[Guest Post] Warming Up: The Legality Issue of Fan Fiction Is Back on Appeal in Mainland China

The IPKat is delighted to receive a guest post by Xi Lin (PhD candidate in IP law at Maastricht University) commenting on Jin Yong v Jiang Nan. It was the first fan fiction case in China, in which the legal status of unlicensed fan work was tested in court.

Here’s what Xi writes: 

Unconstraint state of mind (?) 💡

The legality of unlicensed fan fiction is quietly returning to judicial attention in Mainland China. In August 2018, the trial judgment of the first case concerning fan fiction was rendered in Cha v Yang et al. – more commonly referred to as Jin Yong v Jiang Nan, the pseudonyms of the complainant and the primary defendant [case reference: Tianhe District People’s Court of Guangzhou City, Guangdong Province (2016) Guangdong 0106 Minchuzi No. 12068 (in Chinese)]. See the full text of the ruling here. The trial was live-streamed and can be watched here].

The trial court held that making fan fiction using characters from another author’s works did not infringe copyright, but the exploitation of said fan fiction amounted to unfair competition. The decision was appealed, but the complainant passed away shortly after the trial judgment was rendered. The litigation was therefore suspended for succession, so that it could be determined who should take the author’s place as appellee. Nearly two years have passed, and now the preparation for the appeal is once again underway. Thus, it is high time to take another look at the copyright rules relevant to fan fiction in Mainland China.

Background

There is a restrained tension between copyright and fan fiction. Typically, fan fiction is created spontaneously by a fan who, having consumed the original work (the ‘canon’), adapts selected elements from it to new contexts. Fan fiction commonly builds around the characters in canon because of their referential value: canon characterisation provides a generally accepted framework of reference regarding the personality of individual characters and the relationships between them. Moreover, using these characters’ names in fan fiction efficiently guides the reader to the content in canon. This reference mechanism saves effort for both creators and readers of fan fiction – creators only need to specify what the canon does not cover. Because of the general ease of internet access, works of fan fiction are often posted online and attract like-minded readers who can tell what is borrowed and what is new. Such fan fiction may infringe copyright due to it being an unauthorised adaptation and/or due to subsequent actions, such as the writer making it available online. However, because fan fiction is created and consumed within a group of like-minded people, the influence of such potential infringement is largely self-contained. This phenomenon is thus left in a copyright penumbra – with much depending on the individual rightholder’s own tolerance.

Legal Framework

To establish that a character-based piece of fan fiction has infringed the adaptation rights of a canon work in written form, one should prove that:

(1) the character design in canon literature is protected, and

(2) the use of the character design amounts to an unauthorised adaptation.

Regarding the first point: character designs from written works are protectable as original expression. ‘Character designs’ here refers collectively to the personality of individual characters and the relationships between them. Like all elements from written works, character designs cannot be protected as independent works, because one written work derives only one copyright title [Chao v Qujing Cigarette Factory, case reference: High People’s Court of Yunnan Province (2003) Yunnan High Minsanzhongzi No. 16 (in Chinese). See the summary and commentary of the ruling here].

Character design is protected as original expression to the extent of being delineated by plot design. ‘Plot design’ here refers to individual scenes in a plot and a sequence of scenes. The borderline between idea and expression is delicate in written works, because language is a natural instrument for the expression of ideas: if the protection of written works were confined to identical or near-identical copying, the exclusivity of copyright would not even extend to paraphrase, let alone adaptation! Therefore, Chinese courts determine the scope of original expression in a written work through a continuous process of abstraction and filtration. In story-telling works, abstraction ends where character design and plot design mutually confirm each other [Li v Shi, and Writers Publishing House, case reference: Beijing No. 2 Intermediary People’s Court (2008) Erminzhongzi No. 02232 (in Chinese). See the summary of the ruling here].

The name of a character falls outside the scope of character design due to its general lack of originality and the impossibility to consider it a 'work'. According to the definition of character design, characters are essentially protected as their characterisation, whereas a name is a sign that can identify that characterisation. On its own, a name is too short to reflect originality: true originality arises from cumulative expression, as is reflected by the content filtered out in the process of identifying original expression in character design. Isolated personality traits such as being resourceful or loyal, or having a birthmark, are not original; nor are simple relationships like those between family, lovers, a master and disciple, or colleagues, if they are not delineated in more specific detail by the plot. While a character design counts as original expression, a name is but an ontological reference to it. A character with a name but no characterisation is not protectable – for example, Godot from Samuel Beckett’s play Waiting for Godot.

Regarding the second issue: using a character design from a written work does not automatically amount to unauthorised adaptation. Infringement of adaptation rights is determined by seeing whether there is a relationship of source and re-creation between the complaining and defending works [Yu et al. v Chen, case reference: Beijing High People’s Court (2015) Gaomin(zhi)zhongzi No. 1039 (in Chinese). See the commentary of the ruling here]. Such a relationship is established if the creator of the allegedly infringing work is likely to have accessed the claiming work and if the two works are substantially similar to suffice incremental creation. With fan fiction, access is rarely disputed, as fans are highly likely to have accessed the canon; thus, the debate mainly concentrates on substantial similarity.

For story-telling works, substantial similarity requires at least both character design and plot design to support that the similarities between two works are both qualitatively and quantitatively substantial. The defending work is abstracted into character design and plot design, which are paired and compared with those of the claimant's work. The question of adaptation rights infringement also considers background setting: on the one hand, a consistent background setting between two works (e.g. one being a sequel or prequel to the other) indicates incremental creation; but, on the other hand, any similarities arising from historical background should be dismissed, because such similarities must be attributed to history instead of any author’s original expression [Zhang v Lei et al., case reference: Supreme People’s Court (2013) Minshenzi No. 1049 (in Chinese). See the full text of the ruling here]. What separates fan fiction from conventional infringement of adaptation rights, such as plagiarism, is that fan fiction breaks the mutual confirmation of plot design and character design. Fan fiction creators use canon content primarily as reference, because they and their readers have little interest in repetition. In adapting character design to a new context, the character design is not necessarily used as expression. Therefore, fan fiction referring to canon through characters alone is not enough to constitute the substantial similarity required to establish the infringement of adaptation right.

Trial Judgment

The trial judgement of Cha v Yang et al. brought these rules to public attention due to the reputation of both the canon author and the fan fiction creator. The author – Louis Cha or Cha Leung-yung, better known by his pseudonym, Jin Yong – was an iconic novelist in Chinese literature, celebrated for his wuxia franchise of martial arts heroes in ancient China. Each novel tells an independent story featuring a separate group of characters. There is some interaction between the various works in the franchise, in that characters are sometimes put into family or master-disciple lineages that bridge multiple novels. Through wide circulation and extensive adaptation, characters from Cha’s wuxia franchise are well known to the Chinese public.

The primary defendant and fan fiction creator Yang Zhi, better known by his pseudonym Jiang Nan, started writing fan fiction based on Cha’s franchise and posting it online for fun in 2000. The popularity of his posts emboldened him to publish his fan fiction in hard copy. The book was initially marketed as fan fiction of Cha’s works; that market strategy was later dropped and Yang’s work remarked as an independent creation, though readers would still have understood it to refer to Cha’s works. Five editions had been published by the time Cha sued. Yang had used the names of 65 characters from several of Cha’s works to play out a plot concerning campus life, against a background irrelevant to martial arts. The substantiality of use varied from character to character: the personalities of and relationships between primary characters in Yang’s work are largely consistent with Cha’s, but some secondary characters are modified to a larger degree. The trial court held that the similarity was limited to isolated personality traits and simple relationships, because the new plot and background installed different characterisation under the same names. Consequently, the similarities could not support Cha’s claim of copyright infringement.

Although copyright law might have provisionally given fan fiction the green light, the exploitation of fan fiction is a matter of unfair competition. Copyright is an exclusive right. It does not entitle a rightholder to exploit; rather, it vests in the rightholder the power to exclude others from exploitation. Therefore, concerns about unfair competition could bar Yang from publishing his work in hard copy. The dismissal of the copyright infringement claim left Yang still at large as a free rider of Cha’s work, so the trial court then proceeded to examine Yang’s exploitation under the Law Against Unfair Competition. Interestingly, the court held that it was permissible to create and post fan fiction online for fun, but taking advantage of its ensuing success exceeded Yang’s initial objective. Using characters’ names as references to Cha’s works appealed to the vast audience base Cha had built over several novels. On grounds of good faith, the trial court concluded that Yang’s exploitation amounted to unfair competition.

To Be Continued

The attempt of the trial court to condemn free riding overstretched the Law Against Unfair Competition. Article 5 of the Law of 1993 (Article 6 under the Law of 2019) enumerates three types of unfair conduct, with a bottom clause prohibiting market behaviours that induce misconceptions about the source of a product or the relationship between products. Simply deviating from good faith is not enough to establish unfair competition according to the bottom clause: the market behaviour needs to cause misconceptions. In Cha v Yang et al., it was apparent that Yang’s exploitation of his work of fan fiction was irrelevant to the three types of behaviours enumerated; the issue therefore concentrated on whether his exploitation was misleading. Yang’s work was exploited, first, as fan fiction of Cha’s work and, then, as a work of independent creation. Neither presentation was likely to have misled consumers as to the origin of Yang’s work and its relationship with Cha’s works. Marketing it as fan fiction was honest with regard to its origin and its relationship with Cha’s works – by definition, fan fiction does not originate from the canon author. Nor was it likely that marketing it as a work of independent creation was misleading. That the two works are not substantially similar within the meaning of copyright is sufficient that Yang’s work would not confuse consumers, especially considering that campus literature and wuxia literature target different readers and they are sold in different sections in real and online bookshops. If consumers were under no misconception, Article 5 should not apply.

The over-stretching of the Law Against Unfair Competition exposes a lacuna in Copyright Law: what is the threshold of originality for a borrowing work to declare independence from the work borrowed? The trial judgment had an ulterior motive when it condemned benefiting from free riding (even at the cost of misusing the bottom clause of Article 5 of the Law Against Unfair Competition). Harnessing the influence of earlier works may well be a natural course of creation, which copyright should acknowledge. It is not uncommon for later works to come under the influence of pre-existing works, and there is a point at which they transcend earlier influences to become independent and original. To establish independence from an earlier work, a later work should demonstrate that its own originality far exceeds that which was borrowed, rather than merely meeting the minimal level for copyright protection. In Cha v Yang et al., the crux of the matter is whether Yang’s originality transcended Cha’s originality borrowed into Yang’s material; specifically, whether Yang’s originality in the background, plot design and character design transcended Cha’s originality in those aspects, to the extent the names of the characters refer readers to Cha’s canon. It is possible for a name to be tied to a specific set of characterisations under certain circumstances. Taking ‘rose’ as an example, ‘a rose by any other name would smell as sweet’ for Romeo of Montague, but it is a term the Little Prince reserved for his one and only on asteroid B612. 

Hopefully, this lacuna will be filled out by the appeal judgement.

Image information: 

The left half of the inserted image is courtesy of Lin Xi; 

The right half of the inserted image is Shelley (Tian's kitten).