In recent years, following the huge commercial success of such variety shows as Where Are We Going, Dad?, The Voice of China, etc., a number of copycat programmes have sprung up in their wake, bringing with them a gradual increase in related lawsuits and disputes. For the holders of the rights in variety shows, how to better use the Copyright Law to enforce intellectual property (IP) rights and protect their commercial interests has become a pressing issue.
Nature of variety shows
“Variety show” is not a legal term but an industry term, whose connotation and denotation are not very clear cut. Accordingly, carrying out research and analysis of legal protection and asserting that variety shows can or cannot, should or should not be afforded copyright protection on this basis is a bit too hasty, and is of little aid in erecting an effective framework for the IP protection of variety shows.
Accordingly, with respect to the Copyright Law, such shows should be brought into the current Copyright Law framework based on their form of expression and degree of originality, with their circumstances analysed specifically. Only in this way can it be determined whether the entirety of any one variety show, or parts of it, constitute a “work” under the Copyright Law, whether it can be afforded protection of the law, and the kind of protection that it can be afforded.
Whole and parts of a show
To complete the multi-dimensional protection of the copyright in a variety show, it is necessary to categorise it from its whole to its parts, and analyse it based on the key factors of what constitutes a work.
A variety show is generally constituted from the integration of the conceptual idea, a plan, sequential arrangement, flow from act to act, script, background design, prop design, lighting, music, post-production, etc. The questions of which of these constituent parts alone, or in combination with others constitute works, which are insufficient to constitute a work, etc. are worth delving into. “Idea” and “expression” in the dichotomy of copyright are abstract terms. Without a pure idea that stands in contrast to expression, how to differentiate, in practice, those parts of a variety show that remain stuck at the idea stage from those that have progressed to the expression stage is of crucial importance.
Themes and basic ideas are not protected by the Copyright Law. The subject of protection of the Copyright Law is original expressions, not ideas (and themes). The themes and original creativity of variety shows fall within the scope of ideas because they are too abstract and therefore cannot be protected. As the interests on which ideas have a bearing are relatively broad and involving public interest, it is not appropriate to award a certain entity monopoly rights by such means as IP rights.
Just like Jiangsu Satellite TV’s Stars in Danger: The High Dive and Zhejiang Satellite TV’s Splash! both have celebrities diving as their basic theme, but the manner in which this theme is expressed varies greatly. The simple idea of celebrities diving, being overly abstract, is insufficient to constitute a work and institute a legal action against another for copyright infringement.
However, this does not prevent other parts of the programme from constituting works and seeking the protection of rights using such parts as the basis for the rights. Once any part of a variety show constitutes a work and the variety show of another contains content that is “substantively similar” to the prior work, and the creators additionally meet the condition of having had “access” to the prior work, infringement of copyright in the prior work is constituted.
A variety show that is determined as “work” for the purposes of the Copyright Law should be categorised and protected as a whole. Depending on its degree of originality, a variety show that is filmed and put onto video may be classified as “a work created by a method similar to that for shooting motion pictures”, or “an audio and video recording” as specified in the Copyright Law. Furthermore, the determination of the nature of a variety show directly decides the different scopes of protection of such shows.
For those variety shows that require meticulous preparation by the programme producers and are created using a relative abundance of motion picture filming methods, the copyright holder may award it Copyright Law protection based on the provision of “works created using a method similar to that for shooting motion pictures”.
Those variety shows, in respect of which the programme writers, cameramen, etc., do not play a dominant role in selection of the filmed content, control of stage performances, the arrangement of the acts, etc., and the selection and expression that they can bring to bear of their own will is extremely limited, can be protected as audio and video recordings. The programme producer, as the producer of the audio and video recording, enjoys such neighbouring rights as the right of reproduction and the right of distribution.
For those variety shows that only require the combination and arrangement of several independent acts, it is necessary to determine whether there is a certain originality involved in their selection and arrangement, and if there is such originality, the key condition for constituting a compiled work is satisfied. If the variety show is merely a simple stringing together of independent acts, as a whole it does not constitute a work for the purposes of the Copyright Law, making protection of the whole impossible, but this does not impede separate copyright protection for the independent acts.
The music, dance, acrobatics, comic cross-talk, background design, etc. in a television variety show, that each, on its own, constitutes a work can be accorded individual protection provided that it satisfies the provisions of the Copyright Law.
Where the script, scenario, music, props, background design, etc. of a variety show can each individually constitute a work, the author enjoys the independent copyright in his or her work. For the purpose of the multi-dimensional and comprehensive protection of copyright in a variety show, the variety show producer can secure these scattered copyrights by the way of contracts as a future means to strike back at copycats from various angles, thereby better using copyright as a weapon in protecting the business model.
In addition to Copyright Law protection, IP-related laws additionally provide numerous other means of protecting variety shows. Comprehensive use and multi-dimensional deployment of these methods of protection can provide even more powerful protection for variety shows, the topic of which the authors propose to tackle in detail in the next column.
Wang Yadong is the executive partner and Lu Lei is a partner at Run Ming Law Office
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