Judgments of substantial similarity between works in China

By Chen Jing, Commerce & Finance Law Offices

The Guidelines of Beijing Higher People’s Court for Adjudication of Copyright Infringement Cases was issued officially on 20 April 2018.

Articles 10 and 11 in the guidelines stipulate: “The storyline and historical context in the works based on the same historical theme belong to the ideological category. When selecting a certain type of theme for creation, it is inevitable to adopt certain events, characters, layouts and scenes. Such indispensable expression of a particular theme is not protected by copyright law. In terms of the comparison of two works, we should focus on finding out whether the infringed works have used the original expression of the prior works in describing the relevant history.”

陈敬 CHEN JING 通商律师事务所合伙人 Partner Commerce & Finance Law Offices
Commerce & Finance Law Offices

This provision, to a certain extent, offers trial ideas for copyright infringement and dispute cases involving works on real historical themes. This article discusses the criteria for determining substantial similarity between works, with real works on historical themes as an example based on the above-mentioned provisions.

In China, copyright infringement and disputes related to real historical themes mainly occur between the novel and the script or TV series, and between the script and the TV series. For example, in 2016, Huace Group, the share leader of film and TV, was suspected to have infringed the rights of adaptation and shooting of three related novels written by Chen Junjing for the TV series Wei Zifu – Wei Zifu was an empress in ancient China and died in 91 BC – and was sued in the Haidian District People’s Court of Beijing municipality. The case is still with the court.

Such historical works are different from fictional works. Generally, they are represented by specific historical figures and events, and follow the principle of “great events are not fabricated, and small things cannot be confined”. These works are created in accordance with the Twenty-Four Histories and other official materials or mainstream historical viewpoints, supplemented by proper fabrication and processing based on real historical facts.

Substantial similarity between works means there are substantial identities or similarities in the expression of later works and prior works, resulting in the same or similar appreciation experience among the public. To determine whether there are substantial similarities between the later works and the prior works, the “abstract-filter-comparison” method can be adopted.

“Abstract” is to determine the rank level of compared contents. In specific cases, in order to expand the scope of original creative contents in his or her works, the plaintiff can sort out the works step by step following the “expression ideology” pyramid, extracting that part of the works that does not stick to the details of the works (e.g. specific wording, sentences etc.) and also reflecting the originality of the author.

In the “expression ideology” pyramid of historical works, storyline and core historical context may not be protected by the copyright law due to its location at the “ideology” level. They may also be filtered out and excluded from the comparative range advocated by the plaintiff, in that the storyline and core historical context are consistent with the historical facts, belonging to public resources rather than the original expression of the author.


Article 7.3 of the guidelines stipulates: If the defendant can prove that the expression of the alleged infringing works is the same or substantially similar with that of the works claimed by the plaintiff in that its ways of expression are limited, the defence of limited expression must be deemed established.

Article 7.4 of the guidelines stipulates: If the defendant can prove that the expression of the alleged infringing work is the same or substantially similar with that of the work claimed by the plaintiff, in that the expression of a subject must involve the description of a scene or the use of the design of a scene, the defence of indispensable scene must be deemed established.

The above “limited expression” doctrine or “indispensable scene” doctrine is not a special comparison principle for judging substantial similarity in works on historical themes. They have been used many times in cases concerning other types of film and TV dramas.

However, due to the works on historical themes with a true historical background, their plot extensions and logical arrangements need to conform to the true development sequence of history, and their important plots or bridges may not violate major historical facts. “Limited expression” or “indispensable scene” are often used more intensively and frequently in works of historical themes than those of other themes. Since such expressions lack originality, they should also be filtered out and excluded from the comparison scope advocated by the plaintiff.

It is worth noting that, although restricted by historical facts, works on historical themes are by no means history textbooks. In addition to describing history, the authors can, based on the essence of history and respect for historical facts, reconstruct the story through flexible combination of historical events, and reflect their originality through artistic fiction of “trivial matters”.

Meanwhile, although the relationships between the core characters in works on historical themes need to be consistent with the social relations in historical facts, the historicity of these characters does not exclude their rich and fresh personality.

In the works on historical theme, authors can strengthen the originality of the works by portraying the characters and narrating in detail the related events on the premise of fixing the relationships between the core characters and making the growth of the characters align with the growth course of the historical figures.

All of the above may constitute the original expression of the prior works, and be included in the scope of comparison and subject to comparison with the corresponding parts of the later works.

Chen Jing is a partner at Commerce & Finance Law Offices. She can be contacted on +86 10 6569 3399 or by email at chenjing@tongshang.com