"Ten Send the Red Army" is a household song, and with its beautiful and smooth melody and heartfelt lyrics, it has been a favorite of people for decades. However, with the broadcast of the TV series "The Long March," a copyright lawsuit has surfaced over who actually wrote the song. Recently, the composer Wang Yong v. Air Force Song and Dance Troupe composer Zhu Zhengben, CCTV, General Administration Song and Dance Troupe composer Wang Yunzhi infringement of copyright disputes in the second trial in the Beijing Municipal People's Court of the First Intermediate Level.
First trial: Wang Yong enjoys the copyright of "Send Comrade Brother to Beijing"
Prior to this, the case has been the first trial of the Beijing Municipal Haidian District People's Court. The appellant Wang Yong in the first trial had claimed that the song "send comrade brother to Beijing" (hereinafter referred to as "send" song) copyright holder, in 1960 Zhu Zhengben according to "send" tune for adaptation, the formation of the song "ten to send the Red Army" (hereinafter referred to as the "ten" song). 2001 June, the CCTV television series broadcast in the "Long March" used many times in the "ten" song, Wang Yunzhi of the song of the partial content Wang Yunzhi adapted parts of the song to add harmonies. During the broadcast of the drama, the author was initially indicated as Wang Yunzhi only, and then, upon Zhu Zhengben's proposal, the author was changed to Zhu Zhengben and Zhang Shixie, an outsider. Wang Yong argued that Zhu Zhengben concealed the fact that the Ten Songs were adapted from the Songs of Delivery, that Wang Yunzhi modified and signed the Ten Songs without the appellant's permission, and that CCTV used the Ten Songs extensively in its broadcast of the play The Long March but did not indicate that they were adapted from the Songs of Delivery and did not pay remuneration. Accordingly, the actions of the above parties infringed on the Appellant's copyright, and the Court was requested to recognize the Appellant as the copyright owner of the Song of Delivery, to recognize that the Song of Ten was adapted from the Song of Delivery, and to order the above parties to stop infringing on the copyright and to pay compensation of 100,000 RMB for the loss. The first instance judgment confirmed Wang Yong's copyright of the song "Sending", but rejected other claims. Wang Yong appealed, requesting the court to support the first instance claim.
Both parties had no major objections to the first-instance judgment that Wang Yong enjoyed the copyright of the song "Sending". The song "Sending" is an adapted musical work based on the Jiangxi Gannan folk song "Long Song" by Wang Yong. The Court of First Instance found that although the Song of Delivery and the Long Song share certain similarities in terms of beat, melody, key, and form, there are also many differences, mainly: the structure and combination of words and music are different, the expression of feelings is different, two bars have been added, and another three bars are obviously different. It is these differences that reflect the originality of the song "Sending" and the appellant's thoughts and feelings and personality, thus enabling the appellant's work to be distinguished from previous works and forming a different musical style and musical image. Therefore, the court held that the song "Sending" had reached the degree of creativity required for the adaptation, and the appellant enjoyed the corresponding copyright. At the same time, although Wang Yong adapted the song "Sending", he did not sign his name. The trial court held that China had not yet promulgated the Copyright Law when the song "Sending" was completed, and people were not clear about the copyright and the way the author signed his name, etc. However, the improper signing of the name at that time could not forever deprive Wang Yong of the right to sign his name later as an adapter, and that as long as a piece of work is creative and meets the requirements for creating or adapting a piece of work, the author could later demand the restoration of the truth of his own identity.
The second trial: whether Ten Sent to the Red Army was adapted from Sending Comrade Brother to Beijing
In the second trial, the disagreement between the two sides lay in whether the basis for the adaptation of Ten was the Sent song or the Long Song. The issue centered on whether Zhu Zhengben had been exposed to the Song of Sending when he composed the Song of Ten and whether the Song of Ten used eight or four bars of the Song of Sending, which is original to the Song of Sending.
Wang Yong argued that Zhu Zhengben adapted the Ten Songs from the Send Songs on the basis of his actual exposure to the Send Songs. He said that in 1960, Zhu Zhengben and others had traveled to Jiangxi Province specifically to pick up winds and were invited to participate in the Jiangxi Provincial Rural Amateur Concert held in Jiujiang City, Jiangxi Province. They listened to the singing of the repertoire including the "Sending" song in the performance and got the program materials distributed by the Jiangxi Provincial Musicians' Association, and were also invited to attend the symposium of the Ji'an team, the performing unit of the "Sending" song, and recorded the song and the score. Wang Yong said that it was on the basis of being invited to the meeting, listening to the singing of the song "Sending" and recording the score of the song "Sending" that Zhu Zhengben composed the song "Ten". This fact is confirmed by the books published at that time.
To this, Zhu Zhengben refuted, as a wind picker to pick the wind, will inevitably come into contact with some of the local folk songs, and will intentionally collect and organize, this is undeniable. However, there is no conclusive evidence to prove that he had listened to the "send" song and read the "send" song score. And even if he did come into contact with the "Sending" song, he could not be considered to have adapted it accordingly, let alone be found to have infringed upon it. Because at that time, he had collected different versions of the "Long Song" and listened to the publicist's singing and performance programs. The fact that the Song of Delivery and the Song of Ten originated from the same folk song, the "Long Song", would make it inevitable that the two would have many similarities. On the other hand, since the song "Sending" was not signed at that time, even if they came into contact with the song "Sending", they would not have known that it was adapted by Wang Yong, and would only have considered it to be a different way of singing "The Long Song", without any intent to infringe. They agreed with the final finding of the trial: at most, they could only conclude that the Ten Songs merely borrowed the relevant parts of the Send Songs in the process of creation.
Wang Yong believes that "borrowing", the key is the degree of use, if it is reasonable use, then it does not constitute infringement, if it is beyond the scope of reasonable use, then it constitutes infringement. How will constitute infringement, then depends on the trial court determined that the "relevant part of the borrowing" what is the content? Thus, the "relevant part" to what extent is the key to the case. According to their analysis: firstly, by comparing the A section of the "Ten" song and the "Sending" song, the melody and the door of 21 out of 24 bars of the "Ten" song and the "Sending" song are identical, and the 8 original bars of the "Sending" song for the "Long Song" are completely included in the A section of the "Ten" song, which is the main theme of the "Sending" song. Secondly, there is no possibility of coincidence that the notes and note arrangements of the 36 measures in the A, B, and C sections of the Ten Song are identical to those of the Sending Song. Based on this, they argued that the fact that parts of the Ten Song and the Sending Song are identical is "plagiarism" rather than natural "coincidence", and that the Ten Song was adapted from the Sending Song rather than merely "borrowing the relevant parts of the Sending Song". The ten songs were adapted from the Song of Sending rather than merely "borrowing the relevant parts of the Song of Sending.
Zhu Zhengben, on the other hand, believes that there are many versions of the Song of Songs, and that the special features of Wang Yong's so-called adaptation of the Song of Songs are in fact reflected in the other musical materials and singing styles of the Song of Songs to varying degrees. Zhu Zhengben said that he gained nourishment and inspiration for his creation from other singing styles of The Long Song. And from the examination of the way of combining words and songs, the Ten Songs is closer to the Changge, inheriting the style of one song and three sighs, while the Sending Songs has words sung on the crossing gate, which is obviously different from the Changge's crossing gate without words, and there are differences in the expression of feelings and ideological themes in the two, so it can be seen that in terms of the style and the tone of the expression of feelings, the Ten Songs and the Changge are much closer to one another, and it should be recognized that the Ten Songs is using the Changge as a basic matrix for its adaptation. as the basic matrix of the adaptation.
In addition, Wang Yong also elaborated on the willfulness of Zhu Zhengben's infringement. He believes that, in accordance with China's copyright law and judicial practice, copyright infringement of no-fault liability, infringement of willfulness is not a constitutive element of infringement, can not be no willfulness and negate the nature of the infringement.