MAIN GROUND

The plaintiff Shenzhen Yunpai Clothing Co., Ltd. (hereinafter referred to as "Yunpai Company") is a clothing company established on June 17, 2019, and filed copyright registration on a flower and bird map (hereinafter referred to as "the work involved"). The defendant Zhishang Zhimei Clothing Store in Nanshan District (hereinafter referred to as "Zhishang Zhimei Clothing Store") was established in March 2021, and the co-defendant Liu Ye was the operator of the store and once worked for Yunpai Company. 

CAUSE OF ACTION

Yunpai Company claimed that the defendant used the plaintiff's art works on its clothing commodity, which constituted copyright infringement. Zhishang Zhimei Clothing Store argued that the works involved belong to the public domain, and the plaintiff is not the copyright owner of the works involved, so the infringement could not be established. 

CASE ANALYSIS

After hearing the case, the court of first instance held that the works involved had applied for copyright registration in Guangdong Copyright Bureau, and the copyright of their works had been preliminarily confirmed, which had certain credibility and publicity, and finally deemed that ZhiShang Zhimei Clothing Store had committed copyright infringement. ZhiShang Zhimei Clothing Store refused to accept the ruling and appealed to Shenzhen Intermediate Court. 

After investigation, the Copyright Registration Certificate of Works issued by Guangdong Copyright Bureau implied that Zhang Yun, the author of the flower and bird map involved, and Shenzhen Yunpai Clothing Co., Ltd., the copyright owner, completed the creation on August 24, 2020, and made it published on December 30, 2020, and then claimed registration on May 24, 2021. The sample map of the work shows that the work involved is a pattern of two birds standing on flowers. Copyright work registration certificate (copy) notes that: the design of this product is completed independently by the designer. Magpie is an auspicious animal standing for happiness and luck in Chinese traditional culture, so the theme of this work is designed around magpie. In order to enrich the design, designers incorporate a variety of wildflowers to complete the main pattern elements. 

It was also found that on August 22, 2020, an Outsider A (Wechat ID: "Shenzhen Original Brand-Yaruisheng”) sent a cloth model of the art works involved to Zhang Yun, the legal representative of Yunpai Company, hoping to turn it into product. On November 20, 2020, an Outsider B (Wechat ID: "Miss Li") sent the same picture to the defendant Liu Ye, who was still working in Yunpai Company at that time, and informed him of the existence of the pattern and asked whether it could be used for clothing proofing. 

The focus of the dispute in the second instance of this case is whether Zhang Yun is the author of the art works involved and whether Yunpai Company is the copyright owner of the art works involved. 

The court of second instance first made it clear that the work registration certificate is only the preliminary evidence to prove that the registered author enjoys copyright, even if the natural person, legal person or unincorporated organization that signed the work or product is regarded as the copyright owner, such ground will be ruled out if there exists an counter evidence. 

According to the relevant provisions of copyright registration, a voluntary registration system is implemented for works without substantive examination, but the parties do not enjoy copyright because of the registration of works. In the case that Zhishang Zhimei Clothing Store and others have cited enough disproof to make the registration of this preliminary evidence unclear, Yunpai Company should further prove its right basis, such as the creative process. However, the evidence submitted by Yunpai Company in the second instance is not sufficient enough to meet the standard of high probability. Although Yunpai Company submitted the video recorded according to the pictures saved on computer, when the court asked the author Zhang Yun about the creative process, he only claimed that he had hand-painted the flower and bird pictures, and then handed them over to Yaruisheng Company for modification and colorin. The court asked her to simply hand-paint the elements of the works involved in the case in court. Zhang Yun then claimed that he was a fashion designer rather than an artist and could not draw. His hand-painted content contributed only 3%-5% of the art works involved in the case, and the works involved were revised together with the factory. 

To sum up, the court of second instance held that the right basis of Yunpai Company could not be established for the following reasons: 

First, the creative intention: the elements of the art works involved include flowers, leaves and birds, while the creative elements reported by Zhang Yun are inconsistent with the elements actually expressed in the art works; 

Second, the creative process: Zhang Yun reported that he drew manuscripts, but also said that he could not draw, and that he did not major in art, and such claims were contradictory; 

Thirdly, the probative force of evidence: the evidence submitted by Yunpai Company is the drawing of the art works involved, which is not the direct evidence to prove the creative process, and is not sufficient enough to achieve the purpose of proof. 

On such ground, the court of second instance ruled that the judgment of first instance was revoked and the lawsuit of the appellee Yunpai Company was rejected.