May 2018
If the individual figures in a single image all have vivid styles, they are all individually copyrightable (Taiwan)
2018.3.19
Jane Tsai
The Intellectual Property Court rendered the 106-Min-Zhu-Su-41 Civil Decision of March 19, 2018 (hereinafter, the "Decision"), holding that if the individual figures in a single image all have vivid styles, they are all individually copyrightable.
According to the facts underlying this Decision, the Plaintiff filed a complaint alleging that he had paid and commissioned another person to design the image of the gods of wealth at issue, had obtained its copyright and had published calendar products using the image of the gods of wealth at issue several times after 2010. However, he found that Defendant Company A had adapted the image of the gods of wealth at issue without authorization and had launched the goods at issue on such basis for sale by distributors such as Defendants Company B, Company C and Company D. Therefore, a complaint was filed to seek joint and several damages from the Defendants.
According to the Decision, if the image of the gods of wealth is directly compared with the goods at issue in their entirety, since the five gods of wealth in the image of the gods of wealth at issue were depicted in gold backing paper with additional elements in cardboard paper such as words like "Wealth Attracting Money" and "Fortune Spell" in the design, the overall differences could be obviously felt. However, if the image of the gods of wealth at issue and the image of each god of wealth depicted on the goods at issue are compared, it can be concluded that the facial expressions, the styles of five sensory organs (including beards), the objects held in hands, bodies and costumes, and belts were highly similar in all kinds of details and the overall look and feel. Therefore, it could be concluded that they were substantively similar.
It was further pointed out in this Decision that since the image of the gods of wealth at issue should be an artistic work, it would generally be more fair and objective to make an overall comparison. In this case, however, since the five gods of wealth in the image of gods of wealth at issue all have vivid styles as figures with separately depicted creative images in the image of the gods of wealth at issue, they should be regarded as images of individual gods of wealth with each image protectable under the Copyright Law. The purpose is to prevent the scenario where another person can create differences in the overall look and feel simply by making unimportant adjustments to the overall arrangement and position of each individual god of wealth to exclude the creator's efforts to create the individual shapes of the figures from the scope of copyright protection. In this case, the changes to each god of wealth were neither important nor could be deemed to have extra creativity. Therefore, the goods at issue should be regarded as reproductions of the image of the gods of wealth at issue.
It was further pointed out in this Decision that distribution channels should not simply desire distribution profits from their scale of distribution while shielding themselves completely from embedded legal risks associated with their distribution model. When a distributor sells infringing goods supplied by a supplier, the distributor and the supplier shall be treated in the same manner (for acts of joint negligence) or the supplier shall be deemed the performance assistant of the distributor. If the supplier has inaccurately verified potential infringement of the sources of goods, the negligence shall be deemed the negligence of the distributor. A supplier is more familiar with the market condition for the goods so supplied. Negligence in verifying if goods so supplied infringe copyright is sufficient ground for concluding negligence.
Therefore, in this case, since the supplier (Defendant Company A) was negligent in verifying the calendars which had previously been sold by the Plaintiff and which contained the image of the gods of wealth at issue, Company A should be deemed at fault. The distributors, namely Defendants Company B, Company C and Company D, should be found jointly and severally liable for the distribution of the goods at issue. Therefore, the Decision was rendered against the Defendants.
Jane Tsai
The Intellectual Property Court rendered the 106-Min-Zhu-Su-41 Civil Decision of March 19, 2018 (hereinafter, the "Decision"), holding that if the individual figures in a single image all have vivid styles, they are all individually copyrightable.
According to the facts underlying this Decision, the Plaintiff filed a complaint alleging that he had paid and commissioned another person to design the image of the gods of wealth at issue, had obtained its copyright and had published calendar products using the image of the gods of wealth at issue several times after 2010. However, he found that Defendant Company A had adapted the image of the gods of wealth at issue without authorization and had launched the goods at issue on such basis for sale by distributors such as Defendants Company B, Company C and Company D. Therefore, a complaint was filed to seek joint and several damages from the Defendants.
According to the Decision, if the image of the gods of wealth is directly compared with the goods at issue in their entirety, since the five gods of wealth in the image of the gods of wealth at issue were depicted in gold backing paper with additional elements in cardboard paper such as words like "Wealth Attracting Money" and "Fortune Spell" in the design, the overall differences could be obviously felt. However, if the image of the gods of wealth at issue and the image of each god of wealth depicted on the goods at issue are compared, it can be concluded that the facial expressions, the styles of five sensory organs (including beards), the objects held in hands, bodies and costumes, and belts were highly similar in all kinds of details and the overall look and feel. Therefore, it could be concluded that they were substantively similar.
It was further pointed out in this Decision that since the image of the gods of wealth at issue should be an artistic work, it would generally be more fair and objective to make an overall comparison. In this case, however, since the five gods of wealth in the image of gods of wealth at issue all have vivid styles as figures with separately depicted creative images in the image of the gods of wealth at issue, they should be regarded as images of individual gods of wealth with each image protectable under the Copyright Law. The purpose is to prevent the scenario where another person can create differences in the overall look and feel simply by making unimportant adjustments to the overall arrangement and position of each individual god of wealth to exclude the creator's efforts to create the individual shapes of the figures from the scope of copyright protection. In this case, the changes to each god of wealth were neither important nor could be deemed to have extra creativity. Therefore, the goods at issue should be regarded as reproductions of the image of the gods of wealth at issue.
It was further pointed out in this Decision that distribution channels should not simply desire distribution profits from their scale of distribution while shielding themselves completely from embedded legal risks associated with their distribution model. When a distributor sells infringing goods supplied by a supplier, the distributor and the supplier shall be treated in the same manner (for acts of joint negligence) or the supplier shall be deemed the performance assistant of the distributor. If the supplier has inaccurately verified potential infringement of the sources of goods, the negligence shall be deemed the negligence of the distributor. A supplier is more familiar with the market condition for the goods so supplied. Negligence in verifying if goods so supplied infringe copyright is sufficient ground for concluding negligence.
Therefore, in this case, since the supplier (Defendant Company A) was negligent in verifying the calendars which had previously been sold by the Plaintiff and which contained the image of the gods of wealth at issue, Company A should be deemed at fault. The distributors, namely Defendants Company B, Company C and Company D, should be found jointly and severally liable for the distribution of the goods at issue. Therefore, the Decision was rendered against the Defendants.
