Hot spot · analysis

"Jin Dong, hundreds of salary arrears to the crew"—— A lawyer tells you how to defend your rights legally

On the afternoon of February 17th, the Beijing Association of Actors and Actors issued a document stating that the TV series "Lin Shen Meets the Deer" starring Jin Dong and Li Xiaoran had defaulted on the salaries of hundreds of the crew members, and hundreds of them held banners and nameplates to discuss their salaries. They hoped that the relevant departments would investigate and punish them. As soon as the article was published, it triggered a heated debate.

On the evening of February 17th, actor Jin Dong posted an online article denying the fact that he was in arrears in salary, and said that he was also puzzled about it, and his anger could be felt between the lines.

After the rumor was dispelled by actor Jin Dong, a netizen revealed that the "Beijing Association of Actors" account no longer exists, and before the account disappeared, a message was posted saying, "There was a problem with the financial connection, and all salaries have been settled.".

"We will not comment on the authenticity of the facts involved in the above online post for the time being, but will simply discuss from the perspective of how the crew members should correctly and legally claim compensation through legal channels, in order to avoid the compensation of salary collectors not being held responsible for infringement, and to avoid public figures such as Jin Dong being subjected to" unwarranted disasters. "".

1、 Who should be the defendant to file a legal lawsuit against the crew for salary arrears?

The drama crew is a temporary organization established during the process of film and television production. The drama crew is not an independent legal person in law and does not have the qualification of a civil litigation subject. "If the cast members of the drama team seek compensation through legal proceedings and only list the" XX TV series production team "as the defendant, the court will refuse to file a case based on the disqualification of the subject.". However, it is customary in the film and television industry to organize various work related to the production of film and television works in the name of the crew, including signing contracts with the cast members. Although the crew does not have the independent legal personality, in practice, the court usually determines that a contract signed in the name of the crew is valid, and the rights and obligations of the contract are assumed by the company embodying the crew's official seal, that is, the producer of the film and television series. Therefore, the "film and television producer" should be considered as the defendant in the lawsuit filed by the cast members requesting payment of labor remuneration.

On the premise of clarifying who should be the defendant, the specific identification of the defendant - the "film and television drama producer" - can be achieved through the following channels:

1. The producer of the film and television series is determined by the "producer" or "co producer" or "producer" who signs the title or ending of the film and television series. That is, the cast members may use one or more of the producers, co producers, or producers of the film and television series as defendants in a salary claim. As for the division of responsibilities among the producer, co producer, and producer, the cast members can completely dispense with proof, which is the definition of internal responsibilities between the parties.

2. The filing party that has filed the official seal of the drama team with the public security department determines the "film and television drama producer". The main body of the establishment of a film and television series is usually the producer of the film and television series. When establishing a film and television series production team, the producer usually imprints the official seal of the production team. During the process of engraving the official seal of the production team, the producer of the film and television series will submit the filing materials for the engraving of the official seal of the production team in accordance with the regulations of the public security department. Therefore, the responsible person shall be determined from the filing materials engraved with the official seal of the production team.

2、 What evidence should performers pay attention to when seeking salary?

1. The employment contract or labor contract signed between the cast and the crew;

2. Work achievements, such as script outlines, story sketches, character biographies, and scripts written by screenwriters;

3. Work emails and WeChat chat records communicated with relevant personnel of the production team;

4. Meeting minutes, work records, etc;

5. Other records related to the provision of labor services, etc.

Lawyer · Q&A

Q: Can the crew report to the police if they discover that their scripts have been stolen and sold online?

A: Alarm refers to reporting a critical situation or sending a critical signal to the police through telephone, network, letter, or other means to protect the country, public interests, personal, property, and other rights of oneself or others from loss. In general, what we call an alarm is to call 110. As long as the alarm is within the legal scope and belongs to a situation that 110 should accept, the alarm will have an effect, and the police should handle it accordingly.

However, whether or not one's own script has been stolen and sold online falls within the scope that 110 should accept and handle, depending on the situation, different analysis is required. The scope of admissibility is mainly based on the "Law of the People's Republic of China on Administrative Penalties for Public Security" and the "Criminal Law of the People's Republic of China". The act of stealing and selling one's own script online is an infringement of copyright. If the act of stealing and selling is serious and constitutes a crime in accordance with the Criminal Law of the People's Republic of China, the crew can call the police and the 110 police should deal with it. However, if it does not constitute a crime, the 110 police may not handle it. Due to the fact that there are many provisions in the "Law of the People's Republic of China on Administrative Penalties for Public Security" on "disrupting public order, impairing public safety, infringing personal and property rights, and impairing social management", among others, there are no relevant provisions on infringement of copyright. Therefore, if the circumstances of online theft and sale of one's own script are not serious and do not constitute a crime, the 110 police may not accept it.

Guidance: Article 2 of the Law of the People's Republic of China on Administrative Penalties for Public Security stipulates that those who disrupt public order, jeopardize public safety, infringe upon personal and property rights, impede social management, and have social harmfulness, and constitute a crime in accordance with the Criminal Law of the People's Republic of China, shall be investigated for criminal responsibility in accordance with the law; "If it is not serious enough for criminal punishment, the public security organ shall impose administrative penalties for public security in accordance with this Law.".

Q: If someone steals and sells their own scripts online, how can the crew protect their rights?

Answer: According to the relevant provisions of laws and regulations such as the Copyright Law, China's copyright protection system provides judicial and administrative protection to copyright holders.

1、 According to the judicial protection system, the obligee can file a civil lawsuit, and the judicial authority will investigate the civil liability of the infringer according to law; If the infringement is suspected to constitute a crime, the judicial authority will investigate the criminal responsibility of the infringer according to law after the public prosecutor files a criminal lawsuit.

1. Civil liability

If a script is stolen and sold online, the crew can sue the infringer and request the court to judge the infringer to stop the infringement, eliminate the impact, apologize, compensate for losses, and so on.

Article 52 of the Copyright Law stipulates that anyone who commits any of the following acts of infringement shall, depending on the circumstances, bear civil liability for stopping the infringement, eliminating the impact, making an apology, and compensating for losses: (1) publishing his work without the permission of the copyright owner... (11) other acts of infringement of copyright and rights related to copyright.

2. Criminal liability

If your script is stolen and sold online, and the circumstances are serious enough to constitute a crime, the crew can call the police. According to the Criminal Procedure Law of the People's Republic of China, public security organs should conduct investigation and file a case, and then submit it to the procuratorate for review and prosecution. Finally, the court will hear a judgment and investigate the criminal responsibility of the infringer.

Law guidance: Article 217 of the Criminal Law of the People's Republic of China [Crime of Infringement of Copyright] stipulates that anyone who, for the purpose of making profits, commits one of the following violations of copyright or copyright-related rights, and the amount of illegal gains is relatively large or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years and shall also, or shall only, be fined; "If the amount of illegal gains is huge or there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined: (1) Without the permission of the copyright owner, copying and distributing their written works, music, fine arts, audio-visual works, computer software, and other works specified by laws and administrative regulations, or disseminating them to the public through information networks..."

2、 According to the administrative protection system, in the case of infringement that harms the public interest, after a complaint is filed by the obligee or reported by an insider, or after the administrative organ files a case for investigation on its own, the administrative organ shall investigate the administrative responsibility of the infringer in accordance with the general law.

The authority that accepts copyright administrative complaints is the copyright administrative department at all levels. After discovering that their own scripts have been pirated and sold online, the crew can, depending on the circumstances, file a complaint with the copyright administration department (Copyright Office) in the place where the infringement occurred, the place where the infringement results occurred (including the place where the infringing copies are stored, legally sealed and detained, the place where the infringing website server is located, the place where the infringing website sponsor resides, or the main business site), and request that the infringer be subject to administrative punishment.

After receiving a complaint, the copyright administration department will investigate the suspected infringement and make one of the following handling decisions based on the investigation results: (1) imposing administrative penalties on the infringer; （2） "If the infringement is minor, no administrative penalty may be imposed;"; （3） "If the facts of infringement are not established, no administrative penalty shall be imposed;"; （4） If the case is suspected of constituting a crime, it shall be transferred to a judicial organ for handling.

Article 53 of the Copyright Law stipulates that anyone who commits any of the following acts of infringement shall bear the civil liability specified in Article 52 of this Law according to the circumstances; "If an infringing act simultaneously harms the public interest, the department in charge of copyright shall order the infringing act to cease, issue a warning, confiscate the illegal proceeds, confiscate and innocuously destroy the infringing copies and the materials, tools, and equipment mainly used for the production of infringing copies. If the illegal business amount exceeds 50000 yuan, a fine of between one and five times the illegal business amount may also be imposed."; "If there is no illegal business amount, the illegal business amount is difficult to calculate, or is less than 50000 yuan, a fine of not more than 250000 yuan may also be imposed;"; "If a crime is constituted, criminal responsibility shall be investigated in accordance with the law: (1) Copying, distributing, performing, showing, broadcasting, compiling, or disseminating a work to the public through information networks without the permission of the copyright owner..."

3、 Other ways of safeguarding rights

In addition, the crew can consider filing a complaint with the online platform, requiring the online platform to take necessary measures to delete, block, disconnect links, and other necessary measures against infringing sellers to stop the act of stealing and selling scripts. For example, if the act of stealing and selling scripts occurs on Taobao or Xianyu platforms, the crew can use“ https://ipp.alibabagroup.com/ Alibaba Group's intellectual property protection platform ".

Law guidance: Article 195 of the Civil Code of the People's Republic of China stipulates that if a network user uses a network service to commit an infringement, the obligee has the right to notify the network service provider to take necessary measures such as deleting, blocking, and disconnecting links. The notice shall include preliminary evidence of infringement and the true identity information of the obligee. After receiving the notice, the network service provider shall promptly transmit the notice to the relevant network users, and take necessary measures based on the preliminary evidence of infringement and the type of service; "If necessary measures are not taken in a timely manner, the user of the network shall be jointly and severally liable for the expanded portion of the damage.".
Article 197 of the Civil Code of the People's Republic of China stipulates that if an internet service provider knows or should know that an internet user has infringed upon the civil rights and interests of others by using its internet service, and fails to take necessary measures, it shall bear joint and several liability with the internet user.

Industry · New Deal

"Outline for Building a Strong Intellectual Property City in Shanghai (2021-2035)"

On January 13th, the Shanghai Municipal Government held a press conference to introduce the "Outline of Building a Strong City with Intellectual Property Rights in Shanghai (2021-2035)" and the "14th Five Year Plan" for the Protection and Application of Intellectual Property Rights in Shanghai. The overall goal of "two steps" was proposed, namely, to basically build an international intellectual property protection highland by 2025; By 2035, an international intellectual property center city with complete systems, sound systems, superior environment, and leading standards will be basically built.

"Interim Provisions of Shanghai Municipality on the Management of the Contents of Secret Room Screenplay Killing"

On January 13th, the Shanghai Municipal Bureau of Culture and Tourism issued the "Interim Provisions on the Management of the Contents of Secret Room Screenplay Killing in Shanghai", becoming the first city in China to officially incorporate the management of Secret Room Screenplay Killing. The regulations require business entities to establish and improve a content self audit system, equip content auditors, implement corresponding technical regulatory measures, conduct self inspection and management of content and activities such as scripts used in business, scenes set, clothing and props provided, and ensure the legality of content and activities; It is stipulated that "business units should establish and improve the protection mechanism for minors, and for secret room script killing activities that are not suitable for minors to participate, business units should give a prompt in a prominent location or before the activity, and should not allow minors to enter"; It is clearly stipulated that "the operating unit shall, within 30 days from the date of putting the script on the shelf, file and register the self reviewed script with the local culture and tourism bureau.".

Regulations of Jiangsu Province on the Promotion and Protection of Intellectual Property Rights

On January 14th, the 28th meeting of the Standing Committee of the 13th Jiangsu Provincial People's Congress formally deliberated and adopted the Jiangsu Provincial Regulations on the Promotion and Protection of Intellectual Property Rights. This regulation is the first provincial and local regulation on the promotion and protection of intellectual property rights in China, and will come into effect on April 26th of this year's World Intellectual Property Day.

"Opinions on Further Standardizing the Professional Behavior and Social Activity Management of Announcers and Hosts"

On January 25th, the General Office of the Propaganda Department of the Central Committee of the Communist Party of China and the General Office of the State Administration of Radio and Television promulgated the "Opinions on Further Standardizing the Professional Behavior and Social Activity Management of Radio and Television Broadcasters and Hosts", which requires radio and television broadcasters and hosts, as an important force for the Party's propaganda, ideological and cultural undertakings, to have a firm political stance, noble moral qualities, extensive cultural knowledge, lofty professional spirit, and excellent work skills.

The opinion clearly states that the system of prior approval or filing shall be implemented for announcers and hosts to participate in social activities of external units; The participation of announcers and hosts in various commercial activities such as advertising endorsements, commercial promotions, and online shopping must be approved by the broadcasting organization they belong to. This opinion proposes that announcers and hosts should adhere to the principle of attaching equal importance to standardization and development in conducting online live broadcasting, text, audio, and video information dissemination through online platforms, and propose management requirements based on the different nature of job behavior information, personal information, and other information.