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Chinese Court First Finds Fanfiction to Infringe Copyright

Wed, 05 Jul 2023
Categories: China Legal Trends

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The case involves four works by Jin Yong, China’s most well-known wuxia writer.

Jin Yong’s wuxia novels have a widespread following in Chinese communities worldwide. His 15 works written between 1955 and 1972 earned him a reputation as one of the greatest and most popular wuxia writers ever. By the time of his death, he was the best-selling Chinese author, and over 100 million copies of his works have been sold worldwide (not including an unknown number of pirated copies). According to The Oxford Guide to Contemporary World Literature, his novels are considered to be of very high quality and are able to appeal to both highbrow and lowbrow tastes.

On 23 Apr. 2023, the Guangzhou Intermediate People’s Court, located in southern China, made a second and final judgment ([2018] Yue 73 Minzhong No. 3169, [2018]粤73民终3169号) holding that the “There They Were” (此间的少年, hereinafter the “Fanfiction”), which was created by a fan based on Jin Yong’s works, infringed original author’s copyright.

According to the plaintiff, the Fanfiction infringes the copyright of several elements of four of Jin Yong’s most well-known works, The Legend of the Condor Heroes (射雕英雄传), The Demi-Gods and Semi-Devils (天龙八部), The Smiling, Proud Wanderer (笑傲江湖), and The Return of Condor Heroes (神雕侠侣), which relate to the overall characterization and part of the plot made up of character names, personality, and relationships.

The court held that a literary work consists of three elements: characters, plot, and setting.

Regarding characters, the court agreed with the plaintiff, holding that the original author’s setting of these elements showed a strong logical structure, which reflected his choice and arrangement and formed copyright accordingly. The Fanfiction’s copying of these elements constitutes plagiarism prohibited by the Copyright Law.

Regarding the plot and setting, the court disagreed with the plaintiff, holding that the Fanfiction differed from the original works in the following aspects: the time, place, and setting in which the story takes place, the clues and events that drive the story, the design and arrangement of specific scenes, and the underlying logic and causality of the story. Therefore, the Fanfiction did not infringe the original works’ copyright in terms of the plot.

Since Jin Yong had passed away before the court of the second instance rendered its judgment, the plaintiff was the executor and fiduciary of his will.

 

Photo by zhang kaiyv on Unsplash

Contributors: CJO Staff Contributors Team

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