Recently, the news that the producer of the film Hi, Mom registered all kinds of related trademarks in Li Huanying before the film was released attracted a heated discussion. This layout strategy of "the market has not moved, the trademark comes first" also reflects the increasing awareness of intellectual property protection in the current film industry.

With the rapid development of China's film industry, the commercial value of intellectual property, the core resource of films, is constantly sought after by the market. Under the profit-oriented, intellectual property disputes in the film industry emerge one after another, and news of script plagiarism, poster plagiarism and piracy is common. How to defend the position of intellectual property rights has become a compulsory course that filmmakers have to study seriously.

Commercial use should be legal.

As a comprehensive art of vision and hearing, film can accommodate a variety of art forms, including drama, photography, painting, music, dance, writing, sculpture and so on. In the process of film creation, in order to achieve the purpose of contrast, it is inevitable to involve the use of other people's works. Hi, Mom's tender feelings can resonate with people. Apart from the delicate and touching plot, the true reproduction of factory life in the 1970s and 1980s also evokes many people's memories of the times. This kind of reappearance is inseparable from the important support of music, architecture, props and clothing.

The use of other people's works in movies conforms to the law of film creation. However, this kind of use behavior, depending on the specific situation, has different legal nature in law. Therefore, the relevant subjects in the film industry should clarify their legal attributes and ensure their legitimacy when using other people's works for business.

In general, as works of art, music and dance that can exist independently from film works, there is no inclusive relationship between their copyrights and film works. The copyright owner of a film work needs the consent of the copyright owner to use the above-mentioned work. The film "Nine-story Demon Tower" was once found to be infringing because it used calligraphy fonts created by others in newspaper props and music created by others as an episode without authorization.

Under special circumstances, the use of other people's works in film works may constitute fair use in the sense of copyright law, and the copyright owner may not be allowed to pay remuneration, but the name of the author and the name of the work shall be indicated. In the case of the alleged infringement of the use of "The North Wind Blows" and "Hong Hushui, Waves Beat Waves" in the TV series "Years of Passion Burning", the court found that the TV series only used a few bars or a few lyrics of the work, and the whole lyric or music score was not used properly. From the aspects of small proportion of use, incomplete expression of the work, limited form and content of use, and no substantial damage to the interests of the copyright owner, it was finally found to constitute fair use.

The distribution of rights must go ahead.

According to the information published by the Trademark Office, Beijing Jingxi Cultural Tourism Co., Ltd., the producer of the film Hi, Mom, had submitted several trademark registration applications for "Hello, Li Huanying" in the category of film and television derivative goods or services, including movies, clothes and toys, before the film was released on December 8, 2020. This trademark application behavior accurately grasps the key conditions of "foresight" and "defense" of trademark layout, and is dubbed as a trademark demonstration class in the film industry.

However, the distribution of intellectual property rights in the film industry is far more than trademark registration. The life cycle of a film will generally go through script creation, film shooting, post-production, publicity and distribution, and peripheral derivatives promotion, during which various potential intellectual property legal risks will be involved. Combined with practical experience, the film and television elements that easily lead to intellectual property legal disputes include scripts, film and television drama names, role names, role images (virtual animated images and real-life modeling images), costumes, props, accessories, stills and posters. The types of intellectual property rights involved in the relevant legal elements are different, and the obligee should fully consider the differences in the legal attributes of the relevant film and television elements and choose the appropriate types of rights for the right layout.

Taking the name of a film and television drama as an example, in view of its own meaning expression, it is a highly concise content of the work, and some rights holders think that the rights should be laid out from the perspective of written works. However, from the judicial practice, due to the small number of words, it is generally difficult to be recognized as a creative height with original expression, a work in the sense of copyright law, and it is difficult to achieve the expected effect of safeguarding rights. Hi, Mom producers' right layout for the choice of movie names from the perspective of trademarks is a more appropriate understanding and judgment of the legal attributes of movie names. In addition, it should be noted that some film and television elements may involve multiple intellectual property rights at the same time. For example, animated images may not only constitute art works, but also constitute trademarks. Rights holders should combine the characteristics of film and television elements, carry out typological intellectual property layout, and timely carry out rights fixation measures such as ownership evidence retention, copyright registration and trademark registration.

 Be cautious in contract review

In the process of film industry creation and circulation, whether it is IP acquisition and joint investment in the early stage, script creation, film shooting and post-production in the project implementation, or publicity and distribution after the creation, a large number of intellectual property contract relationships are involved.

From the perspective of judicial practice, contract disputes are the most important intellectual property litigation disputes in the film industry. The causes of disputes mainly include: first, disputes caused by multiple licenses. For example, the right holders of novels and scripts authorize their works to different producers for developing film projects, and the producers authorize the exclusive information network communication rights of film works to different video playback platforms at the same time. Second, the disputes caused by the violation of the scope of authorization. In the development of film and television derivatives, when the film party signs an authorization contract, it usually stipulates the authorized geographical scope, authorization type and other contents, and it is easy to cause disputes if the licensee uses the work beyond the authorized scope. For example, the licensee only obtains the right to develop stationery by using cartoon characters in movies, but develops toys and clothes without authorization beyond the scope of authorization. Third, disputes caused by the expiration of the authorization period and the unfinished performance of obligations. It is a complex project to develop novels, comics and other IP into film works, which needs to go through many cycles, such as preparation, production, submission and publication. Due to the influence of many factors such as script quality, shooting cycle and project funds, various stages of contract performance may exceed the expected judgment of the parties, resulting in the expiration of the authorization period and the unfinished film project. Fourth, the agreement on key terms in the contract is unclear. Include that subjective words such as "artistic appeal" are taken as the script creation standard in the entrustment contract, and the non-legal terms such as "original clothes, accessories and props for film and television dramas" are directly used as the authorized objects instead of legal concepts in the film and television derivative development contract. This vague agreement has the risk of arbitrary interpretation, which leads to different contract interpretations of whether the script meets the requirements and whether the actual use behavior falls within the scope of authorization for the sake of their own interests in the later contract performance, which is likely to lead to disputes and legal risks.

Therefore, the relevant subjects in the film industry should fully realize the importance of intellectual property contracts, and establish an element-type review mode at the beginning of the contract to conduct special investigations on contract risk points that are prone to frequent disputes, so as to avoid potential transaction risks. It is suggested that the relevant subjects should improve the operability of the rights guarantee clause, and start from various angles such as requiring proof of ownership and strengthening the liability for breach of contract for rights defects, so as to confirm that there is no defect in the source of their rights, and avoid the passive situation that the licensee has invested in film development and operation, but the real obligee claims infringement. At the same time, the key terms such as contract performance period, work acceptance standard, authorization content and liability for breach of contract are stipulated in more detail and clearly. When the performance deviates from the contract, a change agreement shall be signed in writing in time to prevent the risk of breach of contract.

(Source: China Intellectual Property News/China Intellectual Property Information Network)