Guangdong Higher People's Court makes final judgment on copyright dispute of "Little Yellow Duck"

  □ Our reporter Zhang Ningdan

  □ Correspondent Pan Lingna Li Yan

  The cute "little duck" came to the court.

This time, "B.Duck" (little yellow duck) of Hong Kong Sunco Company and a yellow duck named "Walnut Duck" became "arguing" because of copyright.

  Recently, a reporter from the Rule of Law Daily learned from the Guangdong Higher People’s Court that Deying Trading (Shenzhen) Co., Ltd. sued Hangzhou Hard Walnut Cultural Planning Co., Ltd. and Shenzhen Gaoyimeichen Space Technology Co., Ltd. for copyright ownership and infringement disputes. The judgment of the second instance has taken effect.

The court found that "Walnut Duck" and "B.Duck" did not constitute a substantial similarity, and that Hard Walnut Company did not constitute copyright infringement. Based on this, the court rejected the appeal and upheld the original judgment.

  "B.Duck", also known as "Little Yellow Duck", was created by Sunco in 2005 and then applied to different product categories. Its image is widely welcomed by the public including China and Japan.

Deying Company is the licensor of works authorized by Sunco in Mainland China.

The right holder of the related image of "Walnut Duckling" is Xiguan Company.

In July 2017, Hard Walnut Company commissioned a designer to create the "Walnut Duckling" on the basis of Xiguan Company.

  In June 2019, Hard Walnut Company authorized Gao Yi Meichen Company to hold the "Walnut Duckling Theme Authorization Exhibition" in Donghui City, Maoming, Guangdong Province.

Deying Company sued the court, requesting an order to order Hard Walnut Company and Gaoyi Meichen Company to stop the infringement of the copyright of "B.Duck" art works and to compensate the losses of 500,000 yuan.

  The court of first instance found that the front, back and side of "B.Duck" and "Walnut Duck" have obvious differences in visual effects. The design elements are different, and the design concepts are also quite different. The two are not substantially similar works. .

The "Walnut Duckling Theme Authorization Exhibition" held by Hard Walnut Company and Gaoyimeichen Company does not constitute an infringement. Deying Company's request for compensation has no legal basis, and the decision of Deying Company's litigation request was rejected.

  Deying Company refused to accept it and filed an appeal.

In the second instance, Deying Company submitted new evidence such as Sunco’s designer’s labor contract and requested the court to order Hard Walnut Company to disclose the personal information of the creator of "Walnut Duckling" to verify whether the creator is a former Sunco company. Staff.

Hard Walnut Company submitted new evidence such as the creation draft of "Walnut Duckling".

  The second review of the Guangdong Higher Court revealed that in 1948, Mr. Lin Liang produced and distributed yellow duckling plastic toys in Hong Kong. There were various duck cartoons in the "2000 Cases of Comic Animals" published in January 1993. In 2002, Singapore invested about 120,000. The yellow rubber duck participated in the "swimming" competition. In 2007, the Dutch artist Hoffman created the "Big Yellow Duck". In November 2010, the "BDuck China Official Weibo" uploaded a picture of "B.Duck".

  The Guangdong Higher Court pointed out that a comparison between "Walnut Duck" and "B.Duck" found that, except for the same color used in the work, the duck's facial features, expressions, movements, and body shapes are completely different.

In addition, "B.Duck" and "Walnut Duckling" both won the ADMEN International Award in July 2018, and a large number of netizens believe that both are original.

  The Guangdong Higher Court believes that "Walnut Duck" was created after "B.Duck" was published. Regardless of whether the creator of "Walnut Duck" was a former employee of Sunco, all of them had contact with "B.Duck". may.

The court no longer needs to order Hard Walnut Company to submit the personal information of the creator of "Walnut Duckling" to verify his identity.

Through comparison, although both "Walnut Duckling" and "B.Duck" are both cartoon ducklings created by personification, the creative techniques belong to the category of ideology, and no one can monopolize them.

"B.Duck" is a serious, naive, dull and cute "Little Yellow Duck", while "Walnut Duck" is a cute, youthful, fashionable and pretty "Little Yellow Duck".

The creators of the two use different composition, color, line and other art elements to express different art, and finally form art images with different styles, giving the audience a completely different aesthetic feeling.

  The Guangdong High Court also determined that the similarity between "Walnut Duck" and "B.Duck" is that the yellow color represents the body of the duck, and the orange color represents the duck's mouth, legs and feet, and the similarity is the similar "peach" shape. Shaping the shape of the head; but the same or similar expressions mentioned above have already appeared in Mr. Lin Liang’s previous works such as ducks and Singapore rubber ducks, and are not the original creation of “B.Duck”.

"Walnut Duck" and "B.Duck" do not constitute the same or similar in substance, and do not constitute plagiarism, so the appeal was rejected and the original judgment was upheld.

  The case focused on the two elements of "contact + similarity in substance" in the judgment of copyright infringement, and the dispute was decided.

According to Judge Deng Yanhui, the presiding judge of the case, the decision in this case revolved around the copyright that the parties had petitioned for protection.

Regarding the published work of the right holder, whether or not it is a former employee, it can usually be presumed that the "contact" requirement is established.

The judgment of "substantial similarity" should be based on whether the alleged infringing works copied the original expression of the plaintiff.

Job-hopping employees adopt the same "creative ideas" as the original "host" works in the creative process, such as design techniques and design concepts, which is not a factor in determining the "substantial similarity" of the two works.

  "The protection of copyright is to encourage creation, and we protect all kinds of innovative expressions. We look forward to clearing the boundaries of rights protection and accurately grasping the balance between strengthening copyright protection and protecting the public's freedom of creation. Encourage the production of more excellent works and spiritual food In order to promote cultural prosperity and social progress.” Deng Yanhui said, whether the hard walnut company infringed the "Little Yellow Duck" brand and used unfair means to imitate the "Little Yellow Duck" business image, disputes caused by trademark infringement or unfair competition The lawsuit is resolved.