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Liangshan good men wear men's wear brand men's joint and several liability
Recently, Haidian District People's Court concluded the copyright infringement case of Chinese painter Ye Xiong's "Water Margin 108" and ordered the defendant Fujian Septwolves Industrial Co., Ltd. (hereinafter referred to as "Septwolves"), Xiamen Grand Canyon Television Co., Ltd. (hereinafter referred to as the "Grand Canyon Company") apologized to Ye Xiong for making a public apology. Grand Canyon Company paid Ye Xiong 100,000 yuan and Seventies Wolf Company took joint and several liability for the 43,000 yuan. Accidentally discovered the work was infringing seven wolves company to build seven wolves clothing brand, commissioned the Grand Canyon company creation "hero" animation New Year's film ads, and during the Spring Festival in 2008 on a set of CCTV broadcast. The advertisement uses a total of 26 characters in Water Margin drawn by Ye Xiong. Among them, 12 characters wear seven wolves' clothes and most of the rest have also changed their hand-held items and colors. Yeh Hsiien accidentally discovered the advertisement, that the behavior of the seven wolves infringed its copyright, the Grand Canyon company involved in advertising as a producer, and seven wolves constitute a joint infringement company, requiring seven wolves and Grand Canyon companies to apologize to their public compensation, with the joint compensation for economic losses And a reasonable total expenditure of 300,000 yuan. Judicial Opinion of the Court After trial, the court held that Ye Xiong enjoys the copyright of the portrait of "Water Margin 108", and the advertisements involved in the film constitute a substantive similarity with Ye Xiong's works. Although Grand Canyon denied that its use of avatars of "hero" belonged to the substantive part of the image of advertising characters, the avatars played a decisive role in the model-based advertisements, lacking avatars and making it difficult for them to become model models. Grand Canyon, a producer of commercial advertisements, used Ye Xiong's art works without permission and arbitrarily revised the character images of Ye Xiong's works, and also made Twelve Water Margin characters wear seven-wolf costumes and distorted the figure characters in Ye Xiong's works , Violated Yexiong's right to reproduce the work, modify the rights and protect the integrity of the work. Septwolves, as an advertiser, did not censor advertisers with the Grand Canyon Company without using a dozen or so "gossip" characters dressed in Septwolves clothing without censoring advertisers independently of the Grand Canyon Company Yexiong's copyright. Advertising use of other works, whether the main advertising infringement of copyright of others? It can be seen from the case that the alleged infringement in advertising infringement involves three parties: the advertiser refers to a legal person, other economic organization or individual who designs, produces or publishes advertisements for the promotion of goods or provision of services, that is, Seven wolves company; advertising operators, referring to commissioned to provide advertising design, production, agency services, legal persons, other economic organizations or individuals, the case of the Grand Canyon Company; Advertising publisher, referring to advertisers or advertisers commissioned by the advertising operators The legal persons or other economic organizations that publish advertisements, namely the CCTV of this case. Under normal circumstances, advertisers advertising the design, production, agency and other activities to sign the contract approach, by professional advertising business advertising agencies to handle and pay their remuneration. If the design elements of the infringing work in this case were not provided by Septwolves, but were collected and used by the advertising operators themselves, the Grand Canyon Company was unauthorized to use the works of others. Therefore, at this level, the copyright infringement of Yexiong Grand Canyon company rather than seven wolves. Of course, the failure of advertisers to carry out the unauthorized use of other people's works does not necessarily mean that they should not be infringed. Advertisers may still consider themselves faulty and infringe upon their rights to review infringing advertisements. Therefore, whether advertisers have the censorship duty on the advertising works and diligence, they have become the key to determine whether the infringement. According to Article 2, Paragraph 2 of the Guiding Opinions of Beijing Higher People's Court on Determining the Liability for Compensation for Damages in Copyright Infringement, the examination obligation of advertisers is limited to the examination obligations stipulated by laws, regulations and administrative rules and regulations. Therefore, I believe that the advertiser should not be overstated to review the obligations, if the agreement with the Grand Canyon company agreed to be independently created by the latter, and should be responsible for the copyright of the advertising works should only be held in the form of review obligations, And as long as it can prove that the obligation has been fulfilled, then the seven wolves should not be found infringing. It should be noted that, advertisers in the copyright owner's notice or to continue to use after the prosecution has obvious fault, can constitute infringement. In this case, CCTV, the publisher of the advertisement, was not listed as the defendant. In fact, the advertisers also had the same examination obligation as the advertisers on the advertisement works. If they did not perform the examination obligations, they might still be sued for infringement. However, it should be specially stated that Article 27 of the "Advertisement Law" stipulates that the advertisement publisher's obligation to review the advertisement work is an obligation to examine whether the advertisement content is false or not and does not involve any infringement on the copyright of others. Advertisers of the legal risk prevention Advertisers in the production of advertisements, the need for the use of other people's work, should obtain the permission of the copyright owner and then use to avoid infringement; advertisers and advertisers, in addition to the agreement Agreed "advertising agencies to provide their own advertising works for their own creation, if the infringement of the legitimate rights and interests of any third party caused by the legal responsibility of the ad operator," should be further agreed, "the scope of compensation, including but not limited to infringement caused Of the total compensation liability, to deal with the infringement of the necessary expenses and advertisers do not pay the above fees in time to cause advertisers or advertisers through legal channels to solve the expenses of legal fees, travel expenses, litigation fees or arbitration fees. " In this way, once the legal risks appear, adverse consequences are borne by the advertising operators, which not only helps strengthen the awareness of liability and legal risks of the advertising operators, but also helps to prevent the legal risks of advertisers and advertisers.