Chapter 18 Chapter Five: The First Case of Chinese Flash
On June 15, 2006, Nike of the United States won a famous intellectual property case that lasted two and a half years in the Beijing High Court.Zhu Zhiqiang, who once won the first trial and received a compensation of 300,000 yuan, will have to bear more than 40,000 yuan in legal fees for the first and second trials after losing the case.
Because a well-known American company is suspected of infringement, and it is the first case of Chinese Shank, this Sino-US intellectual property case has attracted widespread media attention and has become a famous case.The Beijing court adopted an extremely cautious attitude in the trial, but few people thought that the two judgments were completely different.After the verdict of the second instance was pronounced, Zhu Zhiqiang's agent said: "The gap between the judgment of the first instance and the judgment of the second instance is too great." Nike believes that the judgment of the second instance is fair.So, why did the court make such a huge contrast in this famous Sino-US intellectual property case caused by two "villains"?
Created "Little", Zhu Zhiqiang was honored as China's No. 1 flasher
Before understanding this case, let us first understand the origin of "Flasher".
The so-called "flash" refers to Flash (the original meaning of the English word refers to flash, flash).The so-called "Flasher" also refers to people who often use and make Flash.The word "Shanke" originated from the personal website of "Smoke Empire". Today, "Shanke" together with concepts such as hackers and blogs constitute a turbulent wave of Internet subculture.
A researcher described Flashers like this: Whenever night falls, they choose "Flash" and use a software called Flash to animate the looming feelings hidden in their hearts, maybe it's a piece of MTV, maybe it's a piece of sadness The story, maybe just a humor.These works spread online, earning a smile or a few tears.
Flash began to appear in China in 1997. Flash is an excellent software with relatively low technical threshold. Flash, a new online animation format, has vivid movements, flowing colors, and embellishments of music and sound.Just like its name, it seems that in a "flash", the vast Internet bid farewell to the mechanical movement of pictures, and the entire Internet came alive because of Flash.It allows many amateurs to quickly join the ranks of creators, because many of them used to be good at making images, animations, etc., and they gradually grew into excellent Flash creators, and people call them Flash. Be a flasher!
Most of the flashers are very familiar with the Internet and are lonely masters of technology. Many of them are also artists who are obsessed with ideals.The Shanke family has gradually formed and grown rapidly since 2000, and the original works of Shanke have emerged in droves.For example, a song called "Northeast People Are Living Lei Feng" did not attract public attention when it was first released. Later, some flashers reinterpreted it with Flash, making it popular quickly, and singer Xuecun became famous because of it... …
In addition to the well-known "Northeast People Are Living Lei Feng", Flash animations such as the "Little Series" in the Mainland and the "Agui" series in Taiwan have also become signature dishes that netizens love to see.The "Xiaoxiao Series" of the highest limit is one of the best representatives. Zhu Zhiqiang, who created "Xiaoxiao", spent a lot of hard work to make Xiaoxiao a martial arts star.
Zhu Zhiqiang, whose pen name is "Xiaoxiao", was born in June 1976. He is from Yongji County, Jilin Province, and currently lives in a community in Fengtai District, Beijing.Zhu Zhiqiang had the idea of animation creation when he was a child, and he always drew some simple villain images in textbooks.Since 1989, Zhu Zhiqiang has been creating the image of "Matchstick Man".During the creation process, Zhu Zhiqiang poured his feelings and thoughts into this image, which will be expressed through every movement of the "stick man". In April 2000, Zhu Zhiqiang created the first Flash "Dugu Qiubai", which was the first time to use "match stick man" as the theme character image of his work in the virtual space.Since June 2000, Zhu Zhiqiang has successively created and completed "Passing Passes", "Little No. 3", "Little Special Police", "Little No. 5", "Little Series" with "match stick villain" as the theme character image. 6" and other works.
Since Zhu Zhiqiang created "Dugu Qiubai", he has designed more physical movements for the "matchstick man" named "Little". In the new form of expression made by computer, Zhu Zhiqiang has given new vitality to the work. And spread rapidly through the Internet, especially among netizens in the virtual space. "Matchstick Man" has become a specific character image that is deeply connected with Zhu Zhiqiang.
In 2000, "Passing the Level" created by Zhu Zhiqiang was awarded the Best Game Award in the WACOM Cup Flash Contest of the year. On August 31, 2001, "Little SWAT No. 4" created by Zhu Zhiqiang won the Crystal Award of Interactive Games in the First Pentium 4 Processor Computer Flash Animation Creative Competition and Flash Animation Film Festival in China. On December 15, 2001, "New Weekly" selected Zhu Zhiqiang as "Internet Person of the Year". Ingenious, the action design is not inferior to first-class action movies. What's more commendable is that it tells people what is simple and beautiful with the outline of lines. Small works enhance the character of the entire Flash creation. A title deeply rooted in the hearts of the people."
Since Zhu Zhiqiang completed the Flash "Dugu Defeat" in April 2000, many companies and media have discussed cooperation with him. On July 18, 2001, Zhu Zhiqiang signed an agreement with South Korea Baronson Co., Ltd., agreeing that Zhu Zhiqiang authorized Baronson Co., Ltd. to be the exclusive agent in South Korea to display original Flash animation series works on computer networks and various businesses.Since then, Zhu Zhiqiang is negotiating with some commercial organizations and individuals on the use of copyright.
Zhu Zhiqiang, known as "China's No. 1 flasher" because of his creation of "Xiaoxiao", pays great attention to the protection of intellectual property rights of his works. He not only registered his works' copyrights. On June 23, 2003, he also filed an application for trademark registration with the Trademark Office of the State Administration for Industry and Commerce in the image of "match stick man", which has been preliminarily approved.However, Zhu Zhiqiang did not expect that the "matchstick man" he created had been "cloned", and the alleged infringement was the internationally renowned Nike company.
Suing Nike for copyright infringement, Zhu Zhiqiang started the first case of China's Shank
Nike is a world-renowned sporting goods company, and Nike sports shoes are even more famous all over the world.In 1996, Nike established a wholly-owned Suzhou Nike company in China. In October 2003, Nike headquarters and Suzhou Nike Company organized the "2003 NIKE-Freestyle Cool King National Search" campaign and publicized and promoted its new product "NIKESHOXSTATUSTB", respectively on Nike's website, Sina.com, Beijing Wangfujing Street, The Beijing Subway (Tiananmen West) platform and the Beijing TV Sports Channel released advertisements.In these advertisements, Nike used the animated character "Black Stick Man" with the same basic characteristics as Zhu Zhiqiang's "Matchstick Man".
In October 2003, some friends told Zhu Zhiqiang that they saw the image of "match stick man" in the advertisement of Sina.com, and they thought that Zhu Zhiqiang was cooperating with others.After Zhu Zhiqiang saw it on Sina.com, he felt very uncomfortable.But at that time, Zhu Zhiqiang had no idea of resorting to the law, but more and more friends told him about it. For this reason, he consulted relevant lawyers. The lawyer believed that Nike had infringed and suggested Zhu Zhiqiang to protect his copyright.
The reason why Zhu Zhiqiang finally went to court was that he had signed a copyright contract with a Korean company before, and he was negotiating with some commercial organizations about the use of copyright. Zhu Zhiqiang believed that Nike's use of "black sticks" violated his copyright. The right of authorship, right of modification, right to protect the integrity of the work and property right.For this reason, in December 2003, Zhu Zhiqiang entrusted a lawyer to sue Nike, the advertising operator Yuantai Company, and the advertising publisher Sina Company as defendants, arguing that these companies constituted joint infringement.Request the court to order the defendant to compensate the plaintiff for the loss of RMB 2 million; stop infringing on the plaintiff's copyright, apologize to the plaintiff within the same range of adverse effects caused by it, and eliminate the impact; jointly bear the relevant expenses paid by the plaintiff to stop the infringement.
As the first case of flash hackers in China, Zhu Zhiqiang's lawsuit immediately attracted widespread attention from all walks of life.
However, Nike, which became the defendant, complained again and again. The advertisement released by Nike containing the "black stick villain" was independently completed by Nike in July 2002. The budget for the advertising campaign is 2.4 million euros (approximately 25 million yuan).According to the contract between Nike and W&K, the copyright of this advertisement belongs to Nike.Nike's request to W&K is that the brand's advertising should reflect Nike's understanding of sports and culture.According to Nike's suggestion, W&K used the image of a villain with lines to interpret the concept of Nike.
The creative goal of W&K Company is to design an image from the lines of real objects in the real world, which can interact with real people and stimulate people's inner creative potential.The line man represents natural and unadorned creativity, and at the same time he is the best and coolest athlete who can compete with real sports stars such as Ronaldo and Beckham.Therefore, the design of the "Black Stick Man" advertisement is completely unique and copyrighted by Nike.
Nike believes that Zhu Zhiqiang's "Matchstick Man" is different from Nike's "Black Stick Man".First of all, Zhu Zhiqiang's "match stick figure" is thick and simple, and the head and torso are connected, giving people a two-dimensional effect.And Nike's "Black Stick Villain" was designed as an "ultimate athlete", that is, the villain's head and body were separated to strengthen the analogy of the ball, and the villain's limbs were elongated to accommodate smooth and smooth movements. It gives people the feeling of being slender, smooth and delicate, and highlights a three-dimensional effect.
Secondly, Nike believes that the image of the "matchstick man" that Zhu Zhiqiang is suing for copyright infringement does not possess the originality required by Article 2 of the Implementation Regulations of the Copyright Law of the People's Republic of China, and should not be protected by the Copyright Law. The image of "match stick man" is only a symbol for abstract representation of characters. This symbol has been clearly defined and drawn in well-known dictionaries at home and abroad. The villain composed of lines can express characters concisely and easily. Because of its simplicity, it was first seen in the murals and petroglyphs of ancient civilizations, as well as in the novels and textbooks of the predecessors. It is still used in daily life as a simple expression of "person" today. Such an oversimplified image Obviously, it belongs to the commonly used patterns in the public domain, which cannot meet the "originality" required by the copyright law.
In addition, Nike also believes that Zhu Zhiqiang's "Matchstick Man" plot action is not the same or similar to the advertisement released by Nike, and the popularity of Zhu Zhiqiang's work "Little" has nothing to do with this case.In order to make this advertisement, Nike specially hired many stars including the famous Brazilian football star Ronaldo to participate in the performance creation, mainly intending to use the above-mentioned sports stars to achieve the required advertising effect. "Stick Man" network animation works.Based on the above facts and reasons, the defendant Nike requested the court to dismiss the plaintiff's claim according to law.
Court battle, Nike loses first trial
The Beijing No. 1 Intermediate People's Court conducted a prudent trial of this famous intellectual property case involving China and the United States.During the trial, the views of the two sides were tit-for-tat, and they did not give in to each other. They had a heated debate mainly around the four focus points of controversy.
The first is about Zhu Zhiqiang's claim to the image copyright of "Little Matchstick Man" and its popularity.Zhu Zhiqiang claimed that he had started to create the image of "Matchstick Man" since 1989, and submitted a 3-page photocopy of the corresponding book to prove it.The defendant, Nike, recognized the early creation of the plaintiff Zhu Zhiqiang’s image works of “Matchstick Figures”, but believed that these figures were plagiarized or copied from the illustrations of “Dancing Figures” in “The Collection of Sherlock Holmes”, and that the plaintiff Zhu Zhiqiang did not own the “Matchsticks”. Evidence of the copyright of the image of Stick Man".
The second is about whether Nike's alleged infringement exists.Nike believes that although Nike has used the "black stick figure" as one of the elements of advertising works, Zhu Zhiqiang's "match stick figure" as an independent individual pattern does not meet the originality standard required by the copyright law and should not It is protected by the copyright law, so Nike has not infringed the copyright of the image works of "Matchstick Man".
The third is whether the image of the "little man with lines" has entered the public domain.In order to prove that the image of "Matchstick Man" has no originality and belongs to the public domain or a common pattern that has existed for a long time, Nike submitted 18 pieces of evidence to the court. Among them, the representative "Line Man" image evidence includes: Conan Doyle's late 19th-century Sherlock Holmes imagery of the "dancing figure" motif; Webster's Collegiate Dictionary defines the adjective "line figure" as "a fictional character lacking depth and believability." In addition, Nike also provided the image of the "little man with lines" that appeared in the rock paintings of ancient humans in North America, the image of traffic signs and sidewalk prompts in Shanghai, and the "little man with lines" image released by Nike in 1973. Person image brochures, etc.
During cross-examination in court, the plaintiff Zhu Zhiqiang believed that the dancing villain was just a flat, static outline of lines, and was only one of the clues needed in Sherlock Holmes's detective work, which was fundamentally different from the image of the "matchstick villain" in Flash; for other evidence , the plaintiff objected to its authenticity, legality, and relevance on the grounds that the source and formation time were unclear, and believed that it could not prove that the image of the villain belonged to the public domain.
The fourth is about the similarities and differences between the images of "matchstick villain" and "black stick villain".Zhu Zhiqiang's "Matchstick Man" has the following characteristics: the head is a black sphere without a face; the torso, limbs and feet of the body are all made of black lines; the head and body of the villain are connected.
The image features of the "black stick villain" are: the head is a black sphere without a face; the torso, limbs and feet of the body are all made of black lines; the villain's head and body are separated; the limbs of the villain are drawn Long shape.
By comparison, the basic elements and characteristics of the "Black Stick Man" are the same as those of the "Matchstick Man". The heads of both are black spheres and have no faces. Composed of black lines, the thickness, thickness, roundness and overall aesthetic feeling of the two black lines are basically similar.
The Beijing No. 1 Intermediate People's Court held that Zhu Zhiqiang's "Matchstick Man" is an aesthetic re-creation of the lines and combinations of the "Line Man" image commonly used in the public domain, which constitutes a Chinese copyright. "Plastic or three-dimensional plastic art works" in the legal sense, that is, works of art.The characteristics of the image of the "little black stick man" used by Nike in the alleged infringing advertisement are basically the same as those of the animation image of the "match stick man" to which Zhu Zhiqiang has the copyright, so the two constitute similar works of art. The image of "Black Stick Man" is an imitation or plagiarism of Zhu Zhiqiang's copyrighted "Matchstick Man" cartoon image.Nike, without authorization, used the "Black Stick Man" image work similar to the "Matchstick Man" cartoon image in advertisements, causing infringement of the right to use Zhu Zhiqiang's works and the right to receive remuneration, and should bear corresponding liabilities according to law. civil liability.The animation image of "Little Man" used by Nike modified Zhu Zhiqiang's copyrighted cartoon image of "Little Man" without signing his name. This behavior violated Zhu Zhiqiang's right of authorship and right of modification.
On December 29, 2004, the Beijing No. 1 Intermediate People's Court made a judgment that the "black stick villain" in Nike's advertisement infringed the copyright of Zhu Zhiqiang's original "matchstick villain". A public apology was made online, and the plaintiff was compensated 300,000 yuan.
The second trial was overturned, and the two villains staged a big reversal
After the judgment of the first instance, Nike refused to accept it and appealed to the Beijing Higher People's Court. Nike believed that it was wrong to determine that the image of "matchstick villain" was protected by copyright law in the first instance judgment; It is wrong to say that the image is similar to Zhu Zhiqiang's "Matchstick Man"; it is wrong to determine that Nike is infringing.
On November 9, 2005, the Beijing Higher People's Court conducted a second instance of the case. During the court hearing, the focus of the dispute between the two parties was whether the "Matchstick Man" was original in the sense of copyright. Whether there is any essential difference between "Black Stick Man" and "Matchstick Man" in Zhu Zhiqiang's animation works, and the basis for Zhu Zhiqiang's claim.The two sides defended each focus issue separately, and demonstrated the production process of the two villains in court.The court defined the works of both parties as static images, rather than dynamic villains in animation and TV works.
During the hearing of the Beijing Higher People's Court, Zhu Zhiqiang's attorney stated when answering the question about Zhu Zhiqiang's "what is the concept and scope of the image of the stick man who claims rights": "In this case, the scope of our claim is static anime characters."
However, during the trial of this case, Zhu Zhiqiang did not clearly point out which static image of the "Black Stick Man" was identical or basically similar to the image of the "Matchstick Man" in the advertisement containing the image of "Black Stick Man".
According to the statement made by Zhu Zhiqiang’s agent during the trial of the second instance, what Zhu Zhiqiang claimed was the copyright of the static image of “Matchstick Man”. Therefore, the scope of the trial of the court of second instance is whether the static image of “Matchstick Man” is subject to copyright. Whether the image of "Black Stick Man" infringes the copyright of the static image of "Matchstick Man" as a work protected by law.
The court found that Zhu Zhiqiang's image of "Matchstick Man" is original, conforms to the constitutional conditions of a work, and should be protected by the "Copyright Law".However, the court also held that since the image of a villain created by the method of "circle to represent the head and straight lines to represent other parts" has entered the public domain, anyone can create a villain based on this method.On the other hand, the originality of the image of "Matchstick Man" is not high.Therefore, the image of "Matchstick Man" cannot be overly protected, and at the same time, the part in the public domain should be excluded from the scope of protection.
Comparing the image of "match stick man" and "black stick man", the two have similarities, but the same part mainly exists in the part that has entered the public domain and should not be protected by the copyright law. The difference is exactly the It reflects the independent creation of their respective creators. Therefore, it cannot be determined that the image of "Black Stick Man" uses the original labor of "Matchstick Man". The image of the "Black Stick Man" did not infringe the copyright of Zhu Zhiqiang's "Matchstick Man" image, and Nike should not be liable for the infringement.
On June 15, 2006, the Beijing Higher People's Court made a final judgment, ruling that Nike's "Black Stick Man" did not infringe the copyright of Zhu Zhiqiang's "Matchstick Man"; Zhong Min Chu Zi No. 348 Civil Judgment; Zhu Zhiqiang's claim was rejected.This means that Zhu Zhiqiang not only did not receive the 300,000 yuan in compensation under the first trial, but also had to pay more than 40,000 yuan in litigation costs.
After the verdict, Zhu Zhiqiang's attorney lamented that "the judgments of the two trials differ too much" and believed that the revision of the verdict was entirely at the judge's discretion.However, Nike believes that the result of the final review is fair. Nike’s head of communication in China said: “For us, this is not a commercial issue, but a matter of principle.”
From beginning to end, Zhu Zhiqiang has been handling the lawsuit in a low-key manner.After losing the final trial, Zhu Zhiqiang naturally could not hide his frustration.When Zhu Zhiqiang sued Nike to the court, he didn't think much about it, and he didn't feel a lot of pressure. He just thought that whoever wants to bully him should ask for justice.But Zhu Zhiqiang did not expect such a reversal in the final judgment.
The outcome of this case is not important. The typical significance of this case is that China is striving to build an innovative country. In the future, China will have more and more independent intellectual property rights and independent brands, which need to be effectively protected.Nike's loss in the first instance to its victory in the final instance shows that the Chinese courts are becoming more sophisticated and perfect in the trial of intellectual property rights.China's legal environment has promoted the continuous strengthening of Chinese people's awareness of rights protection, and also given them a lot of courage.To this end, China has taken a series of actions to strengthen the legislation and administrative enforcement of intellectual property protection.