As everyone knows, if a film and television company wants to adapt a literary work into a film and television drama, it needs to obtain the authorization of the copyright owner of the literary work, which is called "film and television adaptation rights" in the industry. However, if the license period for film and television adaptation rights has expired or is about to expire, and the film and television company as the licensee is still in the process of script adaptation and creation, or has just started shooting work, and cannot complete the film and television production work before the expiration of the license period, will the licensee continue to engage in film and television production after the expiration of the license period constitute an infringement?

As for the above issues, there have been many disputes in the film and television industry, especially the current COVID-19, which is one after another, and the situation is grim, and it is often the case that various non-human factors delay the progress of film and television projects. "Overdue filming" may seem like a simple licensing issue, but further analysis based on the characteristics and laws of the film and television production industry will reveal that it also involves issues such as the boundaries of adaptation rights and the balance of copyright interests.

1、 Main theoretical viewpoints existing in the industry

One view is that when the authorization expires, it means that there is no authorization. At this time, engaging in filming and production activities constitutes an infringement, and civil liabilities such as stopping the infringement and compensating for losses should be borne.

Another view is that the licensee begins to engage in filming during the licensing period, and this behavior is bound to continue for a period of time. This continuing behavior cannot be considered an infringement because the filming has not been completed at the expiration of the licensing period.

The third view is relatively eclectic. On the one hand, it believes that continuing to engage in filming after the expiration of the license constitutes infringement; On the other hand, considering that the licensee has invested a certain amount of human, material, and financial resources, ordering it to stop filming may result in an imbalance of interests and a waste of resources. Therefore, it is not appropriate to order it to stop filming, but the licensee must bear corresponding compensation responsibilities for the infringement.

2、 Relevant judicial practice

In judicial practice, the court will generally make different determinations on whether "extended filming" infringes the law based on the actual situation of the case it is trying and the specific circumstances of the evidence provided by each party.

"If shooting beyond the authorized period constitutes infringement, the filming and production of film and television dramas should be stopped."

Take the case of copyright ownership and infringement dispute between Khorgos Kaidexin Film Co., Ltd. (hereinafter referred to as "Kaidexin Company") and Beijing Haima Qingfan Entertainment Technology Co., Ltd. (hereinafter referred to as "Haima Qingfan Company") ((2020) Jing 0105 Min Chu 11070) as an example. In this case, the court held that, according to the provisions of the relevant contract, Zhulin Image Company (the partner of Haima Qingfan Company) has the priority to adapt "Men's School Tofu Shop" (hereinafter referred to as "the novel in question") for one year from October 27, 2016 to October 26, 2017. After Zhulin Image Company pays any or all of the basic royalties for the project, it has the right to obtain the exclusive filming rights for any or all of the projects from the payment until October 26, 2019 The right to reproduce, distribute, modify, and adapt. However, in this case, Haima Light Sailing Company has no evidence to prove that Bamboo Image Company paid any royalties to anime Company (the authorizer of the adaptation right), and anime Company has the right to re authorize the novels involved in the case according to the contract. Moreover, Haima Qingfan Company has implemented the adaptation behavior far beyond October 26, 2017. Its use of the novel involved in the case to adapt, film, and promote online dramas is an infringement of the copyright of Kaidexin Company. Finally, the court ruled that "the defendant, Beijing Haima Qingfan Entertainment Technology Co., Ltd., immediately stopped using the novel" Men's School Tofu Shop "to adapt the online drama" We Are Such Men's Tall ", and stopped the post production, distribution, and promotion of the online drama."

The author believes that the above judgment made by the court in this case has comprehensively considered various factors, not just due to the single reason of "overdue filming".

First of all, the defendant Haima Qingfan Company did not provide evidence to prove that the Bamboo Image Company paid any royalties to the anime Company, so the Bamboo Image Company should have lost the priority of adaptation as of October 16, 2017, and Haima Qingfan Company, as the partner of the Bamboo Image Company, naturally did not have the right of adaptation.

Secondly, the defendant, Haima Qingfan Company, released a student recruitment announcement on August 21, 2019, indicating that the shooting date of Haima Qingfan Company was September 2019. That is to say, Haima Light Sailing Company did not start filming before October 16, 2017, but started filming nearly two years after the expiration date.

Again, on November 6, 2019 and February 12, 2020, the plaintiff, Kaidexin Company, applied for the filing of the online drama "We Are Such Men Tall!" to the Beijing Radio and TV series, and obtained the production license (Jing) Zi No. 14947. The filing information shows that the online drama is adapted from the novel involved. As of the lawsuit in this case, "We Are This Male High!" has been filmed.

" Subject to contractual agreements, shooting beyond the authorized period does not constitute infringement."

Take the case of Ma Mou suing Fengyi (Inner Mongolia) Film Co., Ltd. (hereinafter referred to as "Fengyi Company"), Fengyi Cultural Entertainment Group Co., Ltd., Khorgos Fengyi Film Co., Ltd. for copyright ownership and infringement disputes ((2021) Jing 0105 Min Chu 42889). In this case, the court held that the authorization contract stipulated that the adaptation period of the novel involved was five years, with the expiration date of June 30, 2020. At the same time, the contract also clearly stipulates that if Fengyi Company starts filming within the authorization period, it can continue to use the adaptation rights, performance and filming rights of the novel involved after the authorization period expires until the corresponding film production is completed and released on the market. Film and television adaptation is different from the creation of written works. After entering the official start-up stage, it involves a large amount of human and material investment, and there are also uncertainties in the distribution process of film and television works. If a fixed deadline is strictly limited, it may objectively occur that film and television works that have already invested a large amount of production costs cannot be released normally, and the licensee pays a large amount of production fees and cannot obtain corresponding distribution income normally, Therefore, the explicit agreement between the two parties that the works can be used after being started for shooting within the time limit is a protective agreement for the licensee of the works based on respecting the basic laws of film and television works creation. Finally, the court made a judgment "rejecting all the litigation claims of the plaintiff, Mr. Ma.".

From this case, a film and television company can gain a very important experience. In the relevant copyright license agreement, it is best to explicitly stipulate: "If the film and television company starts shooting within the license period, after the license period expires, the film and television company can continue shooting, post production, publicity, distribution, and broadcast of the film and television work, without being limited by the license period." Similar clauses such as "late shooting" can avoid the risk of infringement caused by "late shooting.".

"If shooting beyond the authorized period constitutes an infringement, corresponding compensation liability shall be borne for the infringement, but the shooting can continue."

Beijing Memory Square Cultural Information Consulting Co., Ltd. (hereinafter referred to as "Memory Square Company") is sued against Perfect Space Time (Beijing) Film Television Culture Co., Ltd., Beijing Amethyst Spring Culture Communication Co., Ltd. (hereinafter referred to as "Amethyst Spring Company"), Haining Xindingming Film Television Culture Investment Management Co., Ltd., Beijing Junshe Culture Media Co., Ltd., Guangsha Media Co., Ltd., Khorgos Ledao Mutual Entertainment Culture Media Co., Ltd Guangdong Shengge Media Co., Ltd. (hereinafter referred to as "the seven defendants") and other copyright ownership and infringement disputes are examples ((2016) Jing 0101 Min Chu No. 6846). In this case, the court held that:

(1) Continued filming constitutes infringement. From the perspective of the purpose for which the license agreement was signed, the defendant Zijingquan Company obtained the right to adapt and film the novel in question by paying royalties, with the purpose of filming the novel in question as a film and television drama. This means that the rights of adaptation and production stipulated in the agreement control a series of acts involving the use of the novel involved in the shooting of the film and television series. Therefore, the seven defendants need to complete all film and television drama production activities such as adapting the script and shooting TV dramas within the time limit agreed in the agreement, otherwise it will constitute infringement. Moreover, the exercise of filming rights includes not only the shooting stage, but also the post production stage. Therefore, even if the seven defendants completed the filming within the agreed time limit, the post production activities that were not conducted within the agreed time limit still violated the filming rights of Memory Square.

(2) "We do not support the application of Memory Square Company to stop infringement, but we require the seven defendants to compensate.". In this case, due to the complex system engineering involved in the production of the teleplay, its initiation means a large amount of capital investment and human effort, and the teleplay in question has already been filmed and has entered the release stage. If the seven defendants were ordered to stop the subsequent promotion, distribution, and broadcast of the teleplay in question, it would cause a significant imbalance of interests between the parties involved, and would cause a waste of cultural resources, which is contrary to the social and public interests, Therefore, taking into account the factors on file, our court does not support the request of Memory Square Company to prohibit the seven defendants from promoting, producing, filming, and broadcasting the TV series involved, but the seven defendants still need to bear corresponding liability for compensation for their infringement. As for the amount of compensation, Memory Square Company claims to refer to the license fee agreed in the license contract submitted by it for determination.

Finally, the court ruled that the seven defendants "jointly and severally compensate the plaintiff Beijing Memory Square Cultural Information Consulting Co., Ltd. for economic losses of 500000 yuan; reject other litigation claims of the plaintiff Beijing Memory Square Cultural Information Consulting Co., Ltd."

The author believes that the judgment result of this case is of great significance for industry guidance. It comprehensively considers various factors such as the characteristics and laws of the film and television production industry, the boundaries of adaptation and production rights, and the balance of copyright interests. It not only protects the legitimate rights and interests of the copyright owner, but also achieves the fundamental purpose of all parties signing the adaptation rights licensing contract; It not only balances the rights and obligations of all parties, but also meets the needs of social and public interests to a certain extent.