Trial procedure: first instance
Case classification: intellectual property rights
WeChat official account:
Name of Judgment Document: (2004) Wu Zhi Zi Chu No.205
Type of judgment document: civil judgment
Referee's time: March 2, 20051day
Court of acceptance: Wuhan Intermediate People's Court.
Full text of the case:
Plaintiff Guangzhou New Times Audio & Video Company v. Defendant Wuhan Tianyu Entertainment Co., Ltd.
Wuhan Intermediate People's Court
paper of civil judgment
(2004) Wu Zhi Zi Chu No.205
Guangzhou New Times Audio & Video Company, the plaintiff, is located at No.5 Yaoquan New Street, Guanghua Second Road, Guangzhou City, Guangdong Province.
Legal Representative: Li Qiang, general manager.
Authorized Agent: Qiu Qixiong, lawyer of Hubei Chufeng Dehao Law Firm.
Authorized Agent: Lu Jing, lawyer of Hubei Chufeng Dehao Law Firm.
Defendant Wuhan Tianyu Entertainment Co., Ltd., whose domicile is No.224, Wu Luo Road, Wuchang District, Wuhan City, Hubei Province.
Legal Representative: Lu, board chairman.
Authorized Agent: Tang Hongqi, lawyer of Hubei Tianyuan Brothers Law Firm.
Our hospital accepted the case of the plaintiff Guangzhou New Times Audio & Video Company (hereinafter referred to as New Times Company) v. wuhan heaven and earth Entertainment Co., Ltd. (hereinafter referred to as Tiandi Company) on the copyright infringement dispute of MTV works. According to the law, the judge is the presiding judge, and Xu and Fu Jianqing, the acting judge, form a collegial panel, which held a public hearing on June 24, 2005. Qiu Qixiong and Lu Jing, the entrusted agents of the plaintiff New Times Company, and Tang Hongqing, the entrusted agent of the defendant Tiandi Company, attended the lawsuit in court. The case has now been closed.
The plaintiff New Times Company claims that on July 17, 2004, in Room 3026 of Tiandi Entertainment City operated by the defendant (located on the 3rd floor of Xindadi Hotel, Wuluo Road, Wuchang District, Wuhan City), the plaintiff found that the defendant played MTV music works with copyright to the public through karaoke. These MTV works are: Mao Ning Sang 1, Late Autumn; 2, "Heart Rain". As the obligee of the above works, the plaintiff has never allowed the defendant to use his works in the above way. The defendant showed the plaintiff's works without permission, which seriously violated the plaintiff's rights and interests and caused great economic losses to the plaintiff. Therefore, the plaintiff New Times Company requests: 1. The defendant immediately stopped infringing on the right to play the MTV music works involved in which the plaintiff enjoyed copyright, and no longer publicly played the above-mentioned works for which the plaintiff enjoyed copyright; 2. The defendant issued a statement in a national newspaper, publicly apologizing to the plaintiff to eliminate the influence; 3. The defendant compensated the plaintiff for economic losses of 100000 yuan; All litigation costs in this case shall be borne by the defendant.
The plaintiff, New Times Company, submitted four pieces of evidence to prove its claim.
Evidence 1, MTV- VCD boxed CD of Late Autumn Mao Ning and a copy of the cover of the CD, which prove that the plaintiff is the copyright owner of the MTV tracks in the CD; Evidence 2: Certificate of China Audio-visual Association, which proves that the plaintiff enjoys the copyright of the music works involved; Evidence 3: Notary Certificate (2004) Wuqing Zhengzi No.3075 of Qingshan District Notary Office in Wuhan City, Hubei Province and the CD-ROM burned by the plaintiff for obtaining evidence, which prove that the defendant has infringed the plaintiff's copyright; Evidence 4. The business license of the plaintiff's enterprise as a legal person, which proves the plaintiff's qualification as a litigation subject.
The defendant Tiandi Company argued orally in the trial that, firstly, judging from the evidence submitted by the plaintiff, the plaintiff was only the producer of VCD music CDs, not the copyright owner of MTV music and television albums involved, and the plaintiff accused the defendant of violating his right to show. Second, in the course of business, the defendant only played the above-mentioned music and TV tracks at the request of the guests, and did not take music as the business object. Therefore, the defendant's above-mentioned behavior is not profitable, and the plaintiff thinks that the defendant infringed the copyright of his MTV music works and caused its economic losses, which is inconsistent with the facts; 3. The defendant legally purchased the MTV- Late Autumn Mao Ning album on June 38, 2004, and it has not been used for a long time. The company's business scale is not large, so there is no legal basis for the plaintiff to demand the defendant to compensate for the economic loss of 100000 yuan. Therefore, the defendant Tiandi Company requested to dismiss the plaintiff's claim.
The defendant Tiandi Company submitted three pieces of evidence to our court to support its defense claim.
Evidence 1 and Hubei commercial retail invoice, which prove that the defendant purchased MTV "Late Autumn Mao Ning Music and Television Album" on June 35438+1October 3, 2004; Evidence 2: Pay the bill, which proves that the plaintiff's agent spent the amount and content at the defendant's place, and the defendant did not charge the plaintiff's agent for the required related songs and tracks during the consumption process; Evidence 3: A copy of Beijing Evening News, which proves that the defendant's compensation amount is too high.
On June 5438+065438+ 10/0, 2004, our hospital organized evidence exchange and cross-examination.
(1) The plaintiff New Times Company has no objection to the authenticity of the three pieces of evidence submitted by the defendant Tiandi Company, but thinks that the evidence submitted by the defendant 1 and the evidence 2 are not directly related to this case.
(2) The defendant Tiandi Company has no objection to the authenticity of the evidence 1, evidence 2 and evidence 4 submitted by the plaintiff; Objection to evidence 3. Evidence 3 submitted by the plaintiff, namely Notary Certificate (2004) Wuqing Zhengzi No.3075 of Qingshan District Notary Office, Wuhan City, Hubei Province, was recognized as notarization by the defendant in the absence of the defendant's staff, and its authenticity was not recognized.
The above evidence has been cross-examined by both parties and recognized by both parties, and confirmed by our hospital. Evidence inconsistent with the opinions of the parties is identified as follows:
(1) Evidence 3 submitted by the plaintiff, that is, the notarial certificate submitted by the plaintiff. Upon examination, our hospital holds that the notarial certificate ([2004] Wuqing Zhengzi No.3075) issued by the Notary Office of Qingshan District, Wuhan City, Hubei Province is accompanied by the notarial record of the Notary Office and four copies of the Uniform Invoice for Quota of Catering and Entertainment Industry in Wuhan City stamped with the defendant's official seal. The defendant does not deny the notarized transcripts and invoices, so the evidence can prove the authenticity of the notarization behavior of the notary office. According to the second paragraph of Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes and the third paragraph of Article 65 and Article 68 of Several Provisions on Evidence in Civil Proceedings, our court recognizes the probative force of Evidence 3 submitted by the plaintiff.
(2) As for the evidence 1 submitted by the defendant, that is, the purchase invoice and evidence 2, that is, the consumption receipt, the defendant submitted this evidence to prove the circumstances of infringement and the amount of compensation. This evidence is a refutation of the plaintiff's litigation reasons and claims, so it is relevant to this case. This evidence was recognized by our hospital.
It was found through trial that the plaintiff, New Times Company, completed the creation of MTV- Late Autumn Mao Ning Music Television on 1996, and made it into VCD and DVD music albums of the same name. MTV- Late Autumn Mao Ning's boxed VCD and DVD contain 25 MTV songs sung by Mao Ning, including two MTV tracks, Late Autumn and Heart Rain. The VCD and DVD of MTV- Mao Ning in late autumn are all stamped with the plaintiff's New Era logo, and published under the signature of Guangzhou New Era Audio & Video Company with the publication number ISRCCN-F 21-96-335-00-V.J6.
On July 15, 2004, the plaintiff entrusted his agent, Liao, and found that the defendant had played two songs, Late Autumn and Heart Rain, by Mao Ning to the public without permission in Room 3026 of his business premises, and applied to the Notary Office of Qingshan District, Wuhan City, Hubei Province for evidence preservation. On July 17 of the same year, Liao, under the supervision of Yang and the staff of the Notary Office of Qingshan District, Wuhan City, Hubei Province, went to Room KTV-3026, Tiandi Hotel, 3rd floor, No.334 Wu Luo Road, Wuchang District, Wuhan City, Hubei Province, and as an ordinary consumer, Liao requested 18 songs such as Late Autumn and Heart Rain to get the cover. Afterwards, the notary office made a notarial certificate and (2004) Qingwu Zhengzi No.3075 notarial certificate, and made the video materials into CDs.
On September 9, 2004, China Audiovisual Association issued a written certificate to Beijing Yingke Law Firm, the agent entrusted by the plaintiff New Times Company. This certificate states that there are 25 works of MTV- Late Autumn Mao Ning published by Guangzhou New Era Audio & Video Company, with the publication number of ISRCCN-F 21-96-335-00-V.J6, and all the music videos and videos contained therein are produced by Guangzhou New Era Audio & Video Company, and all the relevant copyrights are owned by Guangzhou New Era Audio & Video Company.
Defendant Tiandi Company was approved and registered by Wuhan Administration for Industry and Commerce on1August 2, 998, and obtained the Business License of Enterprise as a Legal Person. Its business scope is sauna and song and dance. On June 38, 2004+10/October 3, the defendant purchased the boxed CD of MTV- Late Autumn Mao Ning album.
We also found out that the VCD disc of MTV- Mao Ning in late autumn involved in the case showed the plaintiff's signature "Guangzhou New Times Audio and Video Company" on the screen before the official program was broadcast; During the broadcast of official programs, dynamic "new era" patterns and signs will be displayed on the screen at regular intervals.
During the trial of this case in our court, the plaintiff New Times Company provided relevant effective civil judgments. According to the judgment, on June 4, 2003, the International Federation of the Phonographic Industry (Hong Kong Club) Limited issued the following certificate: when the member companies of the Federation provide limited commercial use of MTV tracks created by Hong Kong pop singers in karaoke and other entertainment places in Hong Kong, the usual way is a one-time license, the service period varies from 1-3 months, and the charge for each MTV track is also HK$. After that, members' MTV tracks can only be used in places authorized by members.
We believe that MTV is music TV, which takes certain vocal music and instrumental music works as the theme images, carries out visual creative design according to the different characteristics of music genres and poetic images, establishes the form, type characteristics and situational atmosphere of the spatial image of the works, and integrates the pictures and music in time and space movement to form a distinct and harmonious audio-visual structure. This TV art genre combining sound and picture makes full use of various modeling factors such as light, color, composition and action, and uses electronic editing, three-dimensional animation and digital editing system as production means to construct a multi-dimensional space-time theme picture. The music picture, creative conception, creative design and creative method of MTV are the reproduction and reproduction of music works and their combinations by the creators. The creative process of MTV music TV and the expression form of music theme condense the wisdom and labor of the creators, which is a breakthrough creative activity. Therefore, MTV is artistic, sensitive and creative, and has the legal characteristics of "works" as stipulated in the Copyright Law of People's Republic of China (PRC), so it should be recognized as works.
MTV music and television works can be used for karaoke, KTV and other entertainment, which is different from audio-visual products. Article 5 (2) and (3) of the Regulations for the Implementation of the Copyright Law of People's Republic of China (PRC) stipulates that sound recordings refer to sound recordings of performances or other sounds; Video products refer to any continuous recording of related images and images with or without sound except film works and works created by methods similar to filming, and are characterized in that audio-visual products are faithful records of the photographed object by audio-visual producers through certain equipment, that is, simple reproduction and reproduction of the photographed object, its creative design and main ideas, and its creative process does not break through the original creativity of the photographed object, but the original reproduction of the photographed object is not original. Item (11) of Article 4 of the Regulations for the Implementation of the Copyright Law of People's Republic of China (PRC) stipulates that cinematographic works and works created by similar cinematographic shooting methods refer to works that are shot on a certain medium and consist of a series of pictures with or without sound, and are projected by appropriate devices or disseminated by other means. The main characteristics of works created by methods similar to film shooting are: not only copying and reappearing the photographed object, but also reflecting the processing, arrangement, design and innovation of the photographed object by the creator, adding the creative intention and conceptual design of the creator. Compared with audio-visual products, MTV music TV is a new breakthrough in audio-visual products and a process of re-creation. Therefore, MTV works belong to a new music genre. another
The MTV-Late Autumn Mao Ning music TV album involved in the case, from the picture content, the MTV-Late Autumn Mao Ning picture consists of dynamic and static scenes such as singing, character performance, background picture, lyrics subtitles and music accompaniment, which highlights the theme of related music; From the perspective of production methods, the creativity and design of its dynamic and static scenes are based on certain vocal and instrumental works, and visual innovation is carried out based on different music genres and lyrics, so as to establish the spatial form, genre characteristics and background atmosphere of the works, so that the picture and music can be integrated; From the production process, the audiovisual structure of MTV- Mao Ning in late autumn includes technical creation activities such as directing, shooting, performing, editing, costume, lighting, performance, design and synthesis. From the way of communication, MTV- Mao Ning in Late Autumn reappeared the artistic conception of the work and the creative intention of the producer with the help of suitable projection equipment and installation system with corresponding functions. Therefore, from the perspective of creative methods, the MTV- Late Autumn Mao Ning involved in the case should be regarded as a work created in a way similar to film production, rather than a simple audio-visual product.
The cover signature and logo of MTV- Late Autumn Mao Ning boxed CD are the plaintiff New Times Company; The signer and logo displayed in the process of playing the contents of the CD screen are only plaintiff New Times Company; The China Audio-Visual Association issued a certificate saying that the MTV—— involved-"Late Autumn Mao Ning" music and television works were created by the plaintiff New Times Company; And the defendant Tiandi Company did not provide evidence to the contrary to prove that the work was not created by the plaintiff.
Based on the above factors, according to Article 15 of the Copyright Law of People's Republic of China (PRC), it can be concluded that the plaintiff New Times Company is the producer of MTV's Late Autumn Mao Ning and enjoys the copyright of this work according to law.
According to the business scope approved by the administrative department for industry and commerce for the Business License of Enterprise Legal Person of the defendant Tiandi Company, the defendant is qualified to operate KTV projects. The notarial certificate made by the Notary Office of Qingshan District, Wuhan City, Hubei Province according to the plaintiff's application for evidence preservation and the CD-ROM evidence of the plaintiff's evidence collection process show that the defendant has the equipment and devices to play MTV music TV programs and has the conditions to play MTV music TV to unspecified consumers. The evidence also shows that the defendant not only provides consumers with consumption items such as catering, food, tobacco and alcohol, but also provides consumers with supporting services such as private room service, special space enjoyment service and background environment consumption. The defendant's business mode is to bundle the private room environment mainly built by MTV MTV with the catering products operated by defendant Tiandi Company and other consumer goods provided to consumers. It is precisely because the defendant provides MTV music and television environmental consumption projects that its consumption place will attract unspecified consumer groups to enjoy comfortable service consumption. The defendant's provision of MTV music TV to consumers is conducive to enhancing the defendant's competitiveness, and its behavior belongs to commercial promotion, so the defendant's provision of MTV music TV consumption to consumers has commercial purposes.
As mentioned above, the plaintiff, New Times Company, is the copyright owner of the MTV involved in the case, Late Autumn Mao Ning, and enjoys the right to show the MTV works according to law. The plaintiff New Times Company did not allow the defendant to use the works of MTV- Late Autumn Mao Ning for commercial purposes; The defendant has no evidence to prove that the use of the work is approved and licensed by the plaintiff, nor can it show that there are legal reasons for playing the work to consumers.
Therefore, the defendant Tiandi Company broadcasted two TV music tracks of MTV- Late Autumn-Mao Ning to the public by karaoke without the plaintiff's permission, which infringed the plaintiff's right to broadcast MTV- music TV works, so the plaintiff's claim was established.
On the amount of compensation for economic losses of plaintiff New Era Company. In the lawsuit, the plaintiff provided relevant evidence, demanding to calculate its economic loss according to the standard of 50,000 yuan per song, because the standard was formulated by the relevant departments in Hong Kong and was applicable to entertainment places in Hong Kong, and the evidence was not directly related to the disputed facts in this case, and the defendant purchased and used the MTV music video disc involved on June 38, 2004+10. Therefore, our court does not support the plaintiff's above claims; At the request of consumers, the defendant played the MTV TV music works involved in the case in his business premises, and his playing behavior was tied up with other consumption behaviors, so the defendant's profit amount could not be calculated. Therefore, for the economic losses of the plaintiff New Era Company in this case, our hospital will compensate the defendant according to the way of infringement, location, duration, business scale and subjective infringement of the defendant.
Regarding the plaintiff's New Era Company's request for the defendant Tiandi Company to issue an apology statement in a national newspaper, our court does not support it because the screening right is the property right of the copyright in the MTV music and television works of the plaintiff's New Era Company and does not involve the plaintiff's identity right.
After deliberation by the collegial panel, according to the provisions of Article 128 of the Civil Procedure Law of People's Republic of China (PRC), Items (10) and (2) of Article 10, Item (1) of Article 47 and Item (2) of Article 48 of the Copyright Law of People's Republic of China (PRC), the verdict of this case is as follows:
1. The defendant Wuhan Tianyu Entertainment Co., Ltd. immediately stopped infringing on the screening rights of two MTV works "Late Autumn" and "Heart Rain" enjoyed by Guangzhou New Times Audio & Video Company as of the effective date of this judgment;
2. The defendant Wuhan Tianyu Entertainment Co., Ltd. shall compensate the plaintiff Guangzhou New Age Audio & Video Company for its economic loss 16000 yuan within ten days after this judgment comes into effect;
Three. Other claims of Guangzhou New Times Audio & Video Company, the plaintiff, were rejected.
The acceptance fee of this case is 3,565,438 yuan, which shall be borne by Guangzhou New Times Audio & Video Company, the plaintiff, 702 yuan. Defendant Wuhan Tianyu Entertainment Co., Ltd. bears 2808 yuan.
If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties to appeal to the Hubei Higher People's Court. The appellant shall pay an appeal acceptance fee of RMB 3,565,438+00 in advance when submitting the appeal, and remit the money to the Higher People's Court of Hubei Province. The account was opened by Dadongmen Sub-branch of Wuchang Branch of Agricultural Bank of China, and the account name was special account for extra-budgetary funds of Hubei Provincial Department of Finance, with account number 03050 1040003445 and clearing bank number 838 188. If the appellant fails to pay the legal fees in advance within seven days after the expiration of the appeal period, it shall be deemed to have withdrawn the appeal automatically.
Presiding judge Yin Wei
Judge Xu
Acting Judge Fu Jianqing
Press release issued on 2 1 March 2005
Bookkeeper Xu Lei