Yang Liping Information Technology Development Co., Ltd. (hereinafter referred to as "Yang Liping Company") enjoys the copyright of Moonlight series chreographic works (hereinafter referred to as "the works involved") of the famous Chinese dancer Yang Liping. It found that the works involved were used without authorization on screens, wall paintings and partitions in the "Mystic South" restaurant (hereinafter referred to as "the restaurant involved"). Moreover, the above-mentioned behavior makes the relevant public mistakenly believe that there are specific connections between the restaurant involved and the artist Yang Liping herself, which may involve commercial association and advertising endorsement, hence confusing the relevant public. The operators of Mystic South were thus sued to court on the grounds of copyright infringement and unfair competition. 

The court of first instance found that the defendant infringed the right to copy the works involved and the right to disseminate information on the Internet, which constituted copyright infringement. However, the plaintiff's claims, including unfair competition, lacked factual and legal basis, and were thus rejected. The defendant refused to accept the ruling and appealed to Beijing Intellectual Property Court. 

Beijing Intellectual Property Court reached the second-instance judgment recently on the plaintiff's proceedings against Beijing Xinzheng Yicheng Catering Management Co., Ltd., Mystic South (Beijing) Catering Management Co., Ltd. and its store at Shijingshan Wanda Plaza (hereinafter referred to as "Mystic Soutch Company"), and corrected the relevant decisions of the first-instance judgment as below.

(I) Regarding the scope of protection of the works involved 

The Court of first instance held that the works involved created the silhouette effect of human body through the contrast of light and shade. With the cooperation of light, choreographic design, clothing, music and other elements, dancers made dance movements to demonstrate the beauty of body curves, which reflected high originality and artistic value, and belonged to dance works stipulated by the Copyright Law. 

The court of second instance held, on the other hand, that the dance works refer to works that express thoughts and feelings through continuous movements, postures and expressions. The originality to be protected should be reflected in the continuous "movement", "posture" and "expression" of limbs, while the dancers' makeup, background lighting, music and so on are mainly used to set off the stage atmosphere and serve the performance needs, which cannot be regarded as the objects of copyright protection. Therefore, the court of second instance corrected the ruling that "the dance movements and postures of stage performances and the presentation effects of lighting, choreographic design, clothing, music and other elements are recognized to fall into copyright protection as a whole". 

(II) Whether the decorative patterns of the restaurants involved infringe the right to copy the works involved

The court of first instance held that: although the decorative pattern of the restaurant involved was static and discontinuous, which was different from the form of the objective expression of the dance works involved, the originality of the dance works was reflected in the design and collection of each dance posture, and each dance posture was an important part of the originality of the dance works. 

The court of second instance held that the single movement that human beings can design in dance creation is limited, and as the most basic element of dance creation, a single choreographic posture should not be monopolized by anyone. The restaurant involved used four independent postures of different parts of the works involved in different positions, but did not line up said postures into decorative patterns in continuous relationship, while a small number of individual dance movements which are not coherent with each other cannot serve as the evidence to meet the originality requirements of dance works, so the judgment of "infringement on right of reproduction" by the court of first instance should be corrected. 

(III) Whether the use of said postures constitutes unfair competition

Yang Liping Company has a competitive relationship with Mystic South Company. Also, the silhouette effect in the works involved has formed a distinctive artistic image, and has gained high popularity and recognition in the whole country, which can be associated with Yang Liping herself with a contribution to its high commercial value, making it a typical commercial logo of the works involved and even a personal signature of Yang Liping, and guaranteed that all said postures as the rights and interests that can be protected according to the Anti-Unfair Competition Law. 

The restaurant involved mainly serves cuisine of Yunnan specialty. The decorative patterns are highly similar to the typical performance images of Yunnan ethnic minorities in the works involved. It is easy for consumers to mistakenly believe that there is a licensed use or advertising endorsement relationship, and Yang Liping Company also submitted evidence to prove that consumers do have confusion on such "specific connection". Therefore, the unfair competition behavior of Mystic South Company was established according to Article 6.4 of the Anti-Unfair Competition Law (2017). 

With a thorough consideration on relevant factors, although the first-instance judgment improperly identified the nature of the behavior, the amount of compensation determined was basically in line with the actual situation, so the appeal was rejected and the original judgment was upheld, namely, Mystic South Company shall compensate Yang Liping Company 80,000 yuan for economic losses as well as reasonable expenses totalling 21,754 yuan.