Beijing IP Court has recently published a decision about the infringement of copyright of the reproduction of the storyline and composition layout of three volumes of picture books written by Maurice Willems (Pen Name Mo Willems).

Mr. Willems is an American author famous for children's books. He brought proceedings against Shanghai Nasreddin Cartoon Art Co., Ltd. (Nasreddin Co.), Fudan University Press Co., Ltd. (Fudan Press) and in year 2019 to Beijing City Chaoyang District Court, and claimed for compensation of 500,000 yuan.

Beijing City Chaoyang District Court ruled in favour of Mr. Willems and decided that the defendants, Nasreddin Co. and Fudan Press, should compensate Mr. Willems 200,000 yuan. Then Fudan Press appealed to Beijing IP Court, and the Beijing IP Court upheld the first instance decision.

This copyright dispute is about one of Mr. Willems' most famous book series "Elephant and Piggie", which are written in a conversational style with features of two friends, Elephant and Piggie. The book "There is a bird on your head!" and "Today I will Fly" are published in the US in 2007. The book "We are in a book!" is published in the US in year 2010. In all three books, there is copyright claim "Text and illustrations copyright © by Mo Willems". The books "There is a bird on your head!" and "Today I will Fly" are published in China in 2009 by Jieli Publishing House, and in 2016 all three volumes of books are published by New Star Press.

In 2015, Fudan Press has published three volumes of disputed books with signature of "Drawing and Editing by Nasreddin Co., Ltd." which is also written in a conversational style. These books are about two cartoon characters, Nasreddin and his donkey.

Nasreddin is a fictional character and its stories are told in a wide variety of regions since the twelfth century. Nasreddin Co., Ltd. is an animation company registered in Shanghai. However, the contents in the disputed books edited by Nasreddin Co., Ltd. are not about the legendary Nasreddin, but is the Chinese translation of Mr. Willems' picture books. Thus, this is not a case in which it is alleged that a book is duplicated, the case is rather that aspect of the plot, storyline and composition layout.

The three disputed points of this case are:

  1. Whether Mr. Willems enjoys the copyright of the disputed book;
  2. Whether Fudan Express, Nasreddin Co. and have constituted a breach of copyright;
  3. How to confirm legal responsibilities.

For the first point, both China and the US are members of "Berne Convention" and "TRIPS Agreement" which includes the principle of national treatment, and thus as an American citizen, Mr. Willems has the right to request to use Chinese copyright law to protect his rights in China.

As for determining the prior copyright of Mr. Willems, the court held that a work can be protected by copyright law when its expression has a high level of originality. The Court concluded that the drawing and writing in the disputed books complement each other to tell different storylines. Such expressions shows the author's unique creative judgment and choice, and the possibility of reproduction in tangible form. In the absence of evidence to the contrary, the court found that the books to which Mr. Willems claimed rights are works should be protectable by Chinese Copyright Law.

For the second point, the general principle for determining copyright infringement is "possibility of contact + substantial similarity" which should also be adopted by the Court for this case. For the possibility of contact, the corresponding Chinese version of books "There is a bird on your head", and "Today I will fly" are published in China in 2019 which is earlier than the published date of the disputed book. As for the book "We are in a book", although it was published in China later than the date of the disputed book, it enjoys a high reputation because the book has been Awarded Geisel Honor in year 2011, and has been reported in various media in China before 2015, and its corresponding Chinese Version was published in Taiwan in 2012. Additionally, Nasreddin Co. is a practitioner in the animation industry which is closely related to the picture book industry.

For the substantial similarity part, the court has found that although the animation characters in the two book series are different, the covers, front and back ring liners, title pages and the composition layouts of the main text, the character's expressions, actions, dialogues, the storylines expressed through the character's image and dialogue are almost identical, and even the book page numbers of both series can correspond to each other. The infringing book is only the translation of the dialogue in Mr. Willems's book.

Thus, the breach of copyright is confirmed.

As for the third point, Mr. Willems claims statutory compensation of 500,000 yuan. The Court held that the way of calculating compensation for damages stipulated in the Copyright Law is in order. The first is the plaintiff's loss, and the second is the defendant's profit. When both are uncertain, legal compensation can be applied. During the examination, Mr. Willems did not provide evidence to prove its actual loss. The sales evidence submitted by Nasreddin Co. and Fudan Press was inconsistent and do not correspond. Therefore, under the existing evidence, the calculation method of compensation for the defendant's profit order could not be applied in this case. In this case, statutory compensation should be applied.

Then, after taking into consideration the reputation of Mr. Willems and his works, the originality of disputed picture books, the print runs, pricing and reader reviews of the Chinese version of Mr. Willems' books, degree of plagiarism, the pricing and the sales price and sales volume of; etc, the Court held that Nasreddin Co. and Fudan Press should jointly compensate Mr. Willems 200,000 yuan.


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