Recently, the Dongfang Selection "Little Composition" incident has continued to ferment, and affected by this turmoil, the Dongfang Selection account has lost more than 2 million fans within a week, and Dong Yuhui's personal live broadcast account has been in a state of continuous increase in fans. With the continuous increase in the number of Dong Yuhui's fans, the value of his personal live broadcast account has also risenWho can continue to master the traffic password to reap huge financial benefits?
1. The platform has the ownership of the account
Although different online platforms have slightly different requirements for users when they register, they basically all have the meaning of "the ownership of the user account belongs to the platform operator".
According to Article 3 of the "Douyin" User Service AgreementArticle 4: Your registered account in "Douyin" is limited to your own use, and it is forbidden to donate, borrow, rent, transfer, sell or otherwise license others to use the account in any form without the written consent of the company. If the Company discovers or has reasonable grounds to believe that the User is not the initial registrant of the account, the Company has the right to immediately suspend or terminate the services provided to the registered account and permanently disable the account in order to ensure the security of the account.
Therefore, Douyin users cannot become the owners of the account because of their property rights and interests, but users can enjoy the right to use the account according to the user agreement. In other words, once Dong Yuhui and Dongfang Selection terminate their cooperation, the two sides will compete for the right to use Dong Yuhui's personal live broadcast account instead of ownership.
II. Factors to be considered in determining the ownership of the right to use the account
In current disputes over the right to use live streaming accounts, the court will usually determine the ownership of the account based on various factors such as the facts and the original defendant's claims, mainly including the following three aspects:
1) Contractual provisions.
In practice, the cooperation agreement signed between the anchor and the MCN institution usually stipulates the management authority and the ownership of the right to use the account, the entity responsible for the operation, and the revenue sharing of the account. The court will generally respect the autonomy of the civil subject, review whether there is a clause in the agreement between the parties that stipulates the ownership of the account, and determine the ownership of the account according to the agreement between the parties.
For example, in the case of a contract dispute between Gao and Hubei Xinglvbo Culture Media [(2022) Xiang 08 Min Zhong No. 617], the court held that the voluntary agreement and disposal of the ownership of the live broadcast account between the parties did not violate the mandatory provisions of laws and administrative regulations, and should be protected by law. Gao's appeal asserted that the original judgment's determination of the ownership of the live broadcast account involved in the case was unfair, and that the reason that the change in the ownership of the live broadcast account involved in the case would lead to the restriction of his right to re-register the live broadcast account and use Douyin was inconsistent with the ascertained facts of the case, and that he, as a person with full civil capacity, voluntarily signed the Cooperation Agreement, and had clearly waived all rights and interests in the live broadcast account involved in the case, and there was no misunderstanding of the relevant legal consequences.
2) The personal attributes of the account.
Since the live broadcast account has strong personal attributes, even if the contract stipulates that the account belongs to the company, it cannot be ruled out that it may be judged to belong to the anchor due to its strong personal dependence or the host's weak position at the time of signing the contract. For example, in the case of a performance contract dispute between Beijing Dianji Times Technology Development *** and Bai [(2023) Jing 01 Min Zhong No. 225], after binding the real-name information of the account, Bai accumulated a certain number of fans due to the use of works and dynamics in the process of using the account, and his right to use and manage the account is already a personal exclusive right, and it is not appropriate to force him to change the real-name authentication information through litigation.
3) The operation and incubation of the account by the MCN institution.
Usually MCN institutions invest a lot of money and resources in the operation of the account, especially the account that has become the head Internet celebrity, once it is attributed to the Internet celebrity himself, it will directly cause serious losses to the MCN institution. Therefore, when determining the ownership of the account, the court will also consider the operation and incubation of the account by the MCN institution.
For example, in the case of an unfair competition dispute between a cultural media in Chongqing and Li et al. [(2020) Yu 01 Min Chu No. 1035], the court held that, firstly, from the registration process of the account involved in the case, the registrant was the legal representative and executive director of the plaintiff, and served as the manager of the company;Secondly, from the perspective of account usage, the published content is all KOL commercial or daily, which is in line with the work content;Thirdly, judging from the ownership and management of the exchange accounts between the two sides, relevant information shows that the company has invested money and manpower in KOL's Douyin live broadcast activities, ** shooting, fan maintenance, etc. Finally, judging from the results of the account operation, through the company's operation, the account involved in the case has accumulated tens of millions of followers, has formed a certain popularity across the country, and has very high commercial value, so the account involved in the case should belong to the company.
Based on the above, in judicial practice, the court will determine the attribution from multiple perspectives, and when there is an agreement, the court will often make a determination in accordance with the agreement, but it will also comprehensively consider factors such as the actual registrant of the account, the relevant provisions within the platform, the legal relationship between the MCN institution and the anchor, the contribution of the anchor and the MCN institution to the account incubation, and the degree of connection between the account and the MCN institution.
Returning to the "small composition" incident of Dongfang Selection, even if the contract signed between Dong Yuhui and Dongfang Selection clearly stipulates that his personal account belongs to the company, once a dispute arises between the two parties, the account may not be directly used by the company, and the personal exclusivity of his account is one of the important considerations. Dong Yuhui's personal account itself is registered by his real name, and the account is also operated by himself on a daily basis, and the content published is also his daily life. After the "small composition" incident, Dong Yuhui's fans and Dongfang's selection of fans complemented each other, and the correlation between his account and himself can be seen. In this case, even if there is a clause in the contract between the two parties that "the personal account belongs to the company", once a dispute arises between the two parties, the court may determine that the user of the personal account belongs to Dong Yuhui.