The article is from the public number: Game Research Agency (ID: yysaag) , author: ten inclement weather, from the title figure: Figure worm creativity.
Every boy has a dream of kung fu, thinking of martial arts and fighting justice, punishing evil and promoting good, the origin of this dream is Bruce Lee.
Brussels is more like a philosopher than an actor or master of martial arts. He turned martial arts into a tool for breaking racial and cultural barriers and achieving self-liberation. For more than half a century, he has lived in the hearts of every Chinese, and he still motivates us to move forward and strengthen ourselves.
Zhen Zidan’s “Ye Wen” series is over, Chen Guokun’s “Bruce Lee” series is expected to take over the “Wing Chun Universe”
In the past 2019, “Bruce Lee” has become a frequent topic of traffic: first, the controversial plot in Quentin’s new work “Honours of Hollywood”, and then the follow-up in “Ye Wen 4”. At the end of the year, Li Xiaoning’s daughter, Li Xiangning, initiated a tort lawsuit against the well-known domestic fast-food brand “Real Kung Fu”, which once again caused a lot of public opinion.
Three successive versions of the alleged trademark infringement image
On December 5, 2019, the Shanghai Second Intermediate Court formally accepted the case. According to the indictment, the plaintiff believed that “True Kung Fu” used Bruce Lee’s image in trademark design and product marketing for a long time, demanded that the infringement be stopped immediately, and RMB 210 million be compensated.
From in-store decoration to TV commercials, everything hints at the brand’s connection with Bruce Lee
Although netizens almost think that this kind of Bruce Lee marketing, which is called “family bucket”, is a naked infringement, public opinion is not optimistic about the results of the rights protection.
Prove that “this is me”, this is difficult
To analyze the right and wrong from the perspective of law, not from the perspective of public opinion trials, we must first understand the definition of “portrait”.
According to Chinese law, portrait refers to the visual feedback of specific natural physical features. The public recognizes and refers to the corresponding natural person through “portrait”, and distinguishes the natural person from others accordingly.
The key word of the above concept is firstly “specific natural person”. The infringing image and the portrait of the right owner must establish a unique correspondence. Just looking at the image is not enough.
Second, lies in the “identifiability” of appearance visual information. Although “portrait” covers the physical features of natural persons, elements such as posture, movement, and clothing are generally considered to have no specificity. The judicial practice of related infringement cases generally takes facial features as the main comparative element.
To put it plainly, just two words-look at the face .
The vast majority of infringers are not stupid enough to hold unauthorized celebrity photos to stand on their own
In 2010, a six-year-old child sued Langang Company in its online game “Journey to the West”, using the image of Sun Wukong that he played in the TV show of the same name, and playing partly vulgarly, infringing his right of portrait and reputation.
The court of second instance recognized that the artistic image also belongs to the protection scope of portrait rights. However, by comparing the two “Sun Wukong”, it is found that there are many differences in the facial features of the two. ( (See picture below) , the six-year-old boy lost the lawsuit.
This case was dubbed by players as “Let’s find the differences”, pay attention to the details
Returning to the “True Kung Fu” case, as far as “face” is concerned, the face of the warrior in the trademark involved in the case is blurred, and the difference with the infringement object is far greater than that of the two “Sun Wukong” in the above case. The difference is that it is almost impossible for the court to identify these cartoon avatars as Bruce Lee.
Obviously, in the case of the defendant’s “faceless” and “faceless”, Li Xiangning’s proof can only be carried out around the character’s posture and movement characteristics.
As for this road, it is even more difficult to walk.
The Supreme Court ’s final ruling in the “Jordan Sports Infringement Case” last October resulted in “the defendant ’s trademark did not infringe Michael Jordan ’s right of personal portrait”. In this case, the classic photo (right) shown by the plaintiff’s NBA star Michael Jordan’s client is the same as the defendant’s trademark silhouette (Left) The degree of coincidence is almost to the point where it is” strictly threaded “.
However, because there is no facial information, the so-called “body features”-that is, the almost identical layup action-is not supported because it does not have recognition. In this regard, the court explained as follows-“The defendant’s trademark characters present the technical and tactical actions of basketball, and other natural persons can also perform the same or similar actions.
According to the “Jordan case” identification method, it is clear that the physical characteristics of “True Kung Fu” trademark characters cannot establish a direct connection with Bruce Lee himself. Because these are also “mockable martial arts moves”, they may point to anyone-they can be the two Bruce Lee actors in “Ye Wen 4” and “Hollywood”, or some unknown imitator.
The portrait and nickname were also made into trademarks, but they could not prove “That’s me”, a well-known domestic actor and director Lu Zhengyu
In a sense, silhouettes, cartoons, and game avatars that are similar to celebrities are difficult without accidents, such as when the infringer does not resort to self-inflicted actions, or when the subjective and malicious use of the right to portrait is exposed Defined as portrait infringement.
At present, the defendant in the portrait infringement case in China defends his thoughts, just like the above dialogue
Enthusiastic netizens also found out for Ms. Li XiangningLess valuable information: The defendant’s trademark intellectual property registration certificate, and the internal meeting of the PPT, have repeatedly appeared “Bruce Lee” name.
The designer of the brand has also talked about the source of trademark image and marketing design in public. These evidences are sufficient to prove that “true kung fu” has subjective malicious intentions.
Ye Maozhong: I do n’t understand how sacrifices can become a brand? 》 An excerpt from the article, Ye Maozhong is behind the “True Kung Fu” brand
While waiting for Bruce Lee’s daughter, it is likely to be a weird circle of “I can prove you infringe but I can’t win”.
Zhou Haiying does not have the right to inherit the portrait of his father Zhou Shuren (Lu Xun)
According to China’s current law, portrait rights cannot be transferred and inherited. From thisLi Xiangning, the daughter of Bruce Lee, did not actually qualify as the subject of the lawsuit in this case.
Although China is not a country of case law, the above-mentioned cases have important reference significance for clarifying the court’s interpretation of the relevant legal provisions and the thinking of the trial. They all indicate that the results of the “True Kung Fu” case will be significant for the plaintiff It’s not optimistic.
Ms. Li Xiangning’s “knowing what you can’t do” naturally raises some questions. In addition to the above conspiracy theory, some people inevitably get involved in “national justice”: from the first Chinese superhero created by Marvel in the 1970s-Shangqi, to various martial arts based on Bruce Lee in fighting games Home, these are either “Lee” (Lee) in the last name, or “Long” (Dragon, Long) , all of them make Jeet Kune Do. Iconic movements such as inch-inch strength, Qizi kick, high leg, thumb touching nose, etc. are all exquisite, and there is a cry of “Ahhhhhhhhhhhhhhh …” “It’s like much.
Then the question comes, why didn’t Li Xiangning sue one by one in the U.S. courts?
Next, let ’s assume what this case would look like in the United States.ending.
In the United States, things are really different
If the “True Kung Fu” case occurred in the United States, Ms. Li Xiangning can take the “image right” (publicity right, also known as the right to publicity) < / span>. Although it is only a word difference from the “right of portrait”, the meaning and scope of application of the two are very different:
The portrait right usually cannot cover information other than the face, but the image right can. The hairstyle, clothing, experience, accent, sign action, etc. can all be considered as its components; the portrait right is a personality right Has a high degree of specificity and exclusivity, and the right to image is a type of property right that can be transferred and inherited; the identification of portrait infringement is very difficult, and the infringement of image is relatively easy-as long as the “core characteristics” of the right holder are used, it is fabricated An “identifiable image” can be considered infringing if it is used for commercial purposes.
Under the market environment in which copycats are everywhere, and the market is full of flying balls, the image right can be regarded as a magic weapon that can achieve “dimensional reduction.”
Since ordinary people cannot become “identifiable images” under the blessing of the mass media, the right to image is also widely regarded as the privilege of celebrities.
In order to avoid abuse of image rights, the trial of similar cases in the United States requires a so-called two-step test: the first is the “public recognition test”, which is similar to the jury system and is jointly selected by the prosecution and the defense. Test subject, then display the image of the alleged infringement, and judge whether the two are related by voting.
Of course, even if the vote is passed, it can only reflect “he is very much like me”. Want to prove “He is me”, rely on the “conversion use test”.
As the name suggests, this link is to judge the defendant directly to the plaintiffThe image is used for improper gains, or the relevant elements are used for new stories and expressions. An image that conforms to the principle of “transformative use” will not be considered infringing but will fall into the protection scope of “freedom of expression” in the First Amendment of the US Constitution.
In this regard, Hollywood actress Lindsay Lohan has “appeared”.
This topic girl used to be a hot national girl, but because of her chaotic private life, she became a joke chased by paparazzi and a mockery of talk shows. In 2013, Lindsay Lohan sued Rockstar for infringing her image rights in GTAV. In addition to the cover girl in the picture above, she believes that R Star will also make herself a virtual character.
In the game spur line, an over-excited actress named Lacey Jonas appeared. R star not only concisely summarizes Lindsay Lohan’s main black materials so far in this character, but also portrays her expression as a three-pointer, which fully conforms to the definition of “core characteristics” of image rights.
Because she was afraid that she would be fattened by paparazzi, Lacey asked the protagonist to escort her home
But even if everyone can take this role in the right seat, the court still believes that the game uses its image for the expression of a specific story, which fully meets the definition of “transformative use.”
According to the ruling of the US court in the image infringement case, it is not difficult to see that “TrueThe trademark image of Kung Fu is generally misleading and without any trace of secondary creation, it is difficult for even big-name lawyers to defend.
As for Li Xiangning’s “Leave Nothing”, those ACG characters who are closer to their father than “True Kung Fu”, and have more “identifiable” dynamic details, can also exist legally. Successful application of the above principles.
Methodology for Creating Millions of “Bruce Lee”
Some creators have adopted a mix and match line, such as the main character of the “Fight of the Big Dipper”, the boxer Shiro, whose original image is a combination of Bruce Lee and Matsuda Yusaku, and later it is integrated into the parts of Stallone and Schwarzenegger. Features, the spirit of steel straight men to the end.
Fuji Shiro is set to be the master of Jeet Kune Do and Wing Chun, and the voice actress Kamiya also deliberately imitated Bruce Lee ’s cry in the battle scene.
Some “Bruce Lee” created a brand-new “looking like God” (non-derogatory) by strengthening personality and giving unique stories. Image. Marshall Lowe in Tekken is widely regarded as a fighting game character most like Bruce Lee, but he always feels like a comedian to us. Luo on the arena is a powerful Jeet Kune Do man, but in his life he is always in a state of steadiness, letting people spray rice.
Who made him accidentally make a friend and gave birth to a bear son
There are other games that simply and generously indicate that their role is “copy”: the dragons that have appeared since “16-Man Street Fighter”, I am a fan of Bruce Lee, from appearance to tricks. Deliberately imitating Bruce Lee, and eventually perfected Jeet Kune Do to a martial art called “Fei Tian Liu”, completing the unfinished career of a generation of masters.
Li Qiang in “Life or Death” has been an orphan since he was a child. He was humiliated in the streets. He watched Bruce Lee ’s movie and learned the meaning of Jeet Kune Do. He eventually became a generation of martial arts masters … The method of the origin of the prototype characters not only maintains the independence of the original characters, but also describes them as the spiritual successor of Bruce Lee.
Li Qiang in Life or Death
This “copying” method allows players to feel the extraordinary charm of Bruce Lee, and also the deep respect of the creators, and even these original characters, seeing the descendants and birth of the dragon The inherent self-improvement spirit .
Compared with it, while copying it, he was stupid and innocent. “True kung fu”, will there be a flash of light in my heart?ashamed.
Conclusion
The different possible outcomes of the “True Kung Fu” case in China and the United States are, in the final analysis, the results of the application of two different laws. In essence, there is no question of who is higher or lower.
The reason why the plaintiff in this case won no accident in the United States is because the “image right” has expanded the scope of the “portrait right” in the traditional sense and enlarged it into a new type of intellectual property and personal property rights. It is the power of individuals to dominate their identity in exchange for economic value.
However, it should be pointed out that “the right to image” is a unique legal concept in the United States. It is not only rare in the Western judicial system. Even the four states in the United States have no relevant legislation and have not yet adopted federal law. Not only is it generally regarded as the privilege of celebrities, but it also objectively fosters the existence of people who “lie on the right to sleep”.
Li Xiangning repurchased Bruce Lee ’s related movie rights ten years ago and registered a large number of images, which can be obtained every year only by authorization Millions of profits
Most countries in the world, including China, attribute the right of portraiture to the category of personality right, and do not clarify the individual’s right to dominate the commercial value of personality attributes, which reflects the spirit of “all people are equal before the law”. Also avoids malicious rights actions and complaintsStick company presence. However, in the face of endless incidents of image infringement, it is also urgent to carry out a judicial interpretation of the right to expand the definition of portrait right, and to adopt the standards for advancing infringement.
In this sense, we still look forward to the outcome of the “True Kung Fu” case.
The article is from the public number: Game Research Society (ID: yysaag) , Author: Ten inclement weather.