Amid the vigorous development of the audiovisual industry, the question often arises: are creative similarities acts of plagiarism, or are they merely conceptual similarities? This is a controversial issue frequently reported by popular media outlets and discussed by the public. For instance, the Taiwanese film Dear Ex (2018) was involved in a script plagiarism dispute; Who Killed Cock Robin (2017) was accused of script plagiarism upon its release; and I Weirdo (2020) was accused of plagiarizing its character profiles off of the Malaysian film Million Loves In Me (2016).

Based on these cases, it seems that as soon as some resemblances are observed between the story outlines or between character profiles in two audiovisual works, disputes around plagiarism are quick to follow. However, does this mean that any similarities between the elements of two works could lead to plagiarism disputes under the Copyright Act in Taiwan? In this article, we will analyze the judgment of the infringement lawsuit between A Chance of Sunshine by Taiwanese picture book artist Jimmy and the music video of the song “Late Marriage” by Taiwanese singer Jody Chiang (the “Late Marriage Music Video Case” or the “Case”). Through the Case, we will discuss what constitutes an act of plagiarism in the audiovisual industry according to the Copyright Act in Taiwan.

I. Introduction to the Case

1. Facts

In 1999, Jimmy, a well-known Taiwanese picture book artist, published the picture book A Chance of Sunshine. The picture book illustrates the story of a woman and a man who have never met despite living in the same apartment building. One day, the two finally meet, and they exchange contacts. Unfortunately, the rain obscures the notes, and they lose contact ever since.

In 2000, Daishin Music Co., Ltd. (“Daishin Music”) produced and published the song “Late Marriage” for singer Jody Chiang, and they commissioned the director Kuang Sheng to shoot a music video for the song. The plot of the music video is as follows: a woman meets a man who could have been her soulmate, they exchange phone numbers, but the rain obscures the notes. The two lose the chance to be with each other, leading to her remaining unmarried for life.

Jimmy found most of the plot and the scenes of the music video to be highly similar to A Chance of Sunshine. Subsequently, he filed a civil lawsuit with the Taiwan Taipei District Court against Daishin Music and the director of the music video, claiming copyright infringement.

2. The Courts’ holdings

Copyright infringement in terms of plagiarism is determined based on two elements in Taiwan: (i) access to the plaintiff’s work, and (ii) substantial similarity. That is, if the defendant has had the chance to access the plaintiff’s work, and the two works are substantially similar, then the defendant is determined to be plagiarizing and infringing the copyright of the plaintiff.

Reviewing the Late Marriage Music Video Case, the first instance court determined that the defendants met the required element of access and the two parties’ works are substantially similar, so the defendants infringed Jimmy’s copyright. However, the court of second instance vacated the first instance judgment by deciding that the Case does not meet the required element of access, and that the two parties’ works do not constitute substantially similar works. The second instance court instead issued the judgment that the defendants did not infringe the copyright of the plaintiff, Jimmy, and the judgment has become final and unappealable. Since the holding of the second instance court was completely different from that of the first instance court, we provide below a summary of the courts’ holdings to facilitate further discussion.

Holdings of the first instance court [1]:

• Access: The Taiwan Taipei District Court found that in the Case, the filming date of the music video was in February 2000, while the picture book was published in 1999. The picture book sold 80 thousand copies in a year and a half and received multiple awards. Therefore, considering the fact that the plaintiff’s picture book was sold in the marketplace and accessible to the public in stores, the court deemed that the Case meets the required element of access.

• Substantial similarity: After comparing the content of the “Late Marriage” music video and A Chance of Sunshine, the court found that despite the two works having differences in plot order, their main contents and structures have major overlaps, and many details are similar: both male leads play the violin, the main characters meet at a circular infrastructure in the park, they leave each other their numbers before parting, the notes are obscured by the rain, they are nearby and yet always end up missing each other, etc. The combinations of these structures and arrangements in the two works are highly similar. The concepts expressed by the two works, along with the structures, arrangements, composition, and the emotional arcs of the main characters of the stories have reached sufficient similarity.

Holdings of the second instance court [2]:

• Access: The Taiwan High Court found that since the plaintiff’s picture book had only sold 80 thousand copies within the one and a half year after it was published, in the context of Taiwan’s population of 23 million, the probability of accessing the plaintiff’s picture book was not high. Although the plaintiff’s picture book had been selected as one of the top ten most influential books by Kingstone Bookstore and other bookstores, the court determined that outside of the population who love to frequent bookstores and read picture books, other people would not have noticed and read the plaintiff’s picture book. Moreover, some scenes in the music video are indeed similar to scenes in other videos, and the defendants were likely inspired by similar expressions in other sources. The Case thus does not meet the required element of access.

• Substantial similarity: The court conducted a detailed analysis of the plaintiff’s picture book and the defendants’ music video, examining the order of events and character interactions as follows:

The plaintiff’s picture book:

1. A man and a woman live in the same apartment building;
2. The two live their own separate lives and do not know each other;
3. They meet beside a fountain in a park;
4. They have a great time together strolling around the park and riding a merry-go-round;
5. When it starts raining, they cover their heads with their clothes and write down their numbers on notes before parting in haste;
6. The writings on the notes are obscured by the rain;
7. They cannot call to get in touch;
8. They get lost in the maze that is the city; they walk the same sidewalk, kiss the same baby;
9. They independently decide to leave the city and travel elsewhere;
10. They reunite on a field of snow.

The defendants’ music video:

1. A man and a woman;
2. Separately, they shine flashlights on their faces at home, and they take the metro;
3. They bump into each other at a circular shrub landscape in the park;
4. They chat in the park; the man plays with a spring rider; the woman plays with a swing;
5. When it starts raining, they cover their heads with their clothes and write down their numbers on notes before parting;
6. The writings on the notes are obscured by the rain;
7. They cannot call to get in touch;
8. The woman walks on a footbridge; one enters the metro while the other exits; the man exits a store while the woman is drinking coffee and searching for something with her head down, and the two miss each other yet again;
9. While packing, the woman sees her jacket and reminisces about the scene in the rain where they said goodbye; the woman takes her luggage and leaves.

The second instance court accepted the expert testimony given by the expert witness Ming-Yan Shieh, a professor at National Taiwan University, and decided that items 1, 2, and 10 of the two works are completely different. As for items 3, 4, 8, and 9, while the concepts expressed by the two works carry similarities, the specific events and the interactions between the man and the woman are not the same, so these items are not substantially similar. Items 5, 6, and 7 are considerably similar and should constitute substantial similarity.

Based on the analysis above, the Taiwan High Court determined that since only three items are substantially similar among the orders and character interactions of the ten key events in the picture book and the music video, the court could not reach the finding that the music video and the picture book are substantially similar.

II. Discussion of legal issues

The Case examined here is a classic copyright infringement case involving an audiovisual work in Taiwan. The first instance court made its determination of similarity between the two parties’ works based on the overall concepts, structures, arrangements, and composition of the stories. The second instance court itemized the major events in the stories of the two works and then compared each item in detail one by one. Below is a further discussion of the methods for evaluating plagiarism in audiovisual works.

1. The difference between ideas and expression

According to Article 10-1 of the Copyright Act, protection for copyright shall only extend to the expression of the work in question, and shall not extend to the work’s underlying ideas or concepts. In practice [3], the courts have always recognized that an idea cannot be claimed for exclusive use, that everyone should be able to use ideas freely, and so there is no issue of plagiarism with respect to ideas.

As exemplified by the Case, the ideas in the story of Jimmy’s picture book as a whole, such as two people meeting by chance, love at first sight, unknowingly crossing paths, ill-fated separation etc. are all common tropes in love stories. These kinds of abstract narrative ideas can be employed by anyone to be further developed into different expressions, so they are not protected by Taiwan’s Copyright Act. However, if these abstract ideas are further developed into concrete expressions such as literary or artistic works, and similarities are found between their expressions, then further analysis is needed to determine whether the act constitutes plagiarism under the Copyright Act.

2. Plagiarism as prescribed by the Copyright Act

As seen above, many people have the misconception that if the plots and ideas of two stories are similar, then one party must have committed plagiarism. However, the Copyright Act in Taiwan is intended to incentivize cultural creativity rather than to protect abstract ideas. Thus, it is appropriate to discuss the possibility of plagiarism only when the expressions of abstract ideas are substantially similar. Furthermore, even where similarities are found between two independently created expressions, this in itself does not constitute plagiarism as prescribed by the Copyright Act. To establish plagiarism, it must be determined that the defendant has accessed or has had the chance to access the plaintiff’s work, and that the works of the two parties are substantially similar. Only then does the defendant’s act constitute plagiarism as prescribed by the Copyright Act. The Case discussed in this article shows that whether the court conducts a detailed breakdown and analysis of the defendant’s and the plaintiff’s works can influence its decision regarding the required element of substantial similarity. In conclusion, the determination of plagiarism as prescribed by the Copyright Act differs in some aspects from plagiarism as intuitively perceived by the public. In practice, detailed legal analysis is needed to determine whether similarities between stories constitute plagiarism as prescribed by law.

This is a translation of the original article in Chinese, which can be found here.

Translated by Catherine Chen.

If you would like to know more about regulations regarding artistic creation, copyright, and other legal matters, please feel free to contact Ling-ying Hsu at lhsu@winklerpartners.com.

Written on August 1, 2023 by Ling-ying Hsu.

Translated on September 20, 2023 by Catherine Chen.

[1] Please see Taipei District Court Civil Judgment No. 89-Su-4859.

[2] Please see Taiwan High Court Judgment No. 90-Shang-1252.

[3] Please see Supreme Court Judgment No. 81-Tai-Shang-3063.