Reading Summary - Substantial Similarity Judgment in Copyright: Insights from Jin Yong v. Jiangnan Case
The “Substantial Similarity” Judgment in Copyright: A Review from the Jin Yong v. Jiangnan Case Introduction
Concept of "Substantial Similarity": An imported and relatively new concept in China's Copyright Law.
Issue: Lack of a unified standard in judicial circles, leading to subjective interpretations by judges.
Purpose of Paper: To unify the legal connotation of "substantial similarity" and clarify its judgment using the Jin Yong v. Jiangnan case as a starting point.
The Jin Yong v. Jiangnan Case: Dispute Focus
Case Details: Zha Liangyong (Jin Yong) v. Yang Zhi (Jiangnan) copyright infringement and unfair competition dispute, heard on April 25, 2017, in Guangdong.
Widespread Attention:
Parties: Jin Yong is a famous martial arts novelist; Jiangnan is a benchmark figure in literature.
Significance: Regarded as "The first case of domestic fan work," expected to set a precedent for regulating future fan works.
Plaintiff's Claim (Jin Yong):
Defendant Jiangnan copied classic characters from "Legends of the Condor Heroes" (names, relationships, personality traits) without permission.
Same plots were tailored in different environments.
Original characters were adapted without authorization.
Defendant's Argument (Jiangnan):
Significant differences exist in "There They Were" compared to plaintiff's work in terms of work type, theme, historical background, character appearance, character relationships, story structure, and storyline.
Did not use original expressions from plaintiff's works, thus no substantial similarity.
Focus of Dispute: Whether the similarities in character relationships, traits, and storyline in "There They Were" constitute "substantially similar" in the copyright sense, which directly determines infringement.
Historical Traceability and Legal Connotation of "Substantial Similarity"
Origin in the US:
First appeared in 1914 in Chautauqua School of Nursing v. National School of Nursing (New York District Court).
Referred to again in 1935 in Echevarria v. Warner Bros. Pictures, Inc., et al. (District Court of Virginia in California).
Lacked clear definition, prompting Professor Nemo to call it "one of the most difficult issues in copyright law."
Explanation in Arnstein v. Poter (1946): Judge Frank explained it as detecting whether the defendant plagiarized a "large amount of music that the general amateur listeners like from the plaintiff’s work," leading to misappropriation of protected works.
This established the "ordinary observer" as the subject of judgment but avoided a positive definition.
Interpretation of "Substantial Similarity":
Refers to the identity or similarity of the substantive parts between works.
The "substantive part" is not dependent on proportion; even a low proportion can be substantial.
Situation in China:
No unified introduction in theoretical circles, yet judges often quote it in practice.
Example: In Jin Yong v. Jiangnan, the Guangzhou Tianhe District People's Court stated that abstract form similarity (character name, relationship, traits, storyline) that doesn't lead to identical or similar reader appreciation does not constitute substantive similarity.
Conclusion: Concept remains unclear in China's judiciary, often based on subjective feelings.
Defining the "Substantive Part":
Often mistakenly considered "similarity of the main part of the work." Infringement occurs only if a substantial part is copied.
Example: In Jin Yong v. Jiangnan, character names, personalities, and relationships are customary novel expressions and should not automatically be deemed infringement if similar.
Legal Meaning: "Substantial similarity" is a conclusion reached when copyright infringement is established.
Behavioral Level: Means the defendant's work is identical or similar to the original expression of the plaintiff's work.
Crucial Point: The substantive part of the work is the original expression of the plaintiff.
Incorrect View and its Implications:
The view that any similarity to the plaintiff's work, regardless of originality, constitutes infringement is incorrect.
Applying this view would deem all fan works infringing, discouraging creativity, contrary to copyright law's purpose.
Two Types of "Substantial Similarity"
Professor Nemo's Classification: Fragmented Literal Similarity and Comprehensive Non-literal Similarity.
Requirement: The existence of these similarities alone does not necessarily lead to "substantial similarity"; specific statutory conditions must be met.
A. Fragmented Literal Similarity
Definition: Several identical or similar pieces between works (e.g., sentences/paragraphs in text, partial pictures in art).
Sub-types: Synonymous substitution similarity and sentence-by-sentence similarity.
Key to Determination: Proportion and quality of similar parts in the original works.
When expressions are identical: Constitutes "substantial similarity" if the part belongs to the original expression of the original work.
When expressions are only similar: Judgment requires combining the original work's attributes and originality.
Specific Considerations:
Compilation Works: Low creative space requires very high similarity (even close to identical) for "substantial similarity."
Literary Works: Richer expressions synonymous substitution should still be regarded as "substantial similarity."
Originality: Lower originality of similar parts usually means no "substantial similarity"; if a similar part is core content, it should constitute "substantial similarity."
Alternative Spaces: The more expressive means for the same meaning, the lower the quality and quantity requirements for similar parts in substantial similarity; conversely, requirements are higher.
B. Comprehensive Non-literal Similarity
Difficulty: More challenging to judge than fragmented literal similarity, often seen in deductive works, compilation works, computer programs, and fan works.
Reason for Difficulty: Most such works lack identical specific expressions or similarity lies in public domain elements.
Judgment Process:
Determine the scope of the similar part of the work.
Exclude parts belonging to "thought."
Remove parts belonging to the "public domain."
Compare the remaining part: If it's an original expression and the accused work shows identity or similarity in this part, then "substantial similarity" is constituted.
C. Judging Requirements of “Substantial Similarity”
1) "Substantial Similarity" is the Similarity of the Original Expression in the Work
a) Protection is for expression, not thought:
When judging, the object of copyright protection must be clear, excluding "thought."
Example: In Qiong Yao v. Yu Zheng, the court considered the organic combination of character setting, plot structure, and internal logical relationships as protectable expression. Abstract elements like novel concepts or language styles are not protected.
b) The expression of protection needs to be original:
Originality is key to determining "substantial similarity"; it's a value judgment of the work's originality.
Only original expression restricts others' behavior.
2) "Substantial Similarity" in Fragmented Literal and Comprehensive Non-literal Similarity Cases
Constitutes "Substantial Similarity" if: The plots and sentences are obviously similar, or the work connected by plots is generally similar.
Example: In Zhuang Yu v. Guo Jingming, the court found numerous obviously similar plots and expressions that couldn't be explained by coincidence.
Does NOT Constitute "Substantial Similarity" if: The subject matter, theme, and thought are similar, but there are significant differences in the specific plot arrangement and details.
Example: In Cai Xin v. Rui Century (Dongyang) Film and Television Media Co., Ltd., despite a similar love story and workplace intrigue theme, significant differences in specific plot arrangement and details led to no "substantial similarity."
Comments on Jin Yong v. Jiangnan Case
A. Comparison of Personality Traits and Relationship Between Characters
Personality Traits: "There They Were" and Jin Yong's works share traits like "smart," "arrogance," "sincere and honest," and "helping others."
However, their specific expressions in fragments are completely different.
Legally, "substantial similarity" requires identity or similarity to the original expression of the plaintiff's work, which is absent here.
Therefore, it does not constitute "substantial similarity."
Relationship Between Characters: This falls under comprehensive non-literal similarity.
Public Domain Exemption: Relationships like parents, teachers, students, and couples belong to the public domain.
Expression Formation: To form protectable expression, these relationships must be combined with a corresponding storyline.
Conclusion: The similar relationships complained of do not constitute "substantial similarity" in the copyright sense.
B. Comparison of the Storyline
Example: Guo Jing and Huang Rong's First Acquaintance:
"There They Were" description: Huang Rong accidentally met Guo Jing while avoiding a "dangerous hand," used his honest nature to ask for favors, and was moved by his trust.
"The Legend of the Condor Heroes" description: Huang Rong avoided a shopkeeper, encountered Guo Jing, tested him, and was deeply touched when Guo Jing agreed to her requests out of pity.
Analysis:
Abstract Plots: The abstract plots are similar (accidental encounter, mutual affection).
Lack of Specific Expression/Originality: These abstract plots do not constitute specific expression in the original works and are common tropes in novels, lacking the conditions for originality.
Differences in Details: There are significant differences in the promotion methods and specific details of plot development.
Conclusion: Cannot constitute "substantial similarity."
Summary of Jin Yong v. Jiangnan Case
Although "There They Were" shared similarities in personality characteristics, character relationships, and story plots with Jin Yong's works, these similarities did not meet statutory conditions.
Factors such as similarities belonging to the public domain or not being part of the original expression of the original works prevent them from being considered "substantially similar" in copyright law.
The similarities found are merely abstract form similarities.
Conclusion
Works can exhibit two main types of similarity: fragmented literal similarity and comprehensive non-literal similarity.
The presence of these similarities alone does not guarantee "substantial similarity."
"Substantial similarity" requires meeting specific statutory conditions.
It refers to the identity or similarity of the substantive parts between works.
Crucially, the substantive part is defined as the original expression of the defendant and the plaintiff's works, specifically excluding elements that are within the scope of thought or belong to the public domain.