Four Keys of Publications Using Pictures to Avoid Infringement

Publishers need to carefully review the copyright of the pictures they use in order to avoid copyright infringement of the pictures used in the publication. The pictures used in general publications are mainly photographic works and art works. Therefore, the review of the copyrights of these two types of works by publishers has become a magic weapon to avoid infringement.

Find out if the picture is current news

Current affairs news refers to purely factual information reported through media such as newspapers, periodicals, radio stations, and television stations. According to the "Copyright Law of the People's Republic of China", current news does not apply to the protection of the Copyright Law. This is no exception for text works or photo works. In publications of newspapers and periodicals, if the pictures used belong to current affairs news, they are not protected by the Copyright Law; they may not be remunerated without the author’s permission, and they may not be required to sign for the authors, but they must indicate in accordance with the law. The source of the picture is the name of the original unit.

When distinguishing whether pictures belong to current affairs news, attention must be paid to distinguishing them from news works. Because the current law does not clearly define the difference between current news and news work, the academic community is controversial. This makes publishers often have different views on the identification of current news and news works. In this regard, it should first be made clear that current affairs news is also a news item. Second, according to the interpretation of the Modern Chinese Dictionary, “current affairs” is “the recent major events at home and abroad” and “news” is interpreted in the “Ci Hai” as “news agencies such as newspapers, news agencies, radio stations, television stations, etc. Reports of political or social events." This means that the difference between current affairs news and other news works is that current affairs news is the news media’s coverage of “recent period” or “current” domestic and international political or social events. If it is not a "recent" or "current" news report, or if it has exceeded this time limit, it is not news of the current events, but news works.

● Case: The famous photographer Lu Houmin filmed Chairman Mao and Premier Zhou in the 24th meeting of the Central People's Government in 1953. In 2000, the old Chinese brand Beijing Tongshenghe Shoes Store was used as a background in its window display on Wangfujing Street to reinforce its promotional effect of displaying the style of leather shoes ordered for national leaders in the window display. Lü Houmin was found guilty by the court after he was discovered and signed without permission. At the end of 2001, the Beijing No. 2 Intermediate People’s Court held that the behavior of Tongsheng and Shoe Stores constituted infringement, and sentenced them to compensate Liu Yuanmin’s economic losses by more than RMB 10,000. In the process of hearing the case, Tongsheng and the shoe store argued that the pictures in question belong to current affairs news and are not protected by the Copyright Law. However, the court found that the photograph belongs to a news work and is protected by the Copyright Law. Actually, if the photo appears in the media's report to the 24th meeting of the Central People's Government in 1953, it is news of the time. After that, "news" became "old news," and news has ceased to exist. Of course, it is news.

Find out whether the copyright of pictures enters the public domain

The law protects the copyright of a work for a certain period of time. If it exceeds the period of protection, it enters the public domain. When you use it, you may not be paid without the author's permission. Therefore, whether the picture has entered the public domain is a problem that the picture review must make clear.

The Copyright Law stipulates that the period of copyright protection for artistic works created by individual citizens shall be the author’s lifetime and 50 years after his death, as of December 31 of the 50th year after the death of the author; the copyright is reserved for the art of legal persons or other organizations The period of copyright protection for works and photographic works is 50 years. As of the 31st year after the first publication of the work, it has not been published within 50 years. The Copyright Law is no longer protected. From this, it can be seen that reviewing whether a fine art picture has passed the protection period requires the identification of the author's identity, existence, and time of death; reviewing the fine art pictures enjoyed by legal persons and other organizations, especially a large number of photographic pictures, is not only necessary The author's identity, but also pay attention to find out the time of its first publication and whether it has not been published for more than 50 years to determine whether it has passed the protection period. Some publishers often infer their shooting time based on the content of the picture, and then judge the publication time based on their shooting time. This practice is very easy to make mistakes.

● Case: The famous photographer Wu Yinxian had two portrait photographs taken before his death: one was Zhou Yu (1936) and the other was “Across the Eyes – White Poplar” (1937). The two photos were not published at the time. Until January 1981, when Heilongjiang People's Publishing House published the “Wu Yinji Photography Collection (I)”, Wu Laocai brought the photo “Zhou Qi” to the book for the first time. Another photo, “Browsing and seeing - Poplar,” was first published in the “Collection of Wu Yinxian Photographs” published by the Central Literature Press in July 1993. In 2002, Guangzhou Pretty Beauty Company produced the “Early Chinese Movie” series of VCDs. Among them were Zhou Yu’s six films, VCD discs, and the back cover of which was Zhou Yin, shot by Wu Yinxian. The two films, starring Bai Yang, were VCDs. On the left side of the back cover of the outer packaging, Wu Yinxian's "Aspects and Looks - Aspen" was printed. The above VCD series CDs were purchased by Wu Yinqing, daughter of Wu Yinxian, in Shanghai and Beijing during the sales process. As a result, Wu Zhuqing filed a lawsuit in Shanghai First Intermediate People's Court in July 2004, bringing Guangzhou Beauty and its Shanghai sales company to court. After the trial, the court held that: The photograph of Zhou Yi was taken in 1936 and was first published in 1981. It was published within 50 years after the creation was completed and should be protected. The book “Bai Yang” was first published in 1993. It was not published within 50 years after the completion of the filming in 1937 and it cannot be protected under the Copyright Law in accordance with the law. Based on this, the court verdict: The defendant Guangzhou Qiaojiaren Culture Communication Co., Ltd. immediately stopped copying and distributing the photographs of Zhou Yi, and compensated the plaintiff Wu Zhuqing with an economic loss of 18,000 yuan. The mistake in this case was that the review of the two portrait photos was not in place and the exact publication time of the two photos was not carefully ascertained, so that it was not clear which one of the works' copyrights was in the protection period. A work that has entered the public domain is not protected. As a result, due to the fact that the photo of Zhou Yi was also infringed during the protection period, it paid the price.

Find out if the picture needs to be licensed by the copyright owner and whether it has been licensed

The pictures in the publication, except for current affairs news and the two categories that have entered the public domain, are not protected by the Copyright Law, and are protected by the Copyright Law.

For pictures of copyright during the term of protection, in accordance with the statutory licensing system stipulated in the Copyright Law, newspapers and periodicals may use reproduced pictures already published in other newspapers and magazines without the permission of the copyright owner. Therefore, newspapers and periodicals use pictures, should first check whether the pictures belong to other newspapers. If it is published by other newspapers, you only need to use post-payment compensation, and you do not need permission from the copyright owner before using it. If it is not published in other newspapers, it must be approved by the copyright owner, otherwise it will infringe the author's copyright. .

● Case: Special Attention magazine sponsored by Hubei Daily Media Group. In its 12th issue in 2008 and the first issue in 2009, it used 18 of the book “New Translation of Western Humor” published by People’s Liberation Army Press. Comics. By July 2009, Zhang Bin, the comic book copyright owner of the book and the vice president of the China News Comics Research Association, discovered and sued Zhuhai District People’s Court of Guangzhou City, accusing the magazine of not authorizing or signing the magazine and infringing upon it seriously. 18 cartoons copyright. After hearing the case, the court delivered a judgment on April 29, 2010, ordering the defendant to openly apologize to Zhang Bin in a nationally issued newspaper to eliminate the influence and to make a one-time compensation for Zhang Bin’s economic loss of 60,000 yuan. This case tells us that the statutory licensing rights enjoyed by publishers of newspapers and periodicals are limited to works published in other newspapers and magazines. If they expand the scope without authorization, they will download or use the pictures in the published books or on the Internet without permission. It will inevitably cause infringement disputes.

For publishers, it does not enjoy statutory licensing rights. Therefore, when a publisher uses a picture, as long as the copyright of the picture is within the term of protection, it must first obtain the permission of the copyright owner, otherwise it is an infringement.

● Case: In 2007, the 50th anniversary of the death of the famous painter Qi Baishi was also the time when the copyright protection period of his works would soon be cut off. At the end of the year, nine people, Qi Liangli, Qi Liangxuan, and Qi Liangmo, represented hundreds of Qi Baishi descendants. Before January 1, 2008, 24 publishing houses and gold coin production units across the country were brought to court. None of the family units used Qi Baishi’s works in books or gold products without permission from Qi Baishi’s descendants. Among them, Chongqing Publishing House published the book “Qi Baishi Ding Erzhong Zhong Jing Jing Jian Jing Lun to Chu Shi Yin Feng” in 1999. The book used a large number of Qi Baishi carvings without permission, but nobody sought them “trouble”. So, in 2006, they published another book, "The Analysis of Qi Baishi's Classic Printing Techniques," and continued to use Qi Baishi's works in large quantities. However, at the end of 2007, Qi Baishi later brought them to court. They were required to immediately stop the infringement and compensate for the economic loss of 100,000 yuan. For the prosecution of Qi Baishi's later generations, the Chongqing Publishing House argued that: According to the provisions of the Copyright Law, they quoted Qi Baishi's works for the introduction, review, and analysis of Qi Baishi's seal carving art. This is a reasonable reference. , and did not exceed the scope of the appropriate reference. In addition, the cited works were given signatures, objective introductions, and positive propaganda, but they did not vilify the work. However, after hearing the case, the Shenyang Intermediate People's Court held that: "The Copyright Law" stipulates that the proper reference of works of others in works refers to the use of others' works as the basis of their own works in order to create new works and explain new ideas, but cites the works of others. The proportion must be appropriate. In this case, there were more than 300 pieces of works in “Resolve” and more than 560 pieces of works in “Inspired Wind”. The use of Qi Baishi's works in the book is not to create new works, explain new ideas, and does not meet the legal requirements of fair use. . According to this, the court verdict: Chongqing Publishing immediately stopped infringement, and compensated the plaintiff for economic losses and reasonable expenses totaling 113,000 yuan. The other 23 publishers and units that were simultaneously sued with the Chongqing Publishing House were successively judged by the court or reached a mediation agreement under the auspices of the court. In short, a considerable amount of infringement compensation fees have been paid. This Qi Baishi copyright case shows in the most concentrated way that book publishers use the copyright holders' works without permission. Even if they are not prosecuted within 10, 20, or 30 years after use, it does not mean that they will be fine, as long as you It is the use of works within the term of protection, as long as the right holder is within the two-year time limit for the discovery of the infringement, even if it exceeds the last protection period of 50 years after the author's death, he can still sue.

Find out the author of the picture and sign it

According to the "Copyright Law," the pictures used in books, newspapers, and magazine publications, whether they are works of art or photographs, need only indicate the source, except for the author's signature, other types of pictures, Those who have entered the public domain or are legally permitted to use must be signed by the author; if they do not sign their own names, they must apologize for the infringement, and they must also give compensation for spiritual damages.

Nowadays, many publishers are unwilling to authorize the use of pictures. This is wrong. The right of authorship is the author's extremely important personal right. It is an important proof and sign that the author has created the work. The non-signing is a serious violation of the author's copyright, causing the dispute of infringement to be almost certain. As mentioned in the above, Lu Houmin v. Beijing Tongsheng and shoe shop infringement cases and Zhang Bin v. Hubei Daily Media Group “Special Attention” magazine infringement case, their common feature is that none of the author's signature. As a result, infringement costs were paid without exception.

Of course, the relevant provisions of the "Regulations on the Implementation of the Copyright Law of the People's Republic of China" have also made provisions for not authorizing the author, but it is limited to the two situations in which the parties have different agreements or are limited to the use of features that cannot be signed. In fact, these two situations are almost nonexistent in the publication. Therefore, the pictures in the publication should be signed by the author. However, in actual publication work, there are also two cases where the author cannot be signed. This should be done in a special way: First, the author's famous ancient art works, or recent and modern photographs that have entered the public domain, if they cannot be found The author should indicate the author's name to indicate the rigorousness of the editor. The second is the old photographs saved by family or individuals. There are both personal portraits and collective portraits in these photographs; these portraits are taken in photo studios, some are given by acquaintances or friends, and there are still some old fighters or old party members or intellectual families who have fought or worked in the past. In the photo. Because of the age of these photos, and the fact that they did not speak about copyright protection at the time, the photographers were unable to remember or search for them. Now they are using books and periodicals for writing memoirs or publishing biographies. The author's signature. Photographs should be issued by the photo provider to prove the author's name, and indicate in the book, the publication: "For the map: a certain XX."

In short, regardless of books or newspapers, as long as the use of pictures, the author must indicate the name or indicate the source. The practice of neither signing nor notifying the source is certainly not correct and should be corrected as soon as possible.