Wanted: The Plaintiffs? (copyright law/contract law/independent creation/airlines/golden/ad)
Wanted: The Plaintiffs? (copyright law/contract law/independent creation/airlines/golden/ad)
Li Dongtao
Description: an ad slogan may be a work.
A．The Case
…if you want me to go,
I will go away.[1]
This is a case about “WANT”.
The plaintiff is a middle school teacher
The defendant is China Golden Airlines.
On March 1, 1998, the defendant published an announcement in the P Daily in which readers were invited to create an advertisement for its new Beijing to Golden Prairie route. The defendant also promised to pay RMB 10,000 yuan for the best work created by anyone in China. Submissions were to be sent to its Beijing headquarters before March 15, 1998 and the result would be published in the P Daily on July 30, 1998.
The response to this competition was tremendous. Before long, lots of letters arrived at the defendant's Beijing headquarters, including the plaintiff's work “Take Golden Airlines, Enjoy a Golden Life”.
On July 30, 1998, the winning submission was announced in the P Daily. The prize-winning work was " Take Golden Airlines, Enjoy a Golden Life ", but the author was identified as the famous writer, Z, not the plaintiff.
After learning the result, the plaintiff went to the defendant's headquarters to find out the reason why he had not won. Ldt The defendant's explanation was that seven people, including the plaintiff and Z, had created the same work.
But who had submitted the work first or how the winner had been chosen? the defendant didn't give a clear answer. A week later, the defendant began using the work " Take Golden Airlines, Enjoy a Golden Life " in its advertisements.
The plaintiff sued the defendant for copyright infringement.
The defendant argued it was innocent because the plaintiff’s work was not chosen.
B. Analysis
The copyright infringement is established, because:
a. Work
A piece of ad slogan, only a few words, though simple, may be a work.
In copyright theory, a work is not defined by the total number of its’ words and an ad slogan is not excluded from copyright protection.
Of cause, some ads are too simple to be copyrightable, for example, Just Do It, or, Let’s Go.
In this case, the word “Golden” was repeated in the ad, in line with the defendant’s new Beijing to Golden Prairie route, then the expression of an idea was created: the quality of a service, golden service.
This is creativity, this is a work.
b. Contract
The defendant published an announcement in the P Daily.
The defendant wanted to buy an ad slogan:
(1). Readers were invited to create ad slogans and send them to its headquarters;
(2). The defendant would choose the best one and pay the price to the author and then get the copyright of the work.
It is a contract between the defendant and the author of the chosen work, a valid contract.
But because of an accident, or, ignorance, this contract was turned into the copyright infringement.
c. Independent Creation
Seven people, including the plaintiff and Z, had created the same work.
The defendant's explanation was candid, but it couldn’t be used to deny copyright infringement.
In copyright law, there is an independent creation theory:
A same work can be created by different authors independently, and every author can be entitled to the same copyright of this work.
Because the defendant didn't indicate who had submitted the work first or how the winner had been chosen, it should buy the copyright of the same ad slogan from every author and pay the price to them.
Or, when the defendant published the final result, the plaintiff's work was not chosen, so the copyright was still in his hand.
As a result, what the defendant wanted was changed from an ad slogan into the plaintiffs.
In short, the defendant wanted the plaintiff to go, but the plaintiff needn’t go away.
[1] Do you want me POEM by Taleshia G MCcray at www.poetry.com/poem/69676/do-you-want-me
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