Recently, the Hangzhou Internet Court made a first-instance judgment on the first case involving “virtual digital human” infringement in China, ruling that the defendant Hangzhou XX Network Company constituted copyright infringement and unfair competition, and ordered it to bear the legal responsibility of eliminating the impact and compensating for the loss (including rights protection costs) of 120,000 yuan.

Mofa Company applied various artificial intelligence technologies, such as AI performance animation technology, ultra-realistic character intelligent modeling and binding technology, intelligent animation and voice synthesis technology, and intelligent interaction technology, to create a ultra-realistic virtual digital human Ada. In October 2019, Mofa Company released virtual digital human Ada through a public event, and published two videos on the bilibili platform in October and November of the same year. One was used to introduce the scene application of virtual digital human Ada, and the other was used to record the motion capture picture of real actor Xu XX and virtual digital human Ada.

In July 2022, Hangzhou XX Network Company published two infringing videos on its Douyin account. The central position of the video used the relevant video content released by Mofa Company, and replaced the relevant signs at the beginning and end of the video, and added marketing information of virtual digital human courses in the whole video. One of the videos also added Hangzhou XX Network Company’s registered trademark, and wrote other virtual digital human names in the video title.

Mofa Company claimed that Hangzhou XX Network Company’s above-mentioned behavior infringed its right of information network dissemination of works of art and audiovisual works, infringed the right of information network dissemination of performers and producers in video products, and constituted false publicity of unfair competition behavior. Therefore, it sued to the court, requesting Hangzhou XX Network Company to eliminate the impact and compensate for the loss (including rights protection costs) of 500,000 yuan.

Hangzhou XX Network Company argued that Mofa Company did not enjoy relevant rights, its behavior did not constitute infringement, and it did not actually profit from publishing infringing videos.

The court held that the main focus of dispute in this case was: 1. The recognition of copyright and neighboring rights of virtual digital humans; 2. Whether the virtual digital human Ada image and related videos claimed by Mofa Company belong to the object protected by the Copyright Law, whether Mofa Company enjoys the performer’s right in the video product involved; 3. Whether copyright infringement and unfair competition behavior are established.

Regarding the recognition of copyright and neighboring rights of virtual digital humans, combined with the generation method and technical background of virtual digital humans, they are visualized presentation images of virtual characters with characteristics and behavior patterns such as appearance and voice created by modeling, intelligent synthesis, motion capture and other digital technical means. In view of the current industry development situation, when focusing on the choice of technical paths, more common types of virtual digital humans include: real person modeling, real person driving; real person modeling, algorithm driving; fictional character, real person driving; fictional character , Algorithm-driven. Algorithm-driven virtual digital humans are strong artificial intelligence, which are still in a gradual development stage. Compared with that, real-person-driven virtual digital humans emphasize “human-machine coupling”, which is closer to weak artificial intelligence and more mature. Virtual digital humans are a specific application of artificial intelligence technology and a collection product of multiple technical fields. The predetermined algorithms, rules and computing capabilities and learning capabilities that they run all reflect the intervention and selection of developers and designers. To a certain extent, they are only tools for authors to create works and do not have authorship. Virtual digital humans are not natural persons. In the current era when weak artificial intelligence prevails, there is limited intellectual creation space for artificial intelligence creation results. Even if artificial intelligence generates content with originality and constitutes a specific type of work, it does not belong to virtual digital humans. The real person behind real-person-driven virtual digital humans is an indispensable participating subject. The “performance” made by virtual digital humans is actually a digital projection and digital technology reproduction of real person performance. It is not a performer in the sense of Copyright Law and does not enjoy performer’s rights. When virtual digital humans participate in shooting or act as roles, their behaviors and performances are recorded on a certain medium to form continuous dynamic pictures. They also do not enjoy copyright or producer’s neighboring rights for audiovisual works. Therefore, under the framework of existing copyright legal system , Virtual digital humans do not enjoy copyright or neighboring rights.

Regarding whether digital human images and related videos belong to objects protected by Copyright Law , as well as whether Mofa Company enjoys performer’s rights ,the court held that Ada involved in this case is a real-person-driven virtual digital human , Not real person modeling , That is , It does not correspond to a specific natural person’s digital avatar . The generation process of this virtual image includes creating static three-dimensional images , Modeling with intelligent binding . Static three-dimensional images are driven by real actors (expression , Motion capture , etc.) To show dynamic visualization effects , Virtual Digital Human Ada’s facial expressions And body movements can be presented in a way that fits human body conditions . After releasing Ada’s standardized image , Mofa has combined various industry needs , In line with specific application scenarios for multi-domain commercial use . Combined with work originality requirements , The expression form of Virtual Digital Human Ada draws on human physical form , At the same time , It expresses authors’ unique aesthetic choices And judgments on lines , Colors And specific image design through virtual beautification methods , Constitute works of art . Videos using Ada images constitute audiovisual works And video products respectively . Mofa enjoys property rights And producer rights for these works . Because Virtual Digital Human Ada is driven by real people , Through real-time voice generation And intelligent wearable equipment motion capture , Ada’s monologue , Dancing And other behaviors are not independently created by it , Its performance “Performance” Voice , Expression , Action Etc. Highly restore relevant performances Of people among them Xu XX , It is not based on real person performance A new performance produced . Xu XX meets Copyright Law Performer Relevant regulations in China , As an employee Of Mofa company , It is a duty performance , Combined with written agreement between both parties , Property rights should be enjoyed by Mofa company In performer’s rights .

Regarding whether copyright infringement And unfair competition behavior is established , Hangzhou XX Network Company publishes two infringing videos Behavior meets information network dissemination Behavior constitutive elements , One video constitutes infringement on information network dissemination right Of audiovisual works , Another video constitutes infringement on information network dissemination right Of works Of art , Producer And performer . Hangzhou XX Network Company On its Douyin account Merchant page Service products And recommended products for other merchants Window All involve goods links related to Virtual Digital Human . It provides examples Of displaying Virtual Digital Human Ada in video form , Not simply sharing relevant video content , But there is a purpose Of using Douyin video , Virtual Digital Human Ada For drainage marketing , It deletes information content involving relevant signs Of Mofa company In video And replace it with course marketing information Or own trademark , Plus other Virtual Digital Human names In one video title Marked out , May affect consumer rational decision-making , Thus gaining more business opportunities , Disrupt market competition order , Directly damage Mofa company Commercial interests Of company , Constitute false publicity Unfair competition behavior .

In the end , The court ruled that Hangzhou XX Network Company On its Douyin account Eliminate impact for Mofa company And compensate economic losses (Including rights protection costs ) 120000 yuan .