Is There Legal Risks in Using Videos Taken by Others for Promotion?

Liu took a short video for his self-driving trip to skiing by driving a Brand A car, and shared such video on the online platform. Company A used this video in a client’s advertisement, which was released via WeChat official account and Weibo. Liu filed a lawsuit against Company A for the infringement of copyright. Recently, the court decided that Company A had infringed Liu’s copyright, and ordered Company A to apologize and compensate RMB500, 000 to Liu. This case is the first copyright infringement case by using a short video in an advertisement. And the compensation amount is the highest among the similar cases till now.

With the rapid development of online platforms, and shared video apps (e.g. Douyin), the videos published on those platforms or apps have brought a lot of fun to the public, and have attracted the attention of many business operators. Some business operators chose to use those videos directly, or imitate those videos, in commercial promotions, which aroused copyright infringement disputes.

The main factor in such cases is whether the video is the “works” protected by the Copyright Law. According to the “Implementation Regulations of the Copyright Law”, such “works” shall have 3 elements: (a) a specific expression in the literary, artistic or scientific domain; (b) originality; and (c) reproducible. For those videos on the online platforms, or apps, the key element is to prove the originality.

In the case at the beginning, Beijing Haidian District People’s Court held that the video involved was taken by the photographer by using professional camera equipment, and it was edited by embodying several filming materials. Such video involved had represented the author’s intellectual creation, and belonged to the “works” created by a process analogous to cinematography. In (2018) Jing0491 Min Chu No.1 case, the Beijing Internet People’s Court points out: a short video is a new video type, which has some characteristics, such as the threshold for creation is low, the recording time is short, the theme is clear, the social and interactive function is more obvious, it is easier to be spread, and etc.. The court has also mentioned that the requirement for the originality of such short video shall not be too restricted, because the creation and dissemination of such short videos is good for the diversified expression of the public, and the development of culture. Therefore, if such short video could express the author’s personal idea, its originality shall be accepted. In view of these judgments, the current basic judicial opinion is that a short video has met the minimal requirement for originality, and then it could be deemed as the “works”. The length of such video would not affect the determination for originality. For example, in the first short video copyright case, Beijing Kuaishou Technology Co., Ltd. v. Guangzhou Huaduo Network Technology Co., Ltd., the length of the 2 videos involved is 36 seconds and 18 seconds.

Therefore, if you use the videos taken by others in commercial promotion, then such behavior would be more possible to be deemed as a copyright infringement behavior. How about those imitated videos?

The key point is whether the imitated videos will lead confusion to the relevant public. For example, in (2007) Yunfamin Sanchuzi No. 42 case, Guangzhou Baiyun District People’s Court points out: although the defendant used different actors, entrusted a third party to produce a “Xian Mei Ting Orthopedic Underwear Advertisement”, and added more contents, the first part of the advertisement is as similar as the plaintiff’s advertisement, no matter from the perspective of the main content, basic plot, narration, or the product’s demonstration method and etc., which might lead confusion to the relevant public. Finally, the court decides that the videos involved dose not made independently, which could not express the author’s personality or uniqueness, and such behavior has infringed the plaintiff’s copyright.

In summary, companies shall pay attention to the following two aspects while using other’s video directly, or taking other’s video for reference. First, for using directly, it is recommended to contact the copyright owner, obtain the authorization, mark the author’s name and the source, and modify the work upon obtaining the approval of the copyright owner in advance. If the copyright owner has not been found, it is recommended to mark the author’s name and the source;in addition, it would be better to release an announcement on the using page, and the announcement shall state the willingness to pay for the license fee, or delete such content timely upon the requirement of the copyright owner. Second, for taking other’s video for reference, such as the shooting techniques or ideas, it is recommended not to copy the scripts or expression methods directly, but try to highlight its own creative points, by which the new video could be distinguished from the original one.