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IPR Special ... ...
    False promise
He Sheng
2006-03-13 07:59

China's filmmaking community has been shaken over the past several weeks by a parody of last year's most highly anticipated domestic movie.

Hu Ge, a Shanghai-based multimedia designer, made a comic short using footage from Wuji (The Promise), a 35-million-dollar blockbuster released late last year.

Unlike the movie upon which it was based, Hu's short was about a murder bizarrely initiated by a steamed bun. Footage from the original film and several other TV programmes were woven into the dumpling storyline. Devoid of the philosophical musings that figured so prominently in The Promise, Hu's short is awash with funny, caustic riffs on some of the source material's main themes. Hu's parody soon went popular with millions of viewerss after released on the Internet early this January.

Hu says he made the clip for fun, but director Chen Kaige was not amused. Chen (Farewell, My Concubine) blasted Hu for being "unimaginably unscrupulous" in making the parody, and threatened legal action in mid-January. The incident quickly evolved into a war of words between Hu and Chen, as well as Chen's wife, his ex-wife, the movie company, film critics, lawyers and tens of millions of Internet users. The debate centres on whether Hu infringed upon Chen's copyrights (as some claim).

China's Copyright Law recognizes the producer, not the director, as the lawful holder of most of the copyrights in a movie (Article 15). As the director of The Promise, Chen only enjoys the right of attribution to the film under Copyright Law. Hu rightly gives credit to Chen by acknowledging him, among others, towards the end of his parody. It is unlikely that a court would determine that Chen's right of attribution had been infringed upon.

It has also been suggested that Chen might sue Hu for defamation. While Chen might feel his reputation as an artist has been damaged by Hu's parody, there probably is little legal support for such a claim. Hu did not make up anything about Chen, nor did he insult him in the parody. It is unlikely a solid defamation case can be established using Hu's film.

Rather, it's the producers of The Promise who might have a case against Hu.

Main contentions

If the producers choose to sue, which seems increasingly likely, Hu might find himself in an unfavourable position.

There is no dispute over the fact that Hu used portions of The Promise without permission. The dispute lies largely, if not completely, in the law itself. No specific provisions in the Copyright Law deal directly with parodies of copyrighted work, and no similar case has been reported in China

The producers, however, might have at least two arguments to back their claims, by referring to certain sections of the Copyright Law. Hu's work might constitute a mutilation and distortion of the original film, which would be an infringement upon the producer's right of integrity to the work (Article 10.4, Article 46.4). The 20-minute short is also largely comprised of cut-and-paste scenes from The Promise, and has been released to countless Internet users, however. This could constitute unlicensed reproduction and distribution (Article 10.5, 10.6, 10.12).

Hu's main counter-argument is that his film constitutes a fair use of The Promise, and that the law does not require prior permission or payment. It has been suggested that Hu's work, though sarcastic, is a critical comment on the original, in which case quotation is allowed and comments, though derogatory as they may be, should be tolerated .

The Copyright Law allows for appropriate quotation from published work for the purpose of making a comment (Article 22.2), but Hu's work barely qualifies as commentary which supposedly distinguishes facts from opinions. Rather, it tells of a story in its own, giving the leading roles of The Promise new, rather comical identities. Hu may have impliedly made a comment on "a bore without originality", as he claimed, by so doing, but The Promise's producers may equally feel their work has been mutilated and distorted by Hu's flick. Further, given that Hu's work is largely comprised of a substantial portion of footage from the original film, it can hardly be treated as "appropriate quotation".

Hu's other defence is that his short was not intended for commercial purposes. Copyright Law treats use of a copyrighted work for private study, research or simple self-entertainment purposes as fair use (see Article 22.1), but Hu's film has been released and circulated over the Internet. It has become public entertainment.

At one point, media reports quoted Hu as saying he had simply sent his work to a couple of friends, but had no idea it had been released online. On another occasion, he was reported to have uploaded the movie to his blog. It was then downloaded and circulated by unknown users.

If the first case holds, Hu might be let off . Otherwise, he could be in trouble.

Likely outcome

While Hu's short might infringe on the original film, it appears unlikely that it has caused any material losses for the producer of The Promise, a film that had already done well at the domestic box office long before Hu's parody became popular online. Hu made no money out of his work, nor has such an intention ever been established.

The Promise's producer would be legally justified to demand an apology from Hu, but might have a tough time getting more than nominal damages out of the courts.

This article represents the opinion of the author, and does not necessarily reflect the views of this publication.

(China Daily 03/13/2006 page9)


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