Fencing (contract law/ownership/film/actor/rest)

Fencing (contract law/ownership/film/actor/rest)

Li Dongtao

Description: actor ≠ author ≠ copyright owner

The Facts

Time to rest

To sleep

To dream of spring

This is a case about “rest”.

The plaintiff is a fencer.

The defendant is a film company.

In March 1997, the defendant concluded an agreement with some fencers, including the plaintiff, to take part in shooting an educational film about the sport of fencing.

According to the agreement, the plaintiff agreed the defendant would own the copyright to the film after paying him remuneration.

Besides the cast of fencers, the defendant also employed a crew that included the director, the lighting engineers, the set designers, and others. In the process of shooting the film, the fencers were asked to act according to the director’s orders. The defendant was also the sole investor in the film. After the film was completed, the defendant paid the plaintiff as set forth in the agreement.

In June 1997, the defendant published videotapes of the film with the title Dancing Swords and got a market success quickly.

The defendant was clearly identified as the producer of film, and the plaintiff was identified as one of the actors.

The plaintiff sued the defendant for copyright infringement because he got so few remunerations.

The defendant argued the copyright infringement was not established because it was the copyright owner.

Analysis

The copyright infringement is not established.

It is clear the fencers’ performances and popularity strongly contributed to the market success of the film, it is also true in the original agreement, the plaintiff agreed the defendant would own the copyright after paying him remuneration.

This agreement is valid. Accordingly, the plaintiff had assigned his performing right to the defendant.

More importantly, the plaintiff was not the only actor in the film, and he had to act according to the director’s orders in the process of shooting the film, the defendant was also the sole investor…

Therefore, the copyright of the film was not in the hands of the plaintiff.

Though the plaintiff pushed for his aim, his sword missed the target.

In short, time to rest, not to dream of copyright.

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