The second creation of Bing Dun Dun, is your behavior legal?
Under the craze of the Winter Olympics, the mascot Bing Dundun quickly became popular on the Internet with its naive appearance and became a veritable "top stream".
It has created a situation where "one pier is hard to find" by itself, and even "borrowing a pier to take pictures" appeared in the circle of friends.
In order to realize the "Freedom of Bingdundun", netizens have carried out the "Bingdundun DIY Contest" on social platforms. There are woolen piers woven with wool, orange piers made of sugar orange, hand-painted piers drawn by themselves, and flour kneaded piers. Noodles and so on.
However, according to the Regulations on the Protection of Olympic Symbols, the mascots of the Beijing Winter Olympics, Bing Dun Dun and Xu Rong Rong, belong to the category of Olympic symbols, and no one may use them for commercial purposes without permission.
Then, under what circumstances is the use of the images of Bing Dun Dun and Xu Rong Rong illegal, and how can they satisfy the needs of public entertainment without infringing?
A reporter from the Beijing News interviewed Ni Duan, assistant judge of the Fengtai District People's Court in Beijing, Li Junhui, a special researcher at the Intellectual Property Research Center of China University of Political Science and Law, and Zhang Jiyu, an associate professor at the Law School of Renmin University of China. They analyzed this series of issues.
Beijing News: What are the special features of Bingdundun and Xuerongrong related peripheral products as licensed products for the Winter Olympics?
Ni Duan: Bing Dun Dun and Xue Rong Rong are the mascot images of the Beijing 2022 Winter Olympics Organizing Committee, and they belong to the Olympic symbols stipulated in Article 2 of the Regulations on the Protection of Olympic Symbols.
As the copyright owner of the images of Bing Dun Dun and Xu Rong Rong, the Beijing Winter Olympics Organizing Committee has registered their images in the Copyright Protection Center of China.
Therefore, Bingdundun and Xuerongrong related peripheral products are not only protected by the Copyright Law, but also protected by relevant laws and administrative regulations such as the Regulations on the Protection of Olympic Symbols and the Regulations on the Administration of Special Symbols.
According to the "Copyright Law", individuals who study, research or appreciate, use other people's published works, or in order to introduce, comment on a certain work or explain a certain issue, appropriately quote other people's published works in their works, and report news, In the case of unavoidably reproducing or citing published works in newspapers, periodicals, radio stations, television stations and other media, without the permission of the copyright owner and without payment of remuneration, the author's name or title and the title of the work shall be specified, and It must not affect the normal use of the work, and must also reasonably damage the legitimate rights and interests of the copyright owner.
The Beijing News: Are the popular and popular porcelain Bingdundun, woolen Bingdundun, Bingdundun dumplings, Bingdundun emoticon package and other items that are secondarily created in the image of Bingdundun suspected of infringement?
Ni Duan: For most netizens who make Bingdundun by hand, for the purpose of self-appreciation, using the image of Bingdundun to weave a sweater, make a cake, build a snowman, etc. will not constitute the meaning of the Copyright Law. violations above.
However, the "Copyright Law" stipulates that, without the permission of the copyright owner, disseminating his works to the public through the information network constitutes an act infringing on the right of others to disseminate information through the network.
Therefore, if the Bing dun dun emoticon package is made without authorization and disseminated on the Internet, if the behavior is not authorized by the Beijing Winter Olympics Organizing Committee, it constitutes an infringement of the right to disseminate the work information on the Internet as stipulated in the Copyright Law.
Zhang Jiyu: I think emojis are more likely to constitute infringement. They cannot constitute the situation mentioned above - neither for self-learning and appreciation, nor for proper citation.
Because the copyright owner can license others to make emoticons for profit, unlicensed emoticons will affect the copyright owner's normal use and legitimate rights and interests of the work.
For infringing acts, the copyright owner can request the infringer to bear the infringement liability, including stopping the infringement, deleting the relevant content, and compensating for losses.
Beijing News: What legal responsibilities do I have to bear for the sale of self-made Bing Dun Dun, Xue Rong Rong image keychain pendants, badges and other peripheral products?
Ni Duan: The sale of self-made Bingdun and Xuerongrong is an act of copying and distributing other people's works without the permission of the copyright owner, which infringes the rights of reproduction and distribution enjoyed by the Beijing Winter Olympics Organizing Committee for the images of Bingdun and Xuerongrong .
The infringer shall bear civil liabilities such as stopping the infringement, eliminating the impact, making an apology, and compensating for losses according to the circumstances.
If the infringing act also damages the public interest, the competent copyright department shall order it to stop the infringing act, give a warning, confiscate the illegal gains, confiscate and harmlessly destroy the infringing copies and the materials, tools, etc. mainly used for making the infringing copies. Equipment, etc., and impose corresponding fines according to the illegal business volume.
Constitute a crime, be held criminally responsible.
In terms of the amount of compensation, according to the Copyright Law, for intentional infringement of copyright or copyright-related rights, if the circumstances are serious, compensation may be paid not less than one time but not more than five times the amount determined by the above method.
If the actual losses of the right holder, the illegal gains of the infringer, and the royalties of the rights are difficult to calculate, the people's court shall, according to the circumstances of the infringement, decide to give compensation of not less than 500 yuan but not more than 5 million yuan.
The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.
Beijing News: There are a lot of hot topics on the Internet such as "BingdunDun DIY Contest" and "Show my BingdunDun". Are the works infringing?
Li Junhui: If a social platform has not obtained permission, it is not allowed to use various works created by the public that contain elements of Bingdun and Xue Rongrong to engage in for-profit activities. In hot topics such as "Dun Dun", social platforms are not allowed to place relevant advertisements.
In addition, some big Vs and Internet celebrities spread secondary creations containing elements of Bingdun and Xue Rongrong on the Internet, such as posting videos of making Bingdun's cakes. Although they do not use this item for actual profit, if If it is used to attract attention, increase attention or fans, it may also constitute infringement if it is identified as a disguised or indirect commercial gain, or if it is suspected of monetizing traffic.
Zhang Jiyu: If a netizen’s production is only for personal use, it can be classified as personal study, research or appreciation. For example, in an article, an evaluation of the design of Bingdundun is attached, and a picture of Bingdundun is attached. It is necessary to explain that as long as the review is of appropriate length and the purpose of the review is indeed to introduce the review, then it is not infringing, and I think it can be classified as fair use.
However, it is difficult to be classified as fair use if it is widely disseminated on the Internet, especially in organizing competitions.
Beijing News: When the public and platforms use the image of Bing Dun Dun, how can they satisfy entertainment needs without violating the law?
Li Junhui: From the perspective of the balance and consideration of various rights and interests such as protecting public enthusiasm, encouraging value creation, and protecting the exclusive rights of Olympic logo owners, some such activities or topics on platforms with a nature of public communication are best to obtain the rights of the owner of the logo. Agree or support.
Zhang Jiyu: It would be better if the platform could obtain permission from the copyright owner and notify netizens.
Without permission, even if the platform does not intentionally infringe, if the user uploads infringing content, the platform may constitute a helper infringement and needs to be held liable.
(Reporter Zhang Jingshu; intern Zhou Jieyu)