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Guiding Case No. 81 of the Supreme People's Court: Zhang Xiaoyan v. Lei Xianhe, Zhao Qi, and Shandong Aishuren DVDs & Books Co., Ltd. (Case about dispute over infringement upon copyright)
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指导案例81号：张晓燕诉雷献和、赵琪、山东爱书人音像图书有限公司著作权侵权纠纷案
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| Guiding Case No. 81 of the Supreme People's Court: Zhang Xiaoyan v. Lei Xianhe, Zhao Qi, and Shandong Aishuren DVDs & Books Co., Ltd. | | 指导案例81号：张晓燕诉雷献和、赵琪、山东爱书人音像图书有限公司著作权侵权纠纷案 |
| (Issued on March 6, 2017 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) | | （最高人民法院审判委员会讨论通过 2017年3月6日发布） |
| Keywords | | 【关键词】 |
| civil; infringement upon copyright; films and television programs; historical theme; substantial similarity | | 民事/著作权侵权/影视作品/历史题材/实质相似 |
| Key Points of Judgment | | 【裁判要点】 |
| 1. The theme mainline and the overall sequence of clues in a work created on the basis of the same historical theme is the common treasure of the society, which is within the scope of ideas and cannot be monopolized by any individual. Any person has the right to create a work by using such theme. | | 1.根据同一历史题材创作的作品中的题材主线、整体线索脉络，是社会共同财富，属于思想范畴，不能为个别人垄断，任何人都有权对此类题材加以利用并创作作品。 |
| 2. Whether a work constitutes infringement shall be judged from such aspects as whether the author of the alleged infringing work has come into contact with the work of the copyright holder and whether the alleged infringing work and the work of the copyright holder constitute substantial similarity. To judge whether substantial similarity is constituted, comparisons shall be made on whether acceptance or rejection, choices, arrangements, and designs in the works are identical or similar other than comparisons in aspects of ideas, emotions, originality, and objects. | | 2.判断作品是否构成侵权，应当从被诉侵权作品作者是否接触过权利人作品、被诉侵权作品与权利人作品之间是否构成实质相似等方面进行。在判断是否构成实质相似时，应比较作者在作品表达中的取舍、选择、安排、设计等是否相同或相似，不应从思想、情感、创意、对象等方面进行比较。 |
| 3. In accordance with the provisions of the Copyright Law on the protection of works, a people's court shall protect the author's expressions with originality, namely, expression forms of ideas or emotions. Creative ideas, materials, information in public domains, creation forms, necessary scenes as well as unique or limited expression forms shall not be protected. | | 3.按照著作权法保护作品的规定，人民法院应保护作者具有独创性的表达，即思想或情感的表现形式。对创意、素材、公有领域信息、创作形式、必要场景，以及具有唯一性或有限性的表达形式，则不予保护。 |
| Legal Provisions | | 【相关法条】 |
| Article 2 of the Copyright Law of the People's Republic of China | | 《中华人民共和国著作权法》第2条 |
| Article 2 of the Regulation on the Implementation of the Copyright Law of the People's Republic of China | | 《中华人民共和国著作权法实施条例》第2条 |
| Basic Facts | | 【基本案情】 |
| Plaintiff Zhang Xiaoyan alleged that: In December 1999, she started to adapt and create the script of A Cavalry Troop on the Plateau; in August 2000, the 20-episode TV series, A Cavalry Troop on the Plateau, was prepared to be shot according to this script (the script and the TV series hereinafter referred to “Zhang's script”); and in December 2000, the shooting of the TV series was completed, in which Zhang Xiaoyan was the copyright holder. Defendant Lei Xianhe participated in the shooting of this TV series as the honorary producer of A Cavalry Troop on the Plateau. Lei Xianhe (as the first script writer and producer) and defendant Zhao Qi (as the second script writer) shot a TV series, Last Cavalry, (the TV series and the script hereinafter referred to as “Lei's script”). On July 1, 2009, Zhang Xiaoyan bought the DVDs of Last Cavalry from defendant Shandong Aishuren DVDs & Books Co., Ltd. (hereinafter referred to as “Aishuren Company”) and found that there were many similarities between Last Cavalry and her script. The relationship between major characters, the plots, and other aspects were identical or similar and Lei's script constituted infringement upon Zhang's script and TV series. Therefore, Zhang Xiaoyan requested the court to order that the three defendants should cease the infringement; Lei Xianhe should publicly make a statement on extending a formal apology to Zhang Xiaoyan on Qilu Evening News and pay Zhang Xiaoyan a total of CNY800,000 as compensation for loss of remuneration to Zhang's script and script publication, and distribution and adaptation of the script. | | 原告张晓燕诉称：其于1999年12月开始改编创作《高原骑兵连》剧本，2000年8月根据该剧本筹拍20集电视连续剧《高原骑兵连》（以下将该剧本及其电视剧简称“张剧”），2000年12月该剧摄制完成，张晓燕系该剧著作权人。被告雷献和作为《高原骑兵连》的名誉制片人参与了该剧的摄制。被告雷献和作为第一编剧和制片人、被告赵琪作为第二编剧拍摄了电视剧《最后的骑兵》（以下将该电视剧及其剧本简称“雷剧”）。2009年7月1日，张晓燕从被告山东爱书人音像图书有限公司购得《最后的骑兵》DVD光盘，发现与“张剧”有很多雷同之处，主要人物关系、故事情节及其他方面相同或近似，“雷剧”对“张剧”剧本及电视剧构成侵权。故请求法院判令：三被告停止侵权，雷献和在《齐鲁晚报》上公开发表致歉声明并赔偿张晓燕剧本稿酬损失、剧本出版发行及改编费损失共计80万元。 |
| Defendant Lei Xianhe contended that: Zhang's script was adapted according to Zhang Guanlin's full-length novel, Snow Land and Headwaters. Lei's script was originally adapted according to Shi Yonggang's full-length novel, Boundless Sky. Afterwards, Zhao Qi rewrote the script by reference with Shi Yonggang's novel, Traveling to the End of the World by Riding and Carrying a Gun, and finalized the script. In the first half year of 2000, Zhang Xiaoyan met Lei Xianhe and proposed the cooperative shooting of a TV series reflecting lives of the cavalry soldiers. Lei Xianhe introduced the adaptation of the Boundless Sky and suggested the cooperative shooting, but Zhang Xiaoyan disagreed. In August 2000, Lei Xianhe and Zhang Xiaoyan concluded a cooperation agreement, which stipulated that Zhang Xiaoyan was responsible for the shooting and production, Lei Xianhe was responsible for military guarantee, and he did not participate in the artistic creation; however, Lei Xianhe did not see Zhang Xiaoyan's script. The creation and broadcast time points for Lei's script and Zhang's script were different and it was impossible that Lei's script affected the publication and broadcast of Zhang's script. | | 被告雷献和辩称：“张剧”剧本根据张冠林的长篇小说《雪域河源》改编而成，“雷剧”最初由雷献和根据师永刚的长篇小说《天苍茫》改编，后由赵琪参照其小说《骑马挎枪走天涯》重写剧本定稿。2000年上半年，张晓燕找到雷献和，提出合拍反映骑兵生活的电视剧。雷献和向张晓燕介绍了改编《天苍茫》的情况，建议合拍，张晓燕未同意。2000年8月，雷献和与张晓燕签订了合作协议，约定拍摄制作由张晓燕负责，雷献和负责军事保障，不参与艺术创作，雷献和没有看到张晓燕的剧本。“雷剧”和“张剧”创作播出的时间不同，“雷剧”不可能影响“张剧”的发行播出。 |
| After a trial, the court found that: Zhang's script, Lei's script, Traveling to the End of the World by Riding and Carrying a Gun, and Boundless Sky were military and historical works with the mainline of withdrawal (downsizing) of the cavalry in the army streamlining and reorganization in the middle 1980s. The short story, Traveling to the End of the World by Riding and Carrying a Gun, was published on the People's Liberation Army Literature and Art, Issue 12, 1996 (No. 512) and was published by the People's Liberation Army Literature and Art Press in April 2001; Zhang's script was broadcast on CCTV 8 in the morning session from May 17 to 21, 2004 at the rate of four episodes per day; and Lei's script was broadcast on CCTV 1 in the evening prime session from May 19 to 29, 2004 at the rate of two episodes per day. | | 法院经审理查明：“张剧”“雷剧”、《骑马挎枪走天涯》《天苍茫》，均系以二十世纪八十年代中期精简整编中骑兵部队撤（缩）编为主线展开的军旅、历史题材作品。短篇小说《骑马挎枪走天涯》发表于《解放军文艺》1996年第12期总第512期；长篇小说《天苍茫》于2001年4月由解放军文艺出版社出版发行；“张剧”于2004年5月17日至5月21日由中央电视台第八套节目在上午时段以每天四集的速度播出；“雷剧”于2004年5月19日至29日由中央电视台第一套节目在晚上黄金时段以每天两集的速度播出。 |
The Traveling to the End of the World by Riding and Carrying a Gun narrated the captains before and after the withdrawal of the cavalry, the political instructor, and a magic war-horse and described the glorious history of the cavalry, the withdrawal of the cavalry, and the obsession of officers and soldiers, especially the cavalry captain, in the cavalry and war-horses. The aforesaid novel described the mystery in the origin of the magic horse (No. 15 war-horse), complete harmony between the captain and the war horse, the character image of the political instructor Kong Yuehua, the poem-writing of the captain, the experience of his father as the regimental commander of the cavalry, the important role the cavalry would play in future wars, efforts made by the captain for reserving the cavalry, the final withdrawal of the cavalry, and the tragic results of the captain and the magic horse at the end. In Lei's script, the origin of the magic horse was also mysterious. Except that father of the captain Chang Wentian once served as the division commander of the cavalry, the aforesaid plots were basically similar to those of the Traveling to the End of the World by Riding and Carrying a Gun.
．．．．．． | | 《骑马挎枪走天涯》通过对骑兵连被撤销前后连长、指导员和一匹神骏的战马的描写，叙述了骑兵在历史上的辉煌、骑兵连被撤销、骑兵连官兵特别是骑兵连长对骑兵、战马的痴迷。《骑马挎枪走天涯》存在如下描述：神马（15号军马）出身来历中透着的神秘、连长与军马的水乳交融、指导员孔越华的人物形象、连长作诗、父亲当过骑兵团长、骑兵在未来战争中发挥的重要作用、连长为保留骑兵连所做的努力、骑兵连最后被撤销、结尾处连长与神马的悲壮。“雷剧”中天马的来历也透着神秘，除了连长常问天的父亲曾为骑兵师长外，上述情节内容与《骑马挎枪走天涯》基本相似。
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