; During the broadcast of official programs, the dynamic "new era" patterns and signs will be displayed on the screen every once in a while.

During the trial of this case in our court, the plaintiff New Times Company provided relevant effective civil judgments. According to the judgment, on October 4, 2113, international federation of the phonographic industry (Hong Kong Club) Co., Ltd. issued the following certificate: when the member companies of the Association provide commercial limited use of the MTV tracks of Hong Kong pop stars created by them in entertainment places such as karaoke bars in Hong Kong, the usual way is a one-time license, the use period ranges from 1 to 3 months, and the charge for each MTV track also ranges from HK$ 51,111 to HK$ 111,111. Thereafter, members' MTV tracks can only be used in places that have been authorized by members to be made public.

In our hospital's view, MTV is music TV, which takes certain vocal music and instrumental music works as the theme images, carries out visual creative design according to the different characteristics of music genres and poetic images, establishes the form, type characteristics and situational atmosphere of the spatial images of the works, and integrates the pictures and music in time and space movement to form a distinct and harmonious audio-visual structure. This TV art genre of sound and picture makes full use of various modeling factors such as light, color, composition and movement, and uses electronic editing, three-dimensional animation and digital editing and editing system as production means to construct a theme picture with multi-dimensional space-time form. The music picture, creative conception, creative design and creative method of MTV are the reproduction and reproduction of music works and their combinations by the creators. The creative process of MTV music TV and the expression form of music theme condense the wisdom and labor of the creators, which is a breakthrough creative activity. Therefore, MTV is artistic, perceptive and creative, and has the legal characteristics of "works" stipulated in the Copyright Law of the People's Republic of China, so it should be recognized as works.

MTV music and TV works, which can be used for karaoke and KTV, are different from audio and video products. Article 5 (2) and (3) of the Regulations for the Implementation of the Copyright Law of the People's Republic of China stipulates that a sound recording refers to any sound recording of a performance or other sounds; Video products refer to the recordings of any continuous related images and images with or without sound other than film works and works created by methods similar to filming, and are characterized in that: audio and video products are the faithful recording of the filmed object by audio-visual producers through certain equipment, that is, the simple reproduction and reproduction of the filmed object and its creative design and main idea, and their creative process does not break through the original creativity of the filmed object, but the original reproduction of the filmed object is not original. Item (11) of Article 4 of the Regulations for the Implementation of the Copyright Law of the People's Republic of China stipulates that cinematographic works and works created by similar cinematographic methods refer to works that are shot on a certain medium and consist of a series of pictures with or without sound, and are projected by means of appropriate devices or disseminated by other means. The main features of a work created by a method similar to filming are: it not only copies and reproduces the object to be filmed, but also reflects the processing, arrangement, design and innovation of the object to be filmed by the creator, and adds the creative intention and conceptual design of the creator. Compared with audio-visual products, MTV music TV is a new breakthrough in audio-visual products and a re-creation process. Therefore, MTV works belong to a new genre of music. Another MTV

involved in the case-Late Autumn Mao Ning music TV album, judging from the picture content, the picture of MTV- Late Autumn Mao Ning is composed of dynamic and static scenes such as song singing, character performance, background picture, lyrics subtitles and music accompaniment, which highlights the theme of related music; Judging from the production method, the creativity and design of its dynamic and static scenes are based on certain vocal music and instrumental music works, and visual innovation is carried out based on different music genres and artistic conception of lyrics, so as to establish the spatial form, type characteristics and background atmosphere of the works and integrate the pictures with music; Judging from the production process, the audio-visual structure of MTV- Late Autumn Mao Ning, such as composition design and situational creativity, includes technical creative activities such as directing, filming, performing, editing, clothing, lighting, acting, design and synthesis. Judging from the communication method, MTV- Late Autumn Mao Ning reproduces the artistic conception of the work and the producer's creative intention with the help of appropriate projection equipment and installation system with corresponding functions. Therefore, judging from the method of creation, the MTV- Late Autumn Mao Ning involved should be regarded as a work created in a way similar to film production, rather than a simple audio and video product.

MTV- The signature and logo of the boxed CD cover of Late Autumn Mao Ning are plaintiff New Times Company; The signer and logo displayed in the process of playing the contents of the CD-ROM screen are only plaintiff New Times Company; China Audio-Visual Association issued a certificate stating that the MTV- "Late Autumn Mao Ning" music and television works involved were created by the plaintiff New Times Company; And the defendant Tiandi Company did not provide evidence to the contrary to prove that the work was not created by the plaintiff.

Based on the above factors, according to Article 15 of the Copyright Law of the People's Republic of China, it can be concluded that the plaintiff, New Age Company, is the producer of MTV- Late Autumn Mao Ning, and enjoys the copyright of this work according to law.

according to the business scope approved by the administrative department for industry and commerce for the business license of the defendant Tiandi Company as an enterprise legal person, the defendant is qualified to operate KTV projects. The notarial certificate made by the Notary Office of Qingshan District, Wuhan City, Hubei Province according to the plaintiff's application for evidence preservation and the CD-ROM evidence of the plaintiff's evidence collection process show that the defendant has shown MTV music TV.