Hotspots · Analysis

Judicial Practice Standards for Determining Infringement in Short Dramas

In the current booming short drama market, infringement issues are becoming increasingly prominent. Clarifying the criteria for determining infringement in short dramas in judicial practice is crucial for safeguarding the rights and interests of creators and regulating market order. Recently, the author acted as an agent for a series of cases involving infringement of short dramas, and briefly shared common forms of infringement and judicial judgment ideas.

1、 Common forms of infringement

（1） Infringement of original novel copyright

1. "Ronggeng" phenomenon: In online literature creation, "Ronggeng" refers to the gathering of multiple elements and reprocessing, drawing on the wisdom and achievements of others in character design, story plot patterns, and other aspects. It is not equivalent to plagiarism as defined by copyright law and needs to be analyzed on a case by case basis. For example, in the creation of some short dramas, although the character settings are borrowed from popular novels, such as the domineering CEO and Cinderella, if there are unique creations in plot development and character relationship handling, it does not constitute infringement; But if there is a high degree of similarity in key plot points, character relationships, etc., there is a possibility of being identified as infringement.

2. "Free riding" behavior: Short dramas use well-known novel names as the titles of short dramas to attract the attention of original book fans. The essence of this behavior is to gain economic benefits by leveraging the market influence and fan base of the original work, which damages the market space for developing new works based on the original work. If the well-known novel 'Biography of Someone' is directly used as the title of a short drama to attract audiences without authorization, it will be deemed as infringement.

（2） Infringement of Film and Television Copyright

Remaking the plot is a common form of infringement. According to the typical case of Beijing Internet Court, if the short play involved in the case is adapted into a new audio-visual work on the basis of the original work, although the overall picture color and content do not constitute substantive similarity, and the original work picture or accompanying sound is not directly used, it is not authorized to adapt and shoot, which violates the rights of adaptation and production of the original work. For example, if a short drama is a remake of a classic film or television series with a consistent plot framework, similar character relationships, and key plot developments, even if there are differences in the visual presentation, it still constitutes infringement.

2、 Judicial Judgment Approach

（1） Core Principles of Copyright Protection

1. The principle of "separation of thought and expression": Copyright law protects intellectual achievements that are original and can be reproduced in some tangible form, only protecting the specific expression of thought in the work, not the thought itself. In the creation of short dramas, modes such as "rebirth" and "female lead" belong to the category of ideas and are not protected by copyright law; If the specific character settings, plot development, dialogue and other expressions have originality, they are protected. For example, with the same theme of "big female lead", different short dramas have different character growth paths, emotional lines, and conflict settings, and these unique expressions are protected by law.

2. Principle of "substantial similarity" judgment: The judgment of copyright infringement often follows the principle of "possibility of contact+substantial similarity". On the one hand, the accused infringer may have access to the copyrighted works; On the other hand, from the perspective of ordinary observers' overall internal feelings towards the video in question, compare whether the short drama in question is substantially similar to the copyrighted work. Specifically compare multiple aspects such as the main storyline, plot design, development of the story plot, story themes, character settings, character relationships, and dialogue settings. In the case of Gan 10 Zhi Min Chu No. 44 (2022), the accused short drama "A Certain God's Strategy Manual" and the original novel "Esports God's Secret Love for Me" were highly similar in terms of common characters and plot settings. From the perspective of ordinary viewers, it can be judged that there are obvious similarities between the two works. The accused short drama retains the basic expression of the original work and infringes on the adaptation rights of the original novel.

（2） Title protection of works

If the title of a work does not meet the originality standard stipulated in the Copyright Law, it is not protected by the law. However, plagiarism and bundling of well-known works by others, causing confusion and misleading consumers, constitute unfair competition and are regulated by the Anti Unfair Competition Law. The name of a well-known work contains commercial value. Unauthorized use and attachment to existing influence can easily cause confusion among the public, and using the popularity of others' works to increase commercial trading opportunities is considered infringement. In addition, if the rights holder applies for registration of the work name as a trademark, it is protected by the Trademark Law.

3、 Summary of Judicial Practice Criteria for Determining Infringement in Short Dramas

1. Originality determination: The plaintiff needs to prove that their work is original and protected by copyright law.

2. Substantive similarity: It is necessary to prove that the defendant's work is substantially similar to the plaintiff's work in terms of core plot, character design, dialogue, and other aspects.

3. Independent Creation Defense: The defendant must provide sufficient evidence of independent creation, otherwise the defense will not be established.

4. Legal consequences: The infringer shall bear legal responsibilities such as cessation of infringement, compensation for losses, and apology.

Industry · New Policies

Seven cultural administrative regulations have been revised and adjusted

On December 6, 2024, the State Council announced the "Decision of the State Council on Amending and Abolishing Some Administrative Regulations" (hereinafter referred to as the "Decision"), which amended and abolished some administrative regulations, involving seven cultural administrative regulations. The "Regulations on the Administration of Publishing", "Regulations on the Administration of Audiovisual Products", "Regulations on the Administration of the Printing Industry", and "Interim Management Rules for the Printing, Casting and Engraving Industry" have correspondingly modified the types and ranges of relevant penalties, adjusted the amount and calculation method of relevant fines. The Regulations on the Administration of Business Sites for Internet Access Services, the Regulations on the Administration of Radio and Television, and the Measures for the Administration of Internet Information Services have promoted the successful experience of the pilot project of temporary adjustment and application of relevant administrative regulations in the pilot free trade zone nationwide, cancelled some approval items and changed some approval items to filing management.

This time, the State Council has made a centralized revision of cultural administrative regulations related to publishing, audio-visual products, printing, radio and television, the Internet, etc. Through the reform of the approval and punishment system, streamlining administration and delegating power, and standardizing law enforcement, it is conducive to improving the legal level of cultural law enforcement, stimulating the vitality of cultural market operators, further optimizing the business environment, and providing legal guarantee for the high-quality development of the cultural industry.

Announcement on the Tax Policy for the Conversion of Operating Cultural Institutions into Enterprises in the Cultural System Reform

On December 6, 2024, the Ministry of Finance, the State Administration of Taxation, and the Central Propaganda Department issued a notice on the tax policies for the transformation of operating cultural institutions into enterprises in the cultural system reform. In order to further support the development of transformed cultural enterprises, operating cultural enterprises that have been transformed into enterprises can enjoy the following transitional tax preferential policies: (1) Operating cultural institutions that have been transformed into enterprises before December 31, 2022 will be exempt from enterprise income tax from the date of registration until December 31, 2027. （2） Cultural units that receive funding from the finance department and transform into enterprises before December 31, 2022 will be exempt from property tax for their own use from the date of self registration until December 31, 2027. The announcement also provides clear explanations on the "date of transformation registration" for "operating cultural institutions", and imposes restrictions on the conditions for transforming cultural enterprises that enjoy tax preferential policies. Cultural enterprises that have been recognized as transformed shall handle preferential procedures in accordance with relevant tax preferential management regulations and apply for tax preferential policies. Unrecognized transformed cultural enterprises or transformed cultural enterprises that do not comply with the provisions of this announcement shall not enjoy relevant tax preferential policies.

3. The Network Audiovisual Department of the State Administration of Radio, Film and Television has released the "Management Tips (AI Magic Reform)"

On December 7th, the Network Audiovisual Department of the State Administration of Radio, Film and Television issued a "Management Tip (AI Magic Reform)" requiring relevant provincial bureaus to urge short video platforms within their jurisdiction to investigate and clean up short videos of AI "magic reform" films and TV dramas, and provide feedback on the work situation on December 10th. Strictly implement the requirements for content review of generative artificial intelligence, draw lessons from others, conduct self-examination of large models or AI special effects developed on their respective platforms, strictly access and monitor various related technology products used and disseminated on the platform, and provide significant prompts for AI generated content.

4. The Network Audiovisual Department of the State Administration of Radio, Film and Television has issued the "Management Tips (Strengthening the Review of Short Drama Titles)"

On December 20th, the Network Audiovisual Department of the State Administration of Radio, Film and Television issued the "Management Tips (Strengthening the Review of Short Drama Titles)", which timely corrected the negative tendencies of short drama titles and put forward new requirements in terms of guidance, style, art, etc.

In order to timely correct and reverse the deviation tendency of some short dramas in their titles, management prompts are strengthening the review of titles, and new requirements are proposed in terms of guidance, style, and art. Firstly, in terms of direction, it is required that film titles should enhance their ideological connotations, convey mainstream values, and not use titles that violate public order and good customs, such as vulgar and evil tastes. They should not exaggerate extreme opposition, revenge, violence, or anxiety. Secondly, in terms of format, it is required that the title should enhance cultural connotations, be as organized and related to the plot as possible, use the national common language and characters, and not use overly lengthy and colloquial titles. Finally, in terms of art, it is required that the title of the film should enhance its aesthetic connotation, and use metaphors, personification, inversion, contrast, puns, questioning, reduplication and other techniques reasonably and cleverly to enhance its artistic quality, without abusing imitation, homophonic sound, exaggeration and other techniques for parody.