In order to restore the shocking real events in the long river of human history, artists and investors are keen to adapt real people and events into film and television dramas and present them to the public, such as "The Name of the People", "Chinese Women's Volleyball", "Chinese Captain", "I Am Not the Drug God", and so on. Is it possible to adapt movies and TV dramas based on real people and events? Do you need authorization from a prototype character or someone else? The author intends to analyze the above issues from the following three aspects.

1、 Does the archetypal character have copyright in their personal experience

Article 2 of China's Copyright Law stipulates that "The works of Chinese citizens, legal persons, or other organizations, whether published or not, shall enjoy copyright in accordance with this Law." Article 2 of the Regulations for the Implementation of the Copyright Law stipulates that "The term" works "as used in the copyright law refers to intellectual achievements that are original in the fields of literature, art, and science and can be reproduced in a tangible form."

The personal experience of a prototype character is a "fact" that has already occurred, and it is not the result of the intellectual creation of the prototype character. The prototype character cannot ensure that its personal experience exhibits originality, and the personal experience cannot be automatically recorded on a tangible carrier for replication. Therefore, the personal experiences of the archetypal characters themselves are difficult to meet the constitutive requirements of the work, and are not "intellectual achievements" in the legal sense, and cannot be protected under the Copyright Law. Generally speaking, adapting a movie or television drama based on a real person or story does not require obtaining an adaptation right authorization under the prototype character copyright law.

2、 If a certain carrier has been formed for real people and events, does it require the authorization of the original author to adapt movies and TV dramas based on real people and events

For example, if the experience of the prototype character has been publicly reported by multiple media, and its experience has formed corresponding news reports or biographies of the character, if film and television dramas are adapted and created based on this, does it require corresponding authorization? The author believes that this issue requires specific analysis, and there are several possible situations.

1. Movies and TV dramas are adapted based on current events and news

Article 5 of China's Copyright Law stipulates: "This Law does not apply to:... (2) current affairs news;" (The new Copyright Law, which came into effect on June 1, 2021, changes the term "current affairs news" in this article to "pure factual news," and this article still uses the expression of the current Copyright Law) According to this provision, current affairs news does not enjoy copyright, if film and television works are adapted based on pure current affairs news, There is no need to obtain authorization from the author of current affairs news. However, Article 16 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: "Simple factual information disseminated through the mass media belongs to current affairs news as stipulated in Article 5 (2) of the Copyright Law. When disseminating and reporting current affairs news compiled by others, the source shall be indicated."

It should be noted that attention should be paid to the difference between current affairs news and current affairs articles. Paragraph 1 of Article 5 of the "Copyright Law Implementation Regulations" stipulates that current affairs news refers to pure factual information reported through newspapers, periodicals, radio stations, television stations, and other media. If current affairs articles contain not only "pure factual information," but also analysis, evaluation, and interpretation, which can reflect the author's original expression and form intellectual achievements, they no longer belong to pure factual information and can be considered as works protected by copyright law.

2. Movies and TV dramas are adapted based on current events articles or biographies

As stated earlier in this chapter, current affairs articles are different from current affairs news and are not purely factual information, and can be considered works protected by copyright law. Moreover, Article 22 of the Copyright Law also stipulates that "In the following circumstances, the use of a work may be made without the permission of the copyright owner and without payment of remuneration, but the name of the author and the name of the work shall be specified, and other rights enjoyed by the copyright owner under this Law shall not be infringed:" "Newspapers, periodicals, radio stations, television stations, and other media publish or broadcast current affairs articles on political, economic, and religious issues that have been published by other newspapers, periodicals, radio stations, television stations, and other media, except for those that the author has declared not to be published or broadcast;" It is also explicitly stated that current affairs articles are works with copyright owners and fall within the scope of works protected by copyright law.

Biography is a form of literary work that systematically describes and introduces the life, life, spirit, and other fields of typical characters. Undoubtedly, biographies belong to the category of works protected by copyright law.

Therefore, current events articles or biographies are works protected by copyright law. If a film or television work is adapted based on current events articles or biographies, prior permission and authorization from the copyright owner of the relevant work should be obtained.

3. Movies and TV dramas are adapted based on the oral content of the prototype characters

Article 4 of the Copyright Law Implementation Regulations stipulates: "(2) Oral works refer to works expressed in oral language such as impromptu speeches, lectures, court debates, etc. If the oral content of interviews with prototype characters is only a simple statement of facts such as time, location, characters, events, etc., then authorization from the prototype characters is not required.". If the oral content of interviewing a prototype character not only includes factual information such as time, location, character, and event, but also includes the description, analysis, and evaluation of the prototype character's personal experience, which is personalized and original, and is the intellectual achievement of the prototype person, it may form a "oral work" protected by China's copyright law. Prototype characters enjoy copyright in their oral works. If a movie or television drama is adapted from the oral works of prototype characters, it is necessary to obtain authorization from the prototype characters.

3、 Should we obtain the authorization and consent of the prototype character to adapt the film and television drama based on the real person and the real story

Since the archetypal characters do not enjoy copyright in their personal experiences, can it be possible to adapt real life movies and TV dramas without obtaining the authorization and consent of the archetypal characters? In practice, it is not so simple. Due to the relatively large investment in film and television dramas, when producing film and television dramas based on "real people and facts" known to the public, according to industry practice, film and television companies usually try to sign written documents with the prototype characters in advance to obtain the shooting license for the prototype characters and clarify the copyright ownership of the works. The main reasons are:

1. Respect the reputation and privacy rights of prototype characters

Article 1024 of the Civil Code of the People's Republic of China stipulates: "Civil subjects enjoy the right of reputation. No organization or individual may infringe upon the right of reputation of others by insulting, slandering, or other means. Reputation is a social evaluation of the moral character, reputation, talent, and credit of civil subjects." Article 1032 of the Civil Code of the People's Republic of China stipulates: "Natural persons enjoy the right to privacy. No organization or individual may infringe upon the privacy of others by means of spying, intrusion, disclosure, or disclosure. Privacy is a private space, private activity, or private information that a natural person has a peaceful private life and is unwilling to be known to others."

Therefore, although the archetypal characters do not own copyright in their personal experiences, they have the right to prevent others from insulting and slandering them, protect their reputation from damage, and protect their privacy from infringement.

In theory, if the adaptation of a film and television drama is determined not to infringe the reputation and privacy rights of the prototype character, then authorization from the prototype character is not required. However, film and television works emphasize story lines and dramatic conflicts, and may need to add fictional plots to the facts for embellishment or re creation. If the plot involves the marriage, affection, etc. of the archetypal character, it will inevitably touch or involve the privacy events of the archetypal character. However, after the fusion of facts and fictional plots, it may be inconsistent with the cognition and evaluation of the archetypal character, resulting in dissatisfaction of the archetypal character, It can even lead to the prototype character feeling insulted, slandered, or damaged in reputation. Therefore, in this case, obtaining the authorization of the prototype character is mainly to obtain the consent of the prototype character regarding the circumstances that may involve his reputation and privacy rights in the film and television drama.

In addition, if the film and television drama is adapted based on unknown real events, it means that the personal experiences of the prototype characters that are not known will be made public. In this case, prior consent must be obtained from the prototype character. Otherwise, there is a legal risk that film and television dramas may infringe upon the privacy rights of prototype characters.

If the prototype character has died, authorization or exemption can be obtained from the close relatives of the deceased prototype character. The scope of close relatives generally refers to Article 1127 of the Inheritance Chapter of the Civil Code of the People's Republic of China regarding the scope and order of heirs.

2. The need for project approval of special theme film and television dramas

Currently, there are no detailed legal provisions for film and television dramas based on the true stories of prototype characters. In practice, film and television companies mainly need to pay attention to the opinions of competent departments such as the State Administration of Radio, Film and Television.

Article 6 of the "Regulations on the Filing of Screenplays (Outline) and the Administration of Movies" stipulates that "Where the main characters and plots of a film involve diplomatic, ethnic, religious, military, public security, judicial, historical, and cultural celebrities, etc. (hereinafter referred to as special subject matter films), it is necessary to provide a film literary script in triplicate, and seek the opinions of the relevant competent departments of the provincial, central, and national authorities." The "Instructions for Filing and Project Initiation" further requires that "if historical and cultural celebrities are involved, a written opinion from the person or relative who agrees to take the shot is also required."

3. Based on the need to clarify the ownership of copyright in a work under special circumstances

Generally, the copyright of a work created by a film and television company based on a prototype character, a real person, and a real story belongs to the film and television company. However, in accordance with Article 14 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Civil Disputes over Copyright", There is a special type of situation: "For autobiographical works that the parties agree to complete based on the experience of a specific character, if the parties have an agreement on the ownership of the copyright, the agreement shall prevail. If there is no agreement, the copyright belongs to the specific character, and if the author or arranger pays labor for the completion of the work, the copyright owner can pay appropriate remuneration to it." This situation is relatively common in written works, but relatively rare in film and television dramas, Generally, it is a character autobiographical documentary (which requires the prototype character to agree with the film and television company, and the prototype character to participate in the creation of autobiographical film and television dramas). In this case, in order to avoid disputes, the film and television company must clearly agree on the ownership of the copyright of the work in advance.

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