Case 9  Dispute over infringement of copyright of “music fountain” works

[Basic Information]

Case No.: (2016) Beijing 0108 Civil First Instance No. 15322

(2017) Beijing 73 Civil Final Instance No. 1404

Plaintiff: Beijing Zhongke Shuijing Technology Co., Ltd.

Defendant: Beijing Zhongke Hengye Zhongzi Technology Co., Ltd.

Defendant: Lakeside Management Office of Hangzhou West Lake Scenic Area

[Case Brief]

Beijing Zhongke Shuijing Technology Co., Ltd. (hereinafter referred to as “Zhongke Shuijing”) claimed that it enjoyed copyright of fountain arrangements of music Beauty Overthrowing States and Cities and Streets Where Wind Lives of Qingdao International Horticultural Exposition (hereinafter referred to as “QIHE”) Music Fountain, and believed that the Lakeside Management Office of Hangzhou West Lake Scenic Area (hereinafter referred to as “West Lake Management Office”), which obtained videos and design drawings materials including the disputed works from Zhongke Shuijing in the name of investigation and handed such materials to Beijing Zhongke Hengye Zhongzi Technology Co., Ltd. (hereinafter referred to as “Zhongke Hengye”), and Zhongke Hengye, which plagiarized the disputed music fountain arrangements and constructed and played the fountain arrangement in the West Lake, infringed the copyright of Zhongke Shuijing. Therefore, Zhongke Shuijing sued to the court, requested the court to order Zhongke Hengye and West Lake Management Office to cease infringement, offer an apology, and compensate RMB 200,000 yuan for economic loss and RMB 80,000 yuan for reasonable expenditure. The court of first instance held that the object to be protected in music fountain works was the spouting show effect formed by the fountain in combination with certain music. Although the Copyright Law did not have the category of music fountain works or music fountain arrangement works, yet such works had originality themselves and shall be protected by the Copyright Law. Considering that Zhongke Hengye and West Lake Management Office had access to relevant fountain videos and materials of Zhongke Shuijing, and the spouting effect of relevant arrangements in the music fountain of West Lake constituted substantial similarity with the fountain music works for which Zhongke Shuijing enjoyed the copyright, therefore the two defendants constituted infringement of copyright. Accordingly, the court of first instance made a judgment to order Zhongke Hengye and West Lake Management Office to cease infringement, openly apologize, and compensate a total of RMB 90,000 yuan for economic loss and reasonable expenditure. The two defendants were dissatisfied with the judgment and appealed. The court of second instance held that the right carrier protected by the disputed request may be referred to as the presentation of spouting effect of the disputed music fountain; as the object at issue was an artistic and aesthetic expression showed by selection and arrangement of combination of water type, change of lighting and color and musical emotion, and met the requirement of “replicability”, thus conformed to the general constitutive elements of works. As the object at issue was a dynamic three-dimensional expression composed of various elements including lighting, color, music and water type, the expression of its beautiful spouting effect had aesthetic significance and conformed to the constitutive elements of fine art works. From the perspective of value interpretation, the interpretation of law shall adapt to the development of science and technology and keep pace with the time. Determination of the object at issue as belonging to the protection scope of fine art works was conducive to encouraging innovation in the expression form of beauty as well as creation of fountain-related works. On such basis, the court of second instance also confirmed the determination of the judgment of first instance on ownership of copyright of the works at issue, infringement of copyrights by Zhongke Hengye and West Lake Management Office, and the bearing of liabilities. Accordingly, the court of second instance rejected the appeal and affirmed the original judgment.

[Comments]

With the development of science and technology, forms of visual aesthetic expression present a diversified trend. Whether an original expression that is aesthetic, appreciable yet does not belong to any category of works explicitly provided by the law may constitute a work brought about discussions on the ordinal relation between the determination of works and the judgment of legal categories of works. The difficulty as well as typical significance of this case lied in the way to, under the premise of conforming to the logic of law, properly handle the relation between respecting existing provisions of law and protecting intellectual innovation achievements. The second-instance judgment of this case solved the above problem by properly interpreting and applying Article 3 of the Copyright Law and Article 2 of the Regulation for the Implementation of the Copyright Law. On one hand, the presentation of the spouting effect of the music fountain at issue was an artistic and aesthetic expression well-designed and displayed by designers with science and technology factors including sound, lighting and electricity, thus conformed to the general constitutive elements of works; on the other hand, the second-instance judgment interpreted relevant provisions by ways of literary content interpretation and value interpretation, and held that the presentation of the spouting effect of the disputed music fountain was a dynamic three-dimensional expression composed of various elements including lighting, color, music and water type, and such beautiful spouting effect obviously had aesthetic significance and conformed to the constitutive elements of fine art works, hence belonged to the protection scope of fine art works. The judgment of second instance not only reflected the judge’s respect for the legislator’s unambiguous expression of meaning in the provisions of law, but also fully demonstrated the judge’s professional skill to scientifically interpret the law and convince people by reasoning, therefore had been widely praised by the industry.

photo from: coolzou.com