"Calabash Brothers" wins second trial in copyright infringement case, Shanghai Animation Film Studio wins 500,000 yuan in compensation

Recently, Shanghai Animation Film Studio received the second-instance judgment of the Shanghai Intellectual Property Court on the two cases concerning the animations "Calabash Brothers" and "One Hundred Thousand Bad Jokes: Fulu" and the mobile game of the same name, which rejected the appeal of the defendant in the first instance and upheld the original judgment. So far, after more than two years of trial by the Shanghai Yangpu Court in the first instance and the Shanghai Intellectual Property Court in the second instance, the court fully supported the appeal of Shanghai Animation Film Studio.

Shanghai Animation Film Studio said: "'Calabash Brothers' is a popular animation work with wide popularity. Shanghai Animation Film Studio always respects artistic creation and hopes to give more respect to copyright and jointly build a more standardized and orderly market environment."

Original announcement from Shanghai Intellectual Property Court

The court pronounced a verdict on the copyright ownership and infringement dispute case between the appellants Beijing April Star Network Technology Co., Ltd., Tianjin Xianshan Cultural Communication Co., Ltd., Beijing Miaoquhengsheng Network Technology Co., Ltd., and Linekong Online (Beijing) Technology Co., Ltd. and the respondent Shanghai Animation Film Studio Co., Ltd. and the original defendant Shanghai Leshu Network Technology Co., Ltd., and upheld the first-instance judgment. April Star Company, Xianshan Company, Miaoqu Company, and Linekong Company should immediately stop infringing on the copyright of the Calabash Brothers cartoon art works of Shanghai Animation Film Studio, and jointly compensate Shanghai Animation Film Studio for economic losses of RMB 500,000 and reasonable expenses of RMB 19,500.

The animated series "Calabash Brothers" produced by Shanghai Shanghai Film Studio is very well-known. Shanghai Shanghai Film Studio enjoys all copyrights of the animated series "Calabash Brothers" and the art works of the Calabash Brothers cartoon characters therein except the right of authorship.

April Star Company, Xianshan Company and Chen Moumou, a person not involved in the case, signed a "Contract for Manuscript Fees" to obtain the copyright of the comic art work "One Hundred Thousand Bad Jokes". On June 1, 2013, April Star Company, Miaoqu Company and Blueport Company signed a "Cooperative Development and Operation Agreement". April Star Company, as the copyright owner of the comic and animation works "One Hundred Thousand Bad Jokes", agreed that Miaoqu Company would adapt "One Hundred Thousand Bad Jokes" into a mobile game, and Blueport Company would exclusively represent and operate the adapted game.

Shanghai Animation Film Studio believes that the character cards Da Wa, Er Wa, San Wa, Si Wa, Wu Wa, and Qi Wa in the mobile games "One Hundred Thousand Bad Jokes" and "One Hundred Thousand Bad Jokes TV Series" infringe the adaptation rights and information network dissemination rights of Shanghai Animation Film Studio's Calabash Brothers cartoon characters. April Star Company, Xianshan Company, Miaoqu Company, and Blueport Company jointly developed and operated the games involved in the case, "One Hundred Thousand Bad Jokes" and "One Hundred Thousand Bad Jokes TV Series", which constituted copyright infringement on Shanghai Animation Film Studio, so the court was sued, requesting that the four companies immediately stop the infringement, publish a statement, eliminate the impact, and the four companies and Leshu Company compensate Shanghai Animation Film Studio for economic losses of 5 million yuan.

April Starry Sky Company, Xianshan Company, Miaoqushi Company, and Blueport Company jointly argued that the six disputed cartoon characters in the game in question were six Fuluwa artworks for which April Starry Sky has the copyright. Fuluwa is a boy image with an anime style, which is different from the paper-cut style cartoon characters in the Calabash Brothers cartoon. The two have significant differences in head-to-body ratio, face shape, hairstyle and color, and facial features. The only similarity between Fuluwa and Calabash Brothers is their clothing. The gourd crown on the head, the apron around the waist, and the bare feet are designs that are derived from elements in the public domain. Fuluwa and Calabash Brothers do not constitute substantial similarity in the sense of copyright law, and therefore do not constitute copyright infringement.

The first instance court held that

The six Calabash Brothers in the cartoon Calabash Brothers are the basic images of the Calabash Brothers that the author outlined with lines and colors. They have the characteristics of bright eyes, strong and powerful, innocent and cute, reflecting the author's composition selection and painting skills. The Calabash Brothers cartoon images use lines, outlines, clothing and colors to form a specific and fixed expression of the Calabash Brothers character modeling. They are artistic, original and reproducible, and are works of art. The Shanghai Animation Film Studio is the copyright owner of the six Calabash Brothers cartoon character art works and has the right to prohibit others from infringing the copyright of the above works. Clothing and accessories are important components of character image characteristics. The six Fuluwa are the same as the six Calabash Brothers in the details of clothing and accessories, but the colors are different. It can be determined that the two are substantially similar.

The first instance court determined

The six Fuluwa artworks in the game involved are substantially similar to the six Calabash Brothers artworks in the Calabash Brothers cartoon, constituting copyright infringement. The first instance court ordered April Starry Sky, Xianshan, Miaoqu, and Blue Harbor to immediately stop infringing the copyright of the Calabash Brothers cartoon artworks of Shanghai Animation Film Studio; publish a statement to eliminate the impact; and April Starry Sky, Xianshan, Miaoqu, and Blue Harbor to jointly compensate Shanghai Animation Film Studio for economic losses of RMB 500,000 and reasonable expenses of RMB 19,500.

April Starry Sky Company, Xianshan Company, Miaoqushi Company and Blue Harbor Company were dissatisfied with the first-instance judgment and appealed to the Shanghai Intellectual Property Court.

After hearing the case, the Shanghai Intellectual Property Court held that the difference between the anime image of Fuluwa and the anime image of Calabash Brothers lies in the body part of the anime image, and the similarity between the two lies in the clothing part. The appellant claimed that the clothing of the Calabash Brothers anime image originated from the public domain and was not protected by copyright law, but he only provided evidence that individual elements of the Calabash Brothers clothing originated from the public domain, and failed to prove that before the creation of the Calabash Brothers anime image, there existed clothing that was substantially similar to the entire set of Calabash Brothers clothing. Fuluwa is a new work adapted from Calabash Brothers, and April Starry Sky Company infringed the adaptation rights of the Shanghai Animation Film Studio. April Starry Sky Company and Xianshan Company successively provided anime image authorization for the game involved in the case, Miaoqu Company developed the game involved in the case, and Blueport Company operated the game involved in the case, jointly infringing the information network dissemination rights of the Shanghai Animation Film Studio's works. The court of first instance comprehensively considered the fame and reputation of the works involved in the case of Shanghai Animation Film Studio, the licensing fees of the works of Shanghai Animation Film Studio, the subjective intention of the infringer, the duration and scope of the infringement, the proportion of the number of characters in the cartoon images involved in the game involved, and other factors, and determined the amount of compensation for economic losses to be 500,000 yuan at its discretion. The amount of compensation determined is within a reasonable range and is maintained. The appellants divided the work and cooperated to jointly commit the infringement, and should bear joint and several liability for compensation.