Audi’s advertising copy was suspected of copying Andy Lau and apologized.
Audi’s advertising copy was suspected of copying Andy Lau and apologized.
Life is full of dissatisfaction with advertisements
On the day of Xiaoman solar term, Audi released an advertising video of Andy Lau telling the story behind Xiaoman and his attitude towards life, but at the same time, it was accused of copywriting plagiarism and caused a heated discussion. On May 22nd, the official channels of Audi completely removed the video, and Audi, the advertising creative agent and Andy Lau himself responded and apologized. So who will bear the tort liability?
Copywriting in big companies also plagiarizes?
"The flowers are not fully open and the moon is not round, and the mid-levels are slightly drunk; Why worry too much about profit and loss, after all, a small one wins. " On May 21st, Andy Lau explained his feelings about Xiaoman in an advertisement with Xiaoman as the theme of FAW-Audi, which won a lot of praise.
However, that night, the blogger "Peking University Man Ge" with millions of fans sent a video saying that this poem was written by him in 2018, which borrowed a famous saying of Zeng Guofan and was first published in the circle of friends in the Mid-Autumn Festival in 2018. Even Audi’s entire copy is the same as his video on May 21, 2021. "Peking University Man Ge" said: I believe that Mr. Liu, who is highly respected, will not come to his short video, rip off his copy word by word, and then send out commercial advertisements, so whoever did it will come out to help him make an explanation.
On May 22nd, "Advertising Plagiarism of Audi Xiaoman" rushed to the top of Weibo Hot Search List. Some netizens commented, "Such a good advertising copy is actually copied, and the advertising company is too bold."
Enterprises and stars apologize one after another.
Subsequently, around 10: 00 on the 22nd, FAW Audi responded through the official Weibo, and noticed that there was a discussion about copywriting infringement in this short video. In this incident, due to poor supervision and lax review, it caused troubles to Mr. Andy Lau, Peking University Man Ge and related parties, and expressed sincere apologies.
The response also explained that the video was submitted and executed by the creative agency M&C Saatchi, and it has been instructed to deal with the infringement of copywriting as soon as possible and give the public a satisfactory answer. At the same time, before the facts are officially clarified, the official channels of Audi will completely remove the video.
At about two o’clock in the afternoon, M&C Saatchi responded that the company’s Audi service team is the video development team of Audi Xiaoman brand. In the process of video content development, due to the weak copyright awareness of the Audi service team, without communicating with the copyright owner, it directly used the copy content of Tik Tok blogger Peking University Man Ge’s video about Xiaoman, which brought great inconvenience and trouble to Mr. Andy Lau, Peking University Man Ge and FAW Audi brand, and sincerely apologized to the original author.
At five o’clock that night, Andy Lau wrote in the official support club APP "Hua Tsai Tian Di" that "I have full respect for originality. This incident, I personally feel deeply sorry for the problems in the creative process of the advertising team and the troubles caused to Man Ge. Audi and advertising companies are now dealing with it seriously. "
It is understood that the video has been praised and forwarded more than 100,000 times on the WeChat video number, and played more than 4.55 million times on Audi official micro. At present, Andy Lau Tik Tok account has also deleted this commercial.
Whose tort liability is it?
However, whether this matter is infringing has also caused some discussion. Some netizens pointed out that this copy is not unique and original of Peking University Man Ge. As early as 2017, a netizen @ You Lin wrote a similar expression about Da Man Xiao Man. She replied: "I wrote it, but I believe it is a discovery that everyone who knows 24 solar terms deeply will have, and it is not an original idea."
With the unremitting excavation of enthusiastic netizens, You Lin is not the original creator of this expression, which appeared in Sina blog as early as 2016. However, people’s research heart is out of control. The phrase "flowers are not fully open and the moon is not full" was quoted by Zeng Guofan in his letter to his younger brother Ceng Guoquan, but it was actually written by Cai Xiang in the Northern Song Dynasty. Netizens can’t help but sigh that they are caught in Rashomon. Does the disputed video constitute infringement, and who is the infringer?
Xu Hao, a lawyer of Beijing Jingshi Law Firm, told Beijing Youth Daily that Peking University Man Ge independently completed the video copy and made it into a short video for publication. The content of his work is original and enjoys copyright according to law.
At present, some netizens question whether Peking University Man Ge owns its copyright. A work protected by the Copyright Law must be original. The word "unique" here does not mean unique, but means that the work was independently created by the author, rather than copying other people’s works. Assuming that two works have been independently completed by different authors, even if their contents happen to be roughly the same or highly similar in substance, they can all generate their own copyrights. For example, for photographic works, two photographers may shoot the same scenic spot successively. Even though the shooting angles and framing contents of the two authors are basically the same, as long as there is evidence, the post-photographer has not seen the works of the previous photographer, but has independently shot the works, and the latter can also enjoy the copyright of his photographic works.
Audi, as an advertisement publisher, entrusted its third-party company to produce short video content, and the third-party company plagiarized the short video copy of Peking University Man Ge. However, Audi, as an advertisement publisher, should conduct a comprehensive review of the advertisement content and fulfill its due care obligation, so it should bear the tort liability. According to Audi’s apology statement, the short-sightedness released by Audi was produced by a creative agency called "M&C Saatchi". As the copyright owner, "Peking University Man Ge" can sue Audi and M&C Saatchi, demanding that they bear tort liability.
Will Andy Lau be excused?
Regarding whether Andy Lau is liable for infringement, Zhao Jingpu, a lawyer of Beijing Dacheng Law Firm, said that when an advertiser completes the design or production of an advertisement according to the requirements of an automobile manufacturer, he will usually stipulate the liability for guaranteeing the defects of intellectual property rights in the advertising production contract of both parties, so as to ensure that the advertiser will bear the liability for breach of contract or compensation caused by the infringement event after copywriting plagiarism happens to a third party, or the automobile manufacturer has the right to recover from the advertiser after taking responsibility. That is to say, whether automobile manufacturers can claim responsibility to advertisers needs to be determined according to whether there is a guarantee clause for intellectual property defects in the advertising production contract between the two parties.
Whether the spokesperson’s interpretation of the advertising copy in this incident is infringement is not clearly stipulated in the Copyright Law, and it does not conform to the relevant provisions of the Advertising Law on the responsibility of the spokesperson. Therefore, it is necessary to judge by the constitutive requirements of general tort liability. From a subjective point of view, if the spokesperson himself is unaware of copywriting plagiarism, he is not liable because there is no intentional infringement. In addition, if the copy provided by the automobile manufacturer is plagiarized and causes losses to the spokesperson, whether the spokesperson can ask the advertiser to bear the responsibility needs to be further judged according to the terms of the endorsement contract signed between the two parties.
Lawyer Ge Shuchun, a member of china law society, added that up to now, Audi’s advertising plagiarism has become a major public opinion field. Browsing the relevant videos, we can find that Andy Lau’s appearance behavior obviously belongs to the copywriter. Since he is a performer, he also needs to take responsibility according to the provisions of China’s Copyright Law, which is also a common view in the legal profession at present. But whether the court will finally judge Andy Lau to take responsibility depends on the contract content of Andy Lau and Audi or the copywriter’s salary for advertising production. If it is finally found out that Andy Lau really doesn’t know about this matter,
Lawyer Ge Shuchun said that many people think that Andy Lau doesn’t need to bear the responsibility because he doesn’t know about plagiarism. "But I think that even if Andy Lau really doesn’t know the real situation, his behavior as a performer still infringes the performance right of the original author’s copywriting, and he needs to bear the civil liability to stop the infringement with the cooperation of the advertising copywriting company and Audi."
interlinkage
Using other people’s works as subtitles and recording short videos constitute infringement.
Company A was authorized to obtain the information network communication right and the right to defend rights of the written work "Lan Moumou, who was once a smash hit, was unknown at home, and wrote all his life about impermanence and coldness", and published the work on a platform on November 3, 2018. On November 9, 2018, Company B’s platform account "So-and-so said entertainment" released a short video of the same name without authorization, with a duration of 1 minute and 11 seconds. By comparison, the short video subtitles are basically the same as the 329 words in the text works.
Company A believes that Company B has spread the short video involved in the case to the public through the Internet without authorization, which infringes on the right of information network dissemination of the works involved, and requests the court to order Company B to compensate for economic losses and reasonable expenses totaling 20,000 yuan.
After trial, Beijing Internet Court held that Company B used the contents of four natural paragraphs of the work involved in the case in short video subtitles through its operating account, so that users could obtain the work at their chosen time and place, which infringed on the right of information network dissemination enjoyed by Company A..
On September 30, 2020, the court of first instance ruled that Company B compensated 500 yuan for the economic loss, and the notary fee was 1,720 yuan. After the verdict was pronounced in the first instance, neither party appealed, and the verdict in the first instance came into effect.
The court clearly pointed out that the use of other people’s works as subtitles in short videos without authorization and other legal reasons constitutes copyright infringement and should bear tort liability. The trial of this case further enhanced the awareness of short video producers on intellectual property protection and made them clearly realize the importance of using other people’s works in short videos according to law.