I、 Who may be responsible for the infringement?

This short video shot by Andy Lau is a commercial advertisement released by Audi company to promote its own brand and products. Now the short video infringes. According to the advertisement law, the following subjects may bear legal liability:

1. Audi. As an advertiser and advertisement publisher, Audi is the first responsible person for infringing advertisements. Therefore, the expression "we sincerely apologize for the troubles caused to Mr. Andy Lau, brother man of Peking University and relevant parties due to poor supervision and lax audit" in Audi's Apology Statement 2 is suspected of avoiding the important and neglecting the minor. What they should bear is the full legal responsibility for plagiarism, which is far more than supervision and audit.

2. M&c Saatchi Shangsi advertisement. As the production company of infringing advertisements, Audi claims that it has provided and implemented the advertising plan. M&c Saatchi Shangsi advertising is legally an advertising operator and should bear joint and several tort liability to "Beida man Ge" for the infringement. In addition, they should also be liable for breach of contract to the entrusting party Audi for providing infringing advertising documents.

3.Andy Lau. If the case enters the litigation and all three parties are prosecuted, there is no doubt that Audi and m&c Saatchi Shangsi advertising will bear the tort liability, while Andy Lau will not necessarily bear the legal liability if he has fulfilled the obligation of careful review in advance. Now let's discuss in detail Andy Lau's legal status and what needs to be done in this incident.

II、 Conditions for spokesperson's exemption from liability in advertising intellectual property infringement cases

1. Why is Andy Lau an advertising spokesperson?

The purpose of this short video shot by Audi is to promote its own brand and products, and Andy Lau, as a star, is the star of the short video. He recommended and proved Audi in his own name and image in the advertisement. Although Andy Lau is not a professional racing driver, the trust of consumers on his star makes him still constitute the spokesperson stipulated in China's "advertising law".

On this issue, Chinese and American laws are consistent. The Federal Trade Commission's "guidelines on the use of endorsements and recommendations in advertisements" 3 has a case: the TV advertisement of the home fitness system is hosted by a well-known artist. Even if she is reading the script, this sentence is also a kind of endorsement, because consumers are likely to think that it reflects the artist's point of view. This is consistent with the nature of Andy Lau's advertising of Audi Xiaoman.

2. What should Andy Lau do as a spokesperson?

(1) Experience the product in advance.

The practice of compliance is to experience first, understand deeply, and then endorse. For example, Andy Lau, who speaks for Audi cars, should drive Audi cars himself. Also avoid symbolic use. You can't drive for three minutes to experience it, or replace your actual experience with your relatives and friends. The key point here is to save the evidence related to the experience process, so that if there is a problem with the product endorsed in the future, you can prove that you have experienced the product with evidence.

(2) Investigate the products and enterprises endorsed

In this case, Andy Lau's team should conduct necessary background investigations on Audi and keep relevant investigation records, including: whether the subject is legal, whether there are judicial proceedings, administrative penalties and other relevant negative information, whether Audi cars meet quality specifications and regulatory requirements, etc.

(3) Review advertising copy

The scope of examination includes whether the contents of the sample manuscript, sample film and script are illegal, and whether the copy infringes the intellectual property rights of others. The Audi advertisement in this case copied a poem adapted from Zeng Guofan's famous words by "brother man of Peking University". If this poem can be found by inputting words into the search engine, it can be regarded as not having fulfilled the responsibility of examining the advertisement copy.

The author's personal judgment, this poem may be released in the video, search engine search text can not find. However, even if it is not found, the prior review of advertisers and advertising operators in this case is flawed. The plagiarized video of "brother man of Peking University" is also a popular work that likes more than 100000. If you watch more videos related to Xiao man solar terms in advance, the plagiarized works may not be published.

(4) Perform the remedial obligation in time after finding the problem

The spokesperson should follow up and pay attention to the endorsing enterprise and the endorsing goods or services. If the endorsing enterprise has serious violations of law and credibility, or there are serious quality and safety problems in the endorsing goods or services, it should verify and evaluate in time, and take remedial measures such as terminating the endorsing contract and issuing a personal statement according to the circumstances. We see that Andy Lau deleted the infringing video on his personal Tiktok account in time after he found the plagiarism problem, which is his obligation to remedy.

Finally, according to the provisions of the civil code, the copyright law and the advertising law, unless the plagiarized copy in the case is created by the spokesperson, or refuses to delete the infringing content in his own account after discovering the infringement, in most cases, the spokesperson is not responsible for the infringement of intellectual property rights in the advertisement. However, if the spokesperson does not do a good job in the compliance procedures before endorsement, it is easy to endorse the overturned brand. Sometimes, intellectual property infringement can be exempted, but if brand fraud or product quality problems are prosecuted by consumers, it is not so easy to be exempted.