From the explosive sales of derivative products such as "China's Bizarre Tales" and "Deep Sea", to the crowdfunding of over 100 million yuan around "Wandering Earth 2", and then to the massive sales of 30 million yuan around TV dramas "Long Moon Ashes" and "Lotus Tower", in recent years, film and television derivative products have frequently become popular and continue to be hot. Especially Tencent's "Grass Field Mall", Alibaba's "Produce New Products", Youku's "Youku Buy", iQiyi's "Member Selection" and other platforms focus on selling film and television derivatives, and sales are also increasing day by day. Many people have turned their attention to the development of film and television derivatives. So can film and television derivatives be developed if you want to? What kind of authorization is needed?

1、 The concept of film and television derivatives

Film and television derivatives can be broadly and narrowly defined. Broadly speaking, film and television derivatives include two categories: derivative works and derivative products. Derivative works refer to the adaptation and performance of existing film and television works to create new works, such as using plot design in film and television works to develop related game works or sequels; Derivative products generally refer to products that develop and commercialize elements such as characters, scenes, props, clothing, logos, etc. in movies and TV dramas, including toys, stationery, clothing, accessories, gifts, daily necessities, souvenirs, audio and video, books, themed restaurants, theme parks, etc. Derivative works involve the issue of secondary adaptation to form new works that enjoy copyright. The film and television derivatives discussed in this article refer to the narrow category of derivative products.

2、 The relationship between film and television derivatives and film and television works

The biggest difference between film and television derivatives and ordinary products is that their value, in addition to their commercial value as products, is also derived from the artistic value and brand value of film and television works. The development of film and television derivatives will inevitably use some elements with intellectual property rights in film and television works, and the sales and profits of film and television derivatives mainly rely on the popularity and influence of the film and television works. The commercial value and benefits that can be brought by the derivative value of film and television derivatives should largely belong to the relevant rights holders of the film and television works. If one wants to produce and sell film and television derivatives, authorization from the relevant rights holders of the film and television works should be obtained. Unauthorized use may constitute infringement.

3、 The authorized entities for film and television derivatives are complex and diverse

If developing film and television derivatives, at least authorization from the copyright owner or other relevant rights holders of the film and television works should be obtained. However, in practice, the elements of film and television works and related rights holders are complex and the boundaries of rights are easily blurred. Developing different film and television derivatives may require obtaining authorization from different rights holders, and determining a legal authorization subject becomes a prerequisite for obtaining authorization. The following briefly analyzes how developing different types of film and television derivatives may require obtaining authorization from different subjects.

1. The copyright of film and television works may be enjoyed by multiple parties

Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Copyright stipulates that "a natural person, legal person, or non legal person organization who signs their name on a work or product shall be deemed to be the right holder of copyright and rights related to copyright, except for those with contradictory proof." However, in the film and television industry, there are many units that sign their names on film and television works, and the signatures are also diverse, such as production units, joint production units, chief production units, filming units, joint production units, joint production units, honor production units, chief production units, etc. It is difficult to determine the true copyright owner, and there may also be situations where they are divided or enjoyed by multiple subjects. It is necessary to investigate the contract documents and actual signatures involved in the film and television works. Conduct a detailed analysis of the situation.

Generally speaking, joint investment in the production of film and television works is a significant cooperation matter, and the parties involved will sign a written cooperation agreement, which will clearly stipulate the ownership of the copyright of the film and television works. In judicial practice, if there is a copyright dispute over a film or television work, the court generally relies on the ownership of the copyright agreed upon in the contract between the parties.

If there is no agreement or unclear agreement on the copyright of the film and television works produced through joint investment, it is necessary to analyze the actual authorship of the film and television works. According to Article 10.4 of the "Guidelines for the Trial of Copyright Infringement Cases" released on April 20, 2018, in judicial practice, the copyright owner will be determined based on the ownership information clearly indicated on films, TV dramas, and other film and television works, such as clearly indicating that "the copyright belongs to a certain unit" or "a certain unit enjoys the copyright of this work", etc; If the ownership information is not clearly indicated, the production unit with the signature at the beginning or end of the film can be recognized as the copyright owner; If there is no signature of the production unit, the filming unit (or production unit) with the signature can be recognized as the copyright owner.

Therefore, the ownership of copyright in film and television works belongs to freely negotiable content, and there are various situations in practice, such as being divided or enjoyed by multiple parties. The primary requirement for developing film and television derivatives is to obtain authorization and permission from the copyright owner of the film and television works.

2. There are many works in film and television that can be used independently, and the copyright owner of these works has the right to exercise their copyright independently

Article 17 of the Copyright Law of the People's Republic of China (2020 Amendment) stipulates that authors of works such as scripts and music that can be used independently in audiovisual works have the right to exercise their copyright independently. In addition to scripts and music, there may also be other works that can be used independently in film and television dramas, such as character images, props, clothing, decorations, architecture, and other elements in animated films. These elements are combined through lines, shapes, colors, and other artistic elements to form specific and fixed shapes, which may constitute artistic works; For example, if the character images in a live action film or television series are designed by a character stylist and have a certain degree of originality, they may also constitute a work.

If the development of film and television derivatives requires the use of elements that can be used separately in film and television dramas, in addition to obtaining authorization from the copyright owner of the film and television work, authorization from the copyright owner of the separately used work must also be obtained. Of course, many visionary filmmakers have signed commissioned creation agreements with creators of scripts, music, art design, and styling design from the very beginning, stipulating that the copyright of scripts, music, art design, and styling design belongs to the filmmakers.

3. Some elements in film and television works are derived from the original work, which may require authorization from the copyright owner of the original work

Special attention should be paid to the development process of derivative products. The copyright of elements in film and television works does not necessarily belong to the copyright owner of the film and television works. If the film company only obtains the adaptation and filming rights of the original work from the original author, and does not explicitly agree to obtain the derivative development rights of certain elements, it may lead to the risk that the rights of certain popular elements have already been authorized by the original author to a third party during the derivative development process, or it may be difficult to obtain fair prices when negotiating authorization with the original author during the derivative development stage.

If the film producer fails to clearly obtain the right to develop derivative products, or is not aware that they do not have the right to develop derivative products related to certain elements, they may face the risk of infringement when developing film and television derivatives. For example, if the production company only obtains the right to adapt and film a certain work for a TV drama, and then develops toy derivative products based on a certain prop in the TV drama, and the design of the props in the TV drama is completely based on the description in the script, rather than the company's new creation, the production company will face the risk of unauthorized use.

4. If film and television derivatives related to the image of the participating artist are used, it may involve the artist's portrait rights

The most common character image derivatives in film and television are even more complex. When developing elements of real character images, it may involve the rights of the actor's own portrait, the rights of the character designer, the copyright of the screenwriter (original author) who created the character, the copyright of the film and television series, and so on.

In this case, the cooperation agreement between the film producer and the participating artists in the film and television works should not only stipulate that the film producer has the right to use the artist's portrait for project promotion, but also further clarify that the film producer has the right to use or authorize third parties to use the artist's portrait for derivative product development. For example, in the development of derivative products, it is often involved in the development of figurines and dolls of characters in live action film and television works, while the figurines and dolls of performers use the portraits of actors. Unauthorized use will constitute infringement of portrait rights.

In summary, the development of film and television derivatives requires authorization from the relevant rights holders of the film and television works to ensure the legal and compliant use of intellectual property elements in the film and television works. Good content and legal authorization are the key to the healthy and long-term development of the film and television derivative industry.