At the just past 2021 annual two sessions, Yan Jingming, member of the National Committee of the Chinese People's Political Consultative Conference and vice chairman of the Chinese Writers Association, proposed in the proposal of the CPPCC meeting that the legitimate rights and interests of screenwriters, such as the right of authorship, need to be urgently protected, and recommended that the competent authorities further clarify the rules for authorship and remuneration payment for screenwriters; Strengthen the distribution control of film and television works involving copyright disputes, and introduce a supervision and punishment mechanism. At the same time, the famous director Zheng Xiaolong and the famous writer Jiang Shengnan also unanimously proposed that the industry should pay more attention to the authorship rights of original writers such as screenwriters.

 

In recent years, there have been frequent outbreaks of cases involving the rights of screenwriters in the film and television industry, and there has been deep resentment over the issue of screenwriters' signatures. People from all walks of life in the film and television culture have also voiced their voices on the authorship rights of screenwriters at the two sessions, which can not help but make people wonder what is wrong with the authorship of screenwriters? How is it reasonable and legal to sign a screenwriter?

 

From a legal perspective, the act of writing a screenplay for a movie or television drama creates two rights of authorship. One is the author's right of authorship in a written work script, which derives from Article 10 of the current Copyright Law: "The right of authorship is the right to indicate the identity of the author and to sign on the work." This right of authorship is expressed in the form of labeling the author on the paper or electronic version of the screenplay. One is the right of authorship for film and television drama writers, which derives from Article 15 of the Copyright Law: "The copyright in film works and works created by similar methods to film production is enjoyed by the producer, but writers such as screenwriters, directors, photographers, lyricists, and composers enjoy the right of authorship, and are entitled to receive remuneration in accordance with the contract signed with the producer." This right of authorship is expressed by marking "screenwriters" in the subtitles of film and television dramas. In view of the fact that screenwriters pay more attention to the second right of authorship in practice, and most disputes over the right of authorship also arise from this right of authorship. The author discusses several types of relatively common disputes over scriptwriter's right of authorship based on cases.

 

1、 Who owns the copyright and the right of authorship of a commissioned script

 

There are generally two sources of screenplay. One is that there is already a written script, and the film and television company signs a Copyright License Agreement with the copyright owner of the script. The copyright owner of the script authorizes the transfer or license of the adaptation rights, production rights, and other property rights required by the film and television company to the film and television company for use. The copyright owner of the script owns other copyrights of the script. It should be noted that according to Article 10 of the Copyright Law, the copyright owner may transfer or license others to exercise the property rights in the copyright, and obtain remuneration in accordance with the agreement or relevant provisions of this Law. However, personal rights such as the right of publication, the right of authorship, the right of modification, and the right to protect the integrity of the work cannot be transferred or licensed, and remain the property of the original copyright owner of the script.

 

Another situation is that there is no ready-made script, and the film and television company signs a "commissioned creation contract" with the screenwriter, in which the screenwriter creates the script, and both parties agree on the ownership of the copyright in the script. Article 17 of the Copyright Law stipulates: "For a commissioned work, the ownership of the copyright shall be agreed upon by the client and the trustee through a contract. If the contract does not explicitly stipulate or no contract is concluded, the copyright shall belong to the trustee." That is, if the ownership of the copyright in the script is not agreed upon in the Commissioned Creation Contract, the copyright in the script shall belong to the screenwriter himself, Film and television companies have the right to use the work within the agreed scope of use. However, as the entrusting party, film and television companies generally agree in the contract that the copyright of the commissioned script belongs to the film and television company, and only agree that the screenwriter has the right of authorship and the right to receive remuneration.

 

In the case of copyright dispute between Pan Mou and Beijing Montage Universal Pictures Co., Ltd., Beijing Huifengyuan Film and Television Culture Media Co., Ltd., and Luo Mou ((2013) HMCZ No. 21473), the court held that the "Contract for Commissioned Adaptation of Film and Literature Screens" signed by the two parties is a true expression of intent by both parties, and the content does not violate the mandatory provisions of laws and administrative regulations, and is legal and valid. According to the agreement of the contract and the statements made by both parties in court, Beijing Huifengyuan Film and Television Culture Media Co., Ltd. (hereinafter referred to as "HSBC Source Company") entrusted Pan Mouru, the legal representative of Beijing Sanli Zhonghe Culture Media Co., Ltd. (hereinafter referred to as "Sanli Zhonghe Company"), to adapt the movie script "Mysterious Turtle Bay", and the copyright of the adapted script shall be owned by HSBC Source Company. Huifeng Fengyuan Company has paid Sanli Zhonghe Company 40000 yuan as agreed, so if Pan Mou, the legal representative of Sanli Zhonghe Company, adapted the script "Mysterious Turtle Bay", the copyright should be owned by Huifeng Fengyuan Company.

 

2、 How to sign when multiple writers participate in the creation

 

It is very common for multiple screenwriters to participate in script creation in the film and television industry. Some scripts are created by a single scriptwriter team, where multiple screenwriters participate in the creation; There are also scenarios where the commissioning party may sign a "commissioned creation contract" with different writers, stipulating that some writers are responsible for creating the story outline and character biographies, some writers are responsible for creating the first 20 episodes of the script, and some writers are responsible for creating the last 20 episodes of the script. Under normal circumstances, if multiple writers participate in the creation of a script, the writers participating in the creation are all the authors of the script and have the right to sign. The specific signing method and order of multiple writers are generally agreed upon in advance by the contract. However, there is also a situation where there is no clear agreement in the contract, or although the contract is agreed upon, a screenwriter later believes that the agreement in the contract is inconsistent with the creative facts, which can easily lead to disputes. The focus of controversy generally focuses on the issue of the order of signatures and the use of specific titles when writers sign their names.

 

1. The question of the order of signatures

 

The order of signatures is a matter of concern to screenwriters. Some screenwriters believe that their intellectual labor contributes more to the script and hope that they can sign first; Some screenwriters believe that screenplays belong to artistic creation and are subjective. Each screenwriter's contribution to a screenplay cannot be accurately differentiated. Why should you be in the forefront! So what should we do?

 

Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Copyright stipulates that "If a dispute arises due to the order of authorship of a work, the people's court shall handle it in accordance with the following principles: if there is an agreement, the order of authorship shall be determined in accordance with the agreed order of authorship; if there is no agreement, the order of authorship may be determined in accordance with the labor paid for the creation of the work, the arrangement of the work, the author's surname, and strokes.". In other words, if there is an agreement in the contract, it should be in accordance with the agreement in the contract. If a screenwriter requests to change the agreement in the contract on the grounds that his intellectual labor has made a greater contribution to the script, and arranges for his signature to precede it, the court generally does not support it. If there is no agreement in the contract, the order of signatures can be determined based on the amount of labor the screenwriter pays to create the script. If it is not possible to determine the size of the labor, it should be determined according to the script arrangement, such as the scriptwriter's signature for the first twenty episodes of the script being created ranking first, and the scriptwriter's signature for the last twenty episodes of the script being created ranking second. If it is not possible to determine the size of the work and there is no clear order of arrangement of the works, the order of signatures should be determined based on the author's surname, strokes, etc.

 

In the retrial of the dispute over the right of authorship of "Dashengkui" between Li Mouming and Inner Mongolia Wang Moumin Film Studio Co., Ltd. and Wang Moumin (2019), the court held that Li Mouming, the screenwriter of "Dashengkui", once stated himself during the first instance of the lawsuit. After the completion of the script, through consultation, an oral agreement was reached that Li Mouming was the first chief screenwriter and Wang Moumin was the second chief screenwriter, The order of signature reflected in the finalized script is "Chief Editor: Li Mouming, Wang Moumin". During the retrial review, upon inquiry by this court, Wang Moumin also expressed his approval for this signature method. Therefore, the signature of "Chief Screenwriter: Li Mouming, Wang Moumin" conforms to the provisions of the Copyright Law and also conforms to the contract agreement.

 

2. A variety of scriptwriter signatures

 

The wisdom of the working people is infinite. In order to strive for their legitimate rights and interests as much as possible, a variety of scriptwriter signatures have emerged in some film and television dramas, including screenwriters, screenwriters (writers), chief screenwriters, and original screenwriters, which are very prone to disputes. Some screenwriters believe that I wrote most of the screenplays. Why should I sign someone as the chief screenwriter? Others think he's my leader! Some screenwriters question that I am a screenwriter. What does original screenwriting mean? The resulting disputes also emerge in endlessly. In judicial practice, the court determines whether the method of signature is appropriate, first of all, by looking at whether there is an agreement on the signature in the contract, and if there is an agreement, it shall be implemented according to the agreement. If there is no agreement or the agreement is unclear in the contract, it shall be determined based on the actual situation by referring to industry practices. The signature of the screenwriter, screenwriter (writer), chief screenwriter, and original screenwriter does not violate the relevant provisions of the law.

 

In the case of a dispute over the authorship rights of the screenwriter of "The Legend of Mi Yue" between Jiang Mounan and Dongyang LeTV Hua'er Film and Television Culture Co., Ltd. and Wang Mouping ((2017) Zhe 03 Min Zhong No. 351), the court held that when two or more people participate in co creation, each screenwriter plays a different role. Dongyang LeTV Hua'er Film and Television Culture Co., Ltd. (hereinafter referred to as "Hua'er Film and Television Company") uses specific titles (such as "Chief Writer" and "Original Writer") to indicate the different division of labor and roles of each screenwriter when signing their names on TV dramas, This practice itself is not prohibited by law... The commissioned creation contract between Wang Mouping and Huaer Film and Television Company stipulates that Wang Mouping will modify and create the script of the TV drama "The Legend of Mi Yue" originally written by Jiang Mounan. According to the facts of this case, in addition to completing the above creative tasks, Wang Mouping has provided guidance on script creation issues such as script outline, first draft evaluation, plot arrangement, and so on many times since the beginning of script creation at the request of Cao Mou. After the script starts shooting, it modifies and adjusts the content of the script based on the situation at the shooting scene. Although Jiang Mounan questioned the rationality of Wang Mouping's participation in these works, from the perspective of the entire creative process of the TV drama script "The Legend of Mi Yue", Wang Mouping objectively played a guiding and overall role. When signing for Wang Mouping, Hua'er Film and Television Company used the title of "chief screenwriter", which matched the nature of its work and the role it played, and was not inappropriate. At the same time, Hua'er Film and Television Company signed Jiang Mounan with the title of "original screenwriter" according to the agreement, which also objectively reflects Jiang Mounan's original and pioneering role in the creation of the TV drama "Legend of Mi Yue".

 

In addition, the Supreme People's Court's determination is more clear in the retrial of the dispute over the right of authorship of Li Mouming's "Dashengkui" with Inner Mongolia Wang Moumin Film Studio Co., Ltd. and Wang Moumin ((2019) Supreme People's Shen No. 2023). The original text of the Civil Ruling is: "The law does not preclude parties from making an agreement on the identity of the author of a screenplay based on the specific circumstances of the creation. When there is a signature that is not within the meaning of copyright regulations, it should be judged whether it has the meaning of copyright law signature, in accordance with the provisions of the copyright law, according to whether it belongs to the author of copyright law. For example, in a series of multiple episodes or stories with separate identities, there are chief screenwriters, chief planners, and literary writers." A variety of appellations such as financing. In this case, there are signatures of both the screenwriter and the chief screenwriter. In essence, the chief screenwriter should belong to the meaning of screenwriting. Although there are differences in the expression of "chief screenwriter" and "screenwriter", they only reflect the differences in the author's participation, role division, and role in the script creation process. A screenwriter refers to the author who creates a specific episode, while a chief screenwriter refers to the person who pays creative labor for all the episodes. Chief screenwriter and screenwriter can be clearly distinguished from other identities such as director, photographer, lyricist, composer, and can indicate the identity of the creator of the script. They are signatures with copyright law significance. "Anyone who signs as a chief screenwriter or screenwriter must comply with the requirements of copyright law for the author."

 

3、 Does the screenwriter still have the right of authorship if the screenwriter's contract is terminated or terminated in advance

 

According to the author's practical experience, changes in screenwriting occur from time to time in film and television dramas. Some screenplays have even been changed more than once. Sometimes, film and television companies believe that the screenplay is not good, sometimes the director believes that the screenplay is not good, and sometimes the video platform will also provide various opinions on the screenplay. The question then arises: If the script written by the original screenwriter fails to pass the review of the film and television company, both parties terminate the contract, and the film and television company finds another screenwriter to create it. Does the original screenwriter still have the right of authorship? Generally speaking, both parties should sign an agreement on the cancellation or termination of the screenwriting contract. The agreement specifies whether to use the content created by the original screenwriter and whether to retain the authorship rights of the original screenwriter. If both parties strictly follow the agreement, there should be no dispute over the authorship rights.

 

However, the plan is not as good as changing, and there may be situations in the subsequent script creation process that are inconsistent with the agreement to terminate or terminate the agreement. The content originally agreed to use the original screenwriter's creation will eventually become useless, or the content originally agreed not to use the original screenwriter's creation will eventually become useless; What's more, both parties have not signed a termination or termination agreement at all, but one party notifies the other party to terminate the contract. At this time, the dispute cannot be avoided. In judicial practice, courts generally believe that the right of authorship of a screenwriter comes from the act of writing the screenplay rather than from contractual agreements. If the screenwriter's contract is terminated or terminated in advance, whether the original screenwriter still has the right of authorship depends mainly on whether the final completed screenplay uses the original content of the original screenwriter. Even if there is an agreement in the contract that the right of authorship should not be retained, as long as the original screenwriter's original content is used in the script, the writer's right of authorship should be guaranteed.

 

In the case of dispute over the authorship rights of the screenplay "Ten Fingers Connected" between Beijing Canglangtianxia Film and Television Production Co., Ltd. and Wu Mouying ((2014) Sanzhong Minzhong Zi No. 09689), the court held that whether the script delivered by Wu Mouying had quality issues and whether Wu Mouying enjoyed the right of authorship were two different legal relationships. In other words, even if the script delivered by Wu Mouying did have quality issues, However, as long as Beijing Canglang Tianxia Film and Television Production Co., Ltd. (hereinafter referred to as "Canglang Company") adopts Wu Mouying's original expression in the final script, Canglang Company also bears the legal obligation to sign Wu Mouying's name.

 

4、 Can the writer's right of authorship be transferred and waived

 

1. Whether the right of authorship can be transferred

 

When discussing the first issue in this article, it has been clarified that the right of authorship of a screenwriter is a legal right and has the nature of personal rights, which cannot generally be transferred. Even if the contract contains an agreement on the transfer of the right of authorship, the agreement will be invalid due to conflicts with the provisions of the Copyright Law. When discussing the third issue, this article has clarified that the right of authorship of a screenwriter comes from the act of writing the screenplay rather than from contractual agreements. Even if there is an agreement on the transfer of the right of authorship in the contract, as long as the original screenwriter's original content is used in the script, the writer's right of authorship should be guaranteed.

 

In addition, Article 47 of the Copyright Law stipulates that "Anyone who commits any of the following acts of infringement shall bear civil liability, depending on the circumstances, for stopping the infringement, eliminating the impact, making an apology, compensating for losses, and other civil liabilities:... (3) Anyone who does not participate in the creation and signs his name on the work of another person in order to seek personal fame and gain." This provision also provides a lateral proof that the author's right of authorship cannot be transferred to another person.

 

2. Whether the right of authorship can be waived

 

It cannot be ignored that in practice, there are situations where screenwriters are unwilling to sign their names in movies and TV dramas. The signature of the screenwriter for "The Twelve Hours of Chang'an" is not the name of one or several people, but rather a studio. This indicates that the script is hosted by the studio, created on behalf of the studio's will, and held responsible by the studio. It is a legal person's work. However, this way of signing a screenwriter is very rare, so some people privately speculate that it may be because the screenwriter is afraid of being hacked by netizens and does not want to sign the screenwriter's personal name (which is not the case, of course). There is also a situation that film and television companies are relatively concerned about. If a screenwriter, as the lead creator, has misdemeanor issues such as violations of law and discipline, infidelity scandals, and improper behavior, and is "banned" by the regulatory authorities, affecting the normal approval, production, dissemination, or broadcast of film and television dramas, can the screenwriter voluntarily give up the screenwriter's signature?

 

The author believes that the ways in which authors exercise their right of authorship include signing their real names, signing their pen names, and not signing their names. Non signing is itself the way in which the right of authorship is exercised. If both parties have reached an agreement on the non signature of the screenwriter, based on the principle of fully respecting the autonomy of the parties to the contract, and the agreement does not violate any legal provisions, it should be legal and effective.

 

In the case of copyright infringement dispute between Yu Moujun and Yang Mou and Cui Mou ((2003) HMCZ No. 2603), Yu Moujun filed a lawsuit alleging that he completed the script creation of the TV series "China Special Police" (first draft), and was later coerced into issuing a statement, the main content of which was "to relinquish the copyright ownership of" China Special Police "and the right of authorship, and to retain the ownership of the 80000 yuan remuneration paid by Chongde Company (personal income tax shall be borne by me).". However, later, Yang and Cui pretended to be writers of "China Special Police" and violated my copyright. Therefore, they filed a lawsuit to the court and requested the court to confirm that they enjoyed full copyright in the script of the TV series "China Special Police". In this case, although the court held that "... waiver is a unilateral expression of intent that no longer enjoys rights, without the intention to transfer or assign the rights to others. Given that the author's withdrawal of the waiver statement will not harm the interests of the filming party, it is in line with the requirements of copyright law to protect spiritual rights and the civil law principle of restrictive interpretation for the waiver of rights by the obligee," and ruled that Yu Moujun enjoys the authorship right. However, the court also held that "waiving the right of authorship" should be interpreted as the author's consent not to sign, which does not mean that others have the right to sign their works.

 

In other words, generally speaking, a writer's waiver of the right of authorship can be considered as the writer's consent to not sign. If the writer does not withdraw the declaration of intent, the writer's consent to not sign should be legal and valid.

 

It is undeniable that screenplays are the source and core of film and television dramas. As the author of the screenplay, the screenwriter is the originator and chief creator of film and television dramas. "A good film and television drama cannot be buried with the contributions of the screenwriter. Similarly, the right of authorship of the screenwriter cannot be ignored, and all screenwriters should be given fair, fair, reasonable, and lawful rights of authorship.".

 

(This article is translated by software translator for reference only.)