Recently, the first gun battle online game "call of duty" under the host platform of Activision Blizzard fell into infringement: after the game released a new skin trailer, the Chinese painter sail_ Lin pointed out on his microblog that he infringed the rights: "the design of this set of skin, except for individual details, almost completely copied the image of Samoye medical soldier in my original series of works the Moonlight".

The left picture shows sail_ Lin's work. The right picture is the skin of call of duty. The picture is taken from YouTube.

At first glance, although there are similarities between the two pictures, there are also differences. The copyright law uses the dichotomy of creative expression to identify infringement. The law does not protect creativity, but only expression. If Chinese painters sue, Activision Blizzard may argue that the similarity is just the same idea, but the actual expression is different, and the similarity is just a coincidence. Will the court accept this defense? Today, I will talk with you about how to judge the infringement of art works in the game.

According to the author's experience, if sail_ If Lin proves it properly, the Chinese court should recognize that Activision Blizzard constitutes an infringement. As the copyright owner, he should prove the following matters in this case:

一、 Prove that he has legal copyright

According to the copyright law, copyright is obtained from the date of creation. However, if a lawsuit is filed, it is better to have corresponding evidence to prove the time of creation. Sail_ Lin has at least two sources of legal evidence: he published his works on the Internet two years ago and provided corresponding links, and authorized other games to use the image of Samoye medical soldier. If the defendant wants to deny it, it can find the basis of a third party, such as bisail_ Lin: some people used similar images earlier, or this work is not original enough. It is a common design in the industry, and it is easy for everyone to create similar works.

二、 Prove the originality of the work

Proving the originality of the work is the key to whether the case constitutes infringement. Because if the defendant argues that the similarity between the two sides is only the consistency at the creative level, the originality of the cited works can prove that the two are also consistent at the expression level. In this case, the originality that the plaintiff can cite is mainly the following design details, at least including: 1. Designing Samoye as a soldier; 2. Black and white striped scarf; 3. Trouser tube fold; 4. Waist bag; 5. Hand held firearms; 6. All have armbands; 7. Elbow protector; 8. Backpack strap.

I believe that even those who do not understand intellectual property rights will know that this has constituted plagiarism after reading the comparison chart below and the consistency of the eight parts summarized above. The key is that there are many original details that are consistent and cannot be excused by the same or coincidence of creativity. In fact, as long as there are two elements of Samoye soldiers and black-and-white striped scarves, I think this case will probably win. Because Samoye is personified and a scarf is added, the judge will tend to constitute infringement. Now, there are eight similar characteristics, and the defendant's lawyer is really unable to argue on this point.

三、 Prove that the defendant has committed an infringement

There are generally two forms of infringement of art works in games: infringement of publicity content and infringement of art works in games. For these two kinds of infringing content, the notarial certificate or time stamp can be used to preserve the evidence. However, in this case, Activision Blizzard has already taken off the shelf, and the new version of call of duty has not been released, and it is estimated that it will not be released. Therefore, the plaintiff can only preserve the publicity videos of Activision Blizzard released by the third party retained online. If the defendant denies the authenticity of the promotional film in the lawsuit, the plaintiff can ask the lawyer to apply to the court for an investigation order and go to the video website to retrieve the deleted content.

四、 Proof of loss

There are three methods for the court to determine the loss of infringement cases:

1. Plaintiff's loss. As mentioned above, the author has authorized other games to use the Samoye medical soldier image, and the corresponding authorization fee is the income that the plaintiff should have received, which can be used as proof of loss. Meanwhile, sail_ Lin said that he received abusive emails from foreign netizens, which led to the disruption of his peaceful life. This is also evidence of spiritual loss.

2. The defendant's profits. In this case, the infringement of Activision Blizzard was actually nipped in the bud, so the defendant basically did not make a profit.

3. If there is no evidence in the first two aspects, it is at the discretion of the court. According to the author's experience, in this case, because Activision Blizzard has not had time to release the client containing the infringing skin, the court will not award more than 100000 yuan if a lawsuit is filed.

Finally, this case is actually a relatively simple infringement case. Activision Blizzard should have been fooled by bad painters, not intentional infringement. Many infringements in China are much more complicated than this. Many game companies use the role content in the competitor's games to advertise, and deliberately choose third and fourth tier cities to publish advertisements, which can't be seen in big cities. The victimized companies have to send people to remote places to do evidence preservation. After completing the work, they also find that the role of others in the promotional film is to channel, and there is no infringing content in the game. This situation is exhausting to obtain evidence, However, the court's award of compensation is only tens of thousands of yuan at most, which will really make the defenders spit blood.