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Viewpoint | "Only this green" is not only "green waist"-pay attention to the protection of intellectual property rights of dance works

Published:

2022-09-15

"Only Green" is a key support work of the "Excellent Stage Art Project to Celebrate the 100 Anniversary of the Founding of the Communist Party of China". On New Year's Eve on January 31, 2022, the play was featured in the "2022 Central Radio and Television General Station Spring Festival Gala". The segment made "Green Waist" a popular word, but the full version must watch the national tour of the dance drama. On September 14, 2022, the dance drama landed in Quancheng, fortunately, I watched the first performance at the Shandong Grand Theater, and I knew that "Only This Green" is not only a "green waist", but a dance drama with a complete plot. Through the seven chapters of "exhibition of scrolls, asking for seal, singing silk, searching for stones, learning to write, quenching ink and painting", "This Green Only" tells the story of a young researcher from the Forbidden City, as an "exhibition scrolls person", who has a deep understanding of Wang Ximeng, a painter who is unknown in time and space but has a long history, using dance, music, setting and photoelectric projection to show the process of his painstaking creation of "A Thousand Miles, the expression of the birth of a work of art depends on the continuous refinement of the body and mind of seal carvers, quarrying pigments, silkworm weavers, pen makers, ink makers and painters, in order to create a graceful and charming, sometimes peaks and mountains, sometimes majestic, sometimes paper fragrance ink flying, sometimes full of green mountains and green waters, melting the air of the vast mountains and mountains. Whether it is "A Thousand Miles of Rivers and Mountains" itself or "Only This Green" dance drama, it is actually the crystallization and expression of painstaking creation, which is why intellectual property rights should be protected. On May 22, 2022, Zhou Liya, director of "Only Green", issued an article questioning the plagiarism of "Shuangxiang Trail" launched by Zhejiang TV Children's Channel and dubbed it original. On May 23, Zhejiang TV Children's Channel issued an apology and removed "Shuangxiang Path" from the shelves. In fact, "Only This Green" is not only a dance work, but also a combination of a drama work and a dance work. The nature of its work is more complicated. At the same time, compared with other copyright cases, the number of dance infringement cases in judicial practice is not comparable, and the judgment of dance works infringement is also controversial. When judging dance works infringement, we seem to pay too much attention to posture and movement, while ignoring the coherent process expression before and after dance, as well as its combination with sound and light, makeup, clothing, stage modeling design, etc., especially the continuous development of science and technology, with the continuous integration of AR (augmented reality) and VR (virtual reality) technology, we should re-examine the criteria for judging the infringement of dance works. Do 1. need to compare the removal of common sexual elements in dance When it comes to dance infringement, the defendant often defends that the common elements of dance are regarded as public resources, and a large number of the same dance movements can be used in any dance, thus requiring the elimination of the common elements of dance. There is a decision to support this defense, but it does not require the elimination of common elements. For example, the Beijing No. 2 Intermediate People's Court in the "Hello to the Motherland" Yangko dance infringement case "but these same dance movements are universal movements necessary for Yangko dance and can be used by anyone. Moreover, the overall choreography of the dance works of the two sides is different, and the timing, order and form of expression of these same dance movements in the dance works of the two sides are also different." In view of the fact that movements will be standardized in the process of specific dance training, if the same movements are eliminated as common elements, there may be no place for both sides to compare. However, the connection changes of different movements are rich and colorful, and the ways of expression are also diverse. Therefore, it is not necessary to eliminate common elements in judging dance infringement. The key is to see the arrangement, connection and expression of these elements. Is 2. infringement comparison frame by frame or overall comparison If you compare frame by frame, even the same dance performance is difficult to achieve complete consistency, frame by frame comparison results will certainly find a lot of different details, but ignore the overall expression. Therefore, the principle of dance infringement comparison should be based on the judgment method of trademark approximation. First, "overall comparison" should be carried out, and the whole dance should be regarded as a complete work. The overall comparison should be carried out for the starting, turning, transition and connection of movements. If the overall approximation is formed, the key parts of the two dances should be further "compared" to find out the key parts of their respective dances, it depends on whether the expressions of the main movements, connections and emotional contents are similar. If they are similar, it can be judged that the two dance works are substantially similar. How 3. judge the expression of dance According to the "Implementation Regulations of the Copyright Law", "dance works refer to works that express thoughts and emotions through continuous movements, postures, expressions, etc." When dealing with dance works, we pay too much attention to the movements, postures and expressions of dancers. In fact, the dance drama "Only Green" not only shows the skill of "blue and green waist", but also expresses richer ideological connotation through the mutual cooperation of dancers, the transformation of stage setting, movement, transposition and so on, to judge the expression of dance, we should learn from the case of Chen Zhe (Qiong Yao) v. Yu Zheng (Yu Zheng) of the Third Intermediate People's Court of Beijing, whose protection works "the relationship between characters, specific plots and the whole formed by the series of specific plots", which corresponds to the setting of the relationship between the lead dance, the main dance and the companion dance in the dance choreography, and the corresponding positions, interactive expression and the evolution of the plot, at the same time, it is also necessary to consider "the combination of music, clothing, lighting and movements to express specific themes and thoughts and emotions" (see: Beijing Haidian District People's Court "Qianshou Guanyin" infringement case). Judging dance expression is obviously not limited to movements, postures and expressions. In fact, the "Regulations for the Implementation of the Copyright Law" also provide enumeration for the definition of dance works, but do not restrict more expressions of dance works. 4. dance sign moves or shapes how to protect For example, Yang Liping's peacock dance movements or modeling can be protected separately. Beijing Dongcheng District People's Court Yunnan Yang Liping Information Technology Development Co., Ltd. and Beijing Xinzheng Yicheng Catering Management Co., Ltd. and other unfair competition disputes, the court held: "The pattern involved on the central screen of the restaurant involved in the case and the" Moonlight "dance work, The former is static, the latter is dynamic, and the pattern involved in the case can find the corresponding movements and shapes during the dance process, whether the two constitute a substantial similarity in the sense of copyright law depends on whether the action modeling corresponding to the pattern involved belongs to the original expression of the dance work. Dance works are the organic combination of dynamic combination, static movement and modeling composed of continuous movements. On the one hand, the originality of dance works is reflected in the choreography, combination and connection between dance movements, on the other hand, it may also be reflected in specific dance movements. The dance movements corresponding to the pattern involved in the case in the dance works of Moonlight, combined with the dancer's specific makeup style and moonlight background, express certain thoughts and feelings, reflect the author's choice, design and arrangement, and are original. the behavior of the restaurant involved in the case using the pattern involved infringes the copyright of the dance works of Moonlight." The court held that the dance manifested itself as a composite of both dynamic and concrete static movements, affirming the protectability of the signature movements or shapes. 5. whether access to the obligee's work is a necessary prerequisite for judging infringement. Should the judgment of infringement be based on the premise of "contact" with the obligee's work? Assuming that the alleged infringer did not contact the plaintiff's work, but independently created a similar work, it can only be identified as "identical" work rather than infringement, which is different from the reasoning of cheating in the same volume of the college entrance examination. However, it is difficult to judge whether the accused infringer has actual contact, so it is generally judged according to the influence of the obligee's dance communication and the possibility of the accused infringer's contact. As the plaintiff, he should provide considerable evidence to confirm it before safeguarding his own rights. Judging dance infringement is also a complex process. It is necessary to look at the overall expression of dance as a whole, pay attention to its key original parts, and also consider the special effects produced by the integration of scientific and technological elements into music, stage design, clothing modeling and makeup. This is a complex process of legal re-understanding. So, "only this green" is not just "green waist"......

Through the seven chapters of "exhibition of scrolls, asking for seal, singing silk, searching for stones, learning to write, quenching ink and painting", "This Green Only" tells the story of a young researcher from the Forbidden City, as an "exhibition scrolls person", who has a deep understanding of Wang Ximeng, a painter who is unknown in time and space but has a long history, using dance, music, setting and photoelectric projection to show the process of his painstaking creation of "A Thousand Miles, the expression of the birth of a work of art depends on the continuous refinement of the body and mind of seal carvers, quarrying pigments, silkworm weavers, pen makers, ink makers and painters, in order to create a graceful and charming, sometimes peaks and mountains, sometimes majestic, sometimes paper fragrance ink flying, sometimes full of green mountains and green waters, melting the air of the vast mountains and mountains.

Whether it is "A Thousand Miles of Rivers and Mountains" itself or "Only This Green" dance drama, it is actually the crystallization and expression of painstaking creation, which is why intellectual property rights should be protected. On May 22, 2022, Zhou Liya, director of "Only Green", issued an article questioning the plagiarism of "Shuangxiang Trail" launched by Zhejiang TV Children's Channel and dubbed it original. On May 23, Zhejiang TV Children's Channel issued an apology and removed "Shuangxiang Path" from the shelves.

In fact, "Only This Green" is not only a dance work, but also a combination of a drama work and a dance work. The nature of its work is more complicated. At the same time, compared with other copyright cases, the number of dance infringement cases in judicial practice is not comparable, and the judgment of dance works infringement is also controversial. When judging dance works infringement, we seem to pay too much attention to posture and movement, while ignoring the coherent process expression before and after dance, as well as its combination with sound and light, makeup, clothing, stage modeling design, etc., especially the continuous development of science and technology, with the continuous integration of AR (augmented reality) and VR (virtual reality) technology, we should re-examine the criteria for judging the infringement of dance works.

Do 1. need to compare the removal of common sexual elements in dance

When it comes to dance infringement, the defendant often defends that the common elements of dance are regarded as public resources, and a large number of the same dance movements can be used in any dance, thus requiring the elimination of the common elements of dance. There is a decision to support this defense, but it does not require the elimination of common elements. For example, the Beijing No. 2 Intermediate People's Court in the "Hello to the Motherland" Yangko dance infringement case "but these same dance movements are universal movements necessary for Yangko dance and can be used by anyone. Moreover, the overall choreography of the dance works of the two sides is different, and the timing, order and form of expression of these same dance movements in the dance works of the two sides are also different." In view of the fact that movements will be standardized in the process of specific dance training, if the same movements are eliminated as common elements, there may be no place for both sides to compare. However, the connection changes of different movements are rich and colorful, and the ways of expression are also diverse. Therefore, it is not necessary to eliminate common elements in judging dance infringement. The key is to see the arrangement, connection and expression of these elements.

Is 2. infringement comparison frame by frame or overall comparison

If you compare frame by frame, even the same dance performance is difficult to achieve complete consistency, frame by frame comparison results will certainly find a lot of different details, but ignore the overall expression. Therefore, the principle of dance infringement comparison should be based on the judgment method of trademark approximation. First, "overall comparison" should be carried out, and the whole dance should be regarded as a complete work. The overall comparison should be carried out for the starting, turning, transition and connection of movements. If the overall approximation is formed, the key parts of the two dances should be further "compared" to find out the key parts of their respective dances, it depends on whether the expressions of the main movements, connections and emotional contents are similar. If they are similar, it can be judged that the two dance works are substantially similar.

How 3. judge the expression of dance

According to the "Implementation Regulations of the Copyright Law", "dance works refer to works that express thoughts and emotions through continuous movements, postures, expressions, etc." When dealing with dance works, we pay too much attention to the movements, postures and expressions of dancers. In fact, the dance drama "Only Green" not only shows the skill of "blue and green waist", but also expresses richer ideological connotation through the mutual cooperation of dancers, the transformation of stage setting, movement, transposition and so on, to judge the expression of dance, we should learn from the case of Chen Zhe (Qiong Yao) v. Yu Zheng (Yu Zheng) of the Third Intermediate People's Court of Beijing, whose protection works "the relationship between characters, specific plots and the whole formed by the series of specific plots", which corresponds to the setting of the relationship between the lead dance, the main dance and the companion dance in the dance choreography, and the corresponding positions, interactive expression and the evolution of the plot, at the same time, it is also necessary to consider "the combination of music, clothing, lighting and movements to express specific themes and thoughts and emotions" (see: Beijing Haidian District People's Court "Qianshou Guanyin" infringement case). Judging dance expression is obviously not limited to movements, postures and expressions. In fact, the "Regulations for the Implementation of the Copyright Law" also provide enumeration for the definition of dance works, but do not restrict more expressions of dance works.

4. dance sign moves or shapes how to protect

For example, Yang Liping's peacock dance movements or modeling can be protected separately. Beijing Dongcheng District People's Court Yunnan Yang Liping Information Technology Development Co., Ltd. and Beijing Xinzheng Yicheng Catering Management Co., Ltd. and other unfair competition disputes, the court held: "The pattern involved on the central screen of the restaurant involved in the case and the" Moonlight "dance work, The former is static, the latter is dynamic, and the pattern involved in the case can find the corresponding movements and shapes during the dance process, whether the two constitute a substantial similarity in the sense of copyright law depends on whether the action modeling corresponding to the pattern involved belongs to the original expression of the dance work. Dance works are the organic combination of dynamic combination, static movement and modeling composed of continuous movements. On the one hand, the originality of dance works is reflected in the choreography, combination and connection between dance movements, on the other hand, it may also be reflected in specific dance movements. The dance movements corresponding to the pattern involved in the case in the dance works of Moonlight, combined with the dancer's specific makeup style and moonlight background, express certain thoughts and feelings, reflect the author's choice, design and arrangement, and are original. the behavior of the restaurant involved in the case using the pattern involved infringes the copyright of the dance works of Moonlight." The court held that the dance manifested itself as a composite of both dynamic and concrete static movements, affirming the protectability of the signature movements or shapes.

5. whether access to the obligee's work is a necessary prerequisite for judging infringement.

Should the judgment of infringement be based on the premise of "contact" with the obligee's work? Assuming that the alleged infringer did not contact the plaintiff's work, but independently created a similar work, it can only be identified as "identical" work rather than infringement, which is different from the reasoning of cheating in the same volume of the college entrance examination. However, it is difficult to judge whether the accused infringer has actual contact, so it is generally judged according to the influence of the obligee's dance communication and the possibility of the accused infringer's contact. As the plaintiff, he should provide considerable evidence to confirm it before safeguarding his own rights.

Judging dance infringement is also a complex process. It is necessary to look at the overall expression of dance as a whole, pay attention to its key original parts, and also consider the special effects produced by the integration of scientific and technological elements into music, stage design, clothing modeling and makeup. This is a complex process of legal re-understanding. So, "only this green" is not just "green waist"......

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