Introduction
Different from the complex processes and processes such as the creation, distribution, and release of traditional film and television dramas, short dramas, as the "darling" of the current public and social **, are characterized by "short, flat and fast". In order to grasp the core element of "top", "free-riding" and even "plagiarism" have become the "creation" methods of some short drama creators, and the legal problems caused by this have become increasingly prominent.
Content is the lifeblood of short dramas. Whether it is authorized adaptation or self-creation, the copyright of the script and the short play itself is a topic that short drama practitioners, especially short drama screenwriters, need to pay special attention to; Specific to the various components of the short play, such as the ** works in the short play, the stage design, the use of the portrait rights of talents, actors, and guest guests, must be reflected in the relevant agreement; Secondly, the infringement and infringement of related IPs, hot stalks, second creations, and slices also need to be paid attention to. Our team lists the specific risk points as follows for the reference of all practitioners:
Copyright Infringement Issues
(1) Infringement of others' copyrights
Due to the limitation of the length of the short drama script, it is necessary to present a complete story in a short period of time, cater to the current trend, and attract the audience at the same time, in the arrangement and design of the story content and plot, the choice space is very narrow, which leads to a large number of creators often "clustering" under the same theme to create. For example, the characters and storylines of "Blind Heart's Daughter" and Youku's short drama "Counterattack Romance" broadcast on Tencent** are almost identical, and disputes have arisen and caused heated discussions. In the short drama circle, the phenomenon of "bumping face", "bumping money", and "bumping the plot" is commonplace. The trend code of the short drama circle is: in a certain period, people like to watch a certain kind of plot and a certain kind of character works. "Blind Heart" and "Counter Romance" were "urban revenge emotional dramas" that were hot spots at that time. Producers of short dramas should try their best to avoid homogeneity, routines, and patterns of content, and avoid "bumping faces", "bumping money", and "bumping plots", so as to reduce the legal risk of content infringement of short dramas.
Another example is that the TV series "Return to 1993" produced by Tencent and the background setting, story structure, character setting, and character relationship of "Return to 1990" (first 17k** network) produced by Guanwai Xifeng "Return to 1990" are also very similar, which led to the author Zao Ni denouncing Tencent on Weibo, and also appeared on the hot search at that time.
Considering that some short drama producers do not use original scripts, but adapt the existing ** IP into scripts for short drama creation, the short drama producer needs to obtain the legal and effective authorization of the ** copyright owner, otherwise it may constitute an infringement of the copyright owner's adaptation rights and filming rights. For example, in a judgment issued by the Intermediate People's Court of Fuzhou City, Jiangxi Province, it was found that the defendant "Tang" published the short drama "A God Strategy Manual" on the Douyin platform, which constituted a substantial similarity to some chapters of "The E-sports God Secretly Loves Me", in which the plaintiff enjoyed copyright, and illegally sought benefits by using it, infringing China Literature's adaptation rights, filming rights, and information network dissemination rights. In the end, the court ordered the defendant "Tang" to compensate the plaintiff China Literature for economic losses of 100,000 yuan.
Therefore, the producer of the short drama should pay more attention to obtaining the authorization of the copyright owner of the original work and avoid selecting ** with disputed copyright for adaptation. At the same time, when cooperating with the copyright owner, it is necessary to reasonably plan the shooting, production and broadcast time to avoid infringement beyond the authorized period.
(2) Copyright infringement
Now many exclusive and paid short dramas have been simply processed and edited, and have become a collection of free **; On major platforms, you can see a lot of handling of short dramas**; There are also some accounts that publish works for profit under the guise of secondary creation and plot commentary. In the case of secondary creations, although in most cases they fall under the category of fair use, they may also constitute infringement; Specifically, if the second creation ** is used for profit-making purposes, usually as long as the second creation ** is published in the network environment, and the user can obtain it at any time, and it is no longer specifically required that its use of the second creation ** has a direct profit performance, even if the ** does not have charges, inserted advertisements, bringing goods, etc., it can also be considered that the creator has a profit purpose, or has the potential to make profits, and the second creation ** can be considered to constitute infringement. On the contrary, if the second creation is non-profit, and the proportion of the second creation cited by the second creation is reasonable, and it will not have a substitution effect on the prior creation, then we can consider that the use of the second creation ** on the prior ** is fair use. For details, please refer to Article 24 of the Copyright Law, which provides in detail 12 types of fair use.
If the second creation of ** constitutes infringement, the platform, as a network service provider of information storage space services, shall also be liable for damages if it connives, if it condones the spread of very obvious infringement** on the platform, or fails to delete it within a reasonable time after receiving the infringement notice; If the platform even cooperates with the creator of the second creation to spread the second creation**, then the platform will become a co-defendant of the infringement and jointly bear the liability for infringement with the infringer.
The issue of portrait rights in the development of short drama derivatives
Considering that some short dramas need to be further developed and commercialized after release, when using materials such as short drama stills and tidbits, the producer needs to pay attention to whether the character image is used, especially the portrait of the actor in the play. If the image of the character in the stills is recognizable, and the public can establish a corresponding relationship with the actor through the image, the actor can be deemed to have the right of portraiture in the stills and the portrait on the publicity**. Unless otherwise authorized, if the copyright owner of the short drama uses the stills and publicity** for other commercial purposes beyond the scope of business related to the short play, it shall obtain the consent of the portrait rights holder.
Therefore, our team suggests that in the process of signing the "Actor Employment Contract" with the relevant actors, the short drama producer should not only clarify the copyright ownership, but also agree on the scope of authorized use of the actor's portrait right; Clarify whether the use of the persona is for the promotion of the work or the use of elements of the work to advertise its products or brand; Clarify the scope and duration of authorization; Clarify the scope of subsequent development of the short drama and whether it includes sublicensing. At the same time, when signing the "Actor Employment Contract", the problem of "endorsement of competing products" should be avoided by excluding competing products or special agreements for specific categories of products.
Although shorter, faster, and more upper, is the goal of short dramas, but the short drama has accelerated from the "savage growth" situation into a "comprehensive quality improvement period", the digital Internet and entertainment media team reminds all practitioners to be more attentive at the same time, strengthen compliance awareness, avoid infringement risks, and take content as the king in order to output high-quality products.
In the next series of articles, we will bring the highlights of short drama production, and the analysis of the legal risks related to brand cooperation between short drama producers and investors, so stay tuned!
Disclaimer: *This article is published with the author's permission, and does not represent the position and views of Digital Law Firm, and is not intended as legal advice or recommendation for any case or issue. *
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