Q: “Is it legal that using Ultraman toys to shoot video stories and upload them to the internet? ”
Q: “I wrote, directed and filmed all the toy videos by myself, and Ultraman is only one of the characters. Is there any copyright issue involved? ”
Q: “The Ultraman toys I am using to take video are genuine, is it free of legal risk? ”
A: “No matter the the toy is a legitimate or pirated version, you need to obtain the license from the copyright owner. Otherwise, it may constitute infringement”.
With the booming of the We Media, shooting short videos and uploading them to the internet has become a fashion. Toy videos or videos with toys as the main characters are one of the most popular ones, which are greatly favored by kids and parents. This kind of video not only integrate all kinds of knowledge or stories and make it entertaining, but also introduce new and interesting toys to the children, promote toy products, and obtain huge traffic for the platform. Therefore, videos with toys as the main characters usually have high commercial value.
However, when shooting toy videos, special attention should be paid to the selection of toys and characters. If toys made from images of others copyright are used, such act may constitute infringement, regardless of whether the toys purchased are licensed or pirated.
In the case of Shanghai Xinchuanghua Culture Development Co., Ltd. (hereinafter referred to as the “Plaintiff”) v. Beijing Yuranzhi Film & Television Culture Communication Co. (hereinafter referred to as “Defendant”), the court made a clear answer to the said question relating to this type of copyright infringement and unfair competition.
Background
“The Ultraman is a series of movie and television produced by the Japanese company Round Valley Productions, Inc. The works and the Ultraman characters have become extremely popular and well-known in Asia and around the world.
The Plaintiff is the exclusive licensee of the fifty-five Ultraman film and television works in mainland China. The Plaintiff exclusively enjoys the licensing of reproduction, distribution, rental, exhibition, network communication, and other related rights of the said work.
The Defendant, without the Plaintiff’s authorization, produced and filmed videos and pictures of toys containing images of the characters of the Ultraman series, and uploaded them to the streaming media of Tencent Video and the social media of Wechat under the Defendant’s own WeChat account, offering to unspecified customers who can view and download at a time and place at their own choosing. These videos include many toys of well-known cartoon images such as Ultraman, Piglet, Yellow Man and the Defendant’s own bear image as characters. The Defendant wrote scripts and inserted narration through the setting of certain scenes, so as to make the characters related to each other and created different scenarios and short stories. Among them, the Defendant filmed a series of toys videos entitled “Ultraman Stories”, in which there are more than 400 videos with images of Ultraman characters, involving a total of 33 different Ultraman images. Each video followed by a QR code with the text “Scan and follow WeChat to get free toys! At the end of each WeChat article, there is a link to a small program on other streaming media platforms, which can be clicked to enter the “Toy Storytelling Club” and “Listen to a Storytelling†program produced by the Defendant.
According to the Plaintiff’s incomplete statistics, the Defendant uploaded to the streaming media more than 800 videos which are suspected of infringing the Plaintiff’s copyright. The length of each video is from 1 to 5 minutes, with over 730 million playback times in total, and resulted in more than 432,000 times subscriptions of the defendant’s own branding program. Based on the above, the Plaintiff sued to the court, requesting the Defendant to stop the infringement and seek for damages.
The Defendant argued that the use of toys involved in the video work is fair use because the Defendant purchased the genuine “Ultraman” toys and exhausted the right in using them filming the related videos. As such the Defendant did not infringe the copyright of the work in question.
The Court Ruling
The Defendant’s conduct did not constitute reasonable fair use.
1. The Defendant used famous cartoon images such as Ultraman, Piggy Peach, Yellow Man, etc. and the Defendant’s own brand, Little Bear, as its characters, and through setting up scripts and inserting voice-overs, interpreted different scenarios of short stories, and filmed them into small videos and uploaded them to various steaming media. Besides, by scanning the QR code at the end of the video, customers are directly led to the Defendant’s own WeChat account with other commercial products. From the above process, it can be seen that the Defendant’s use of the works in question objectively broadened the user flow of the WeChat account and the related programs operated by the Defendant, and significantly enhanced the public’s awareness of the Defendant’s own brand image. Such use had an apparent and certain commercial purpose. In addition, the large number of works involved and videos filmed has greatly exceed the reasonable line of fair use.
2. The Court has no objection on the Defendant’s property rights of possession, disposal and other rights belong to the Ultraman toys. However, the cause of action here is copyright infringement which is a separate legal issue from property ownership. In discussing copyright infringement, the Court focuses on intangible objects, of which is intellectual achievements or knowledge outcome created by intellectual labor. The Defendant’s ownership of the genuine Ultraman toys does not ipso facto extend to the copyright of the Ultraman works of art.
In summary, the Defendant used the Plaintiff’s copyrighted images of Ultraman characters to produce and promote its own products, and number of infringed images is so large that such conduct does not constitute fair use. The court found that the defendant infringed the plaintiff’s copyright and thus shall stop the infringing acts immediately and pay the damages of RMB 320,000 to the Plaintiff.
GoldenGate Lawyers represented the Plaintiff in this case and attorneys in charge of this file are Linda Zhao and Auguste Xin.
Counsel for the plaintiffs in this case
Linda Zhao
Lawyer, Founding Partner
Auguste Xin
Attorney-at-Law
