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recently, a netizen posted a video saying that the wild goose and fish bronze lamp cultural and creative product created by the shaanxi history museum was suspected of plagiarizing his work in 2013. the netizen said that the image of the "wild goose and fish lamp" he created was based on the "painted wild goose and fish" unearthed in shuozhou, shanxi, and showed the relevant work certificate.

in response, staff at the shaanxi history museum said that the cultural and creative works mentioned by netizens were created based on the cultural relics in the shaanxi history museum's collection, "in fact, we are the ones who were plagiarized."

image source: yanyu cultural and creative xiaohongshu account

so who is plagiarizing whom if multiple museums have collections of the same?

yanyu cultural creativity said that the image of the yanyu lantern produced by the company was based on the painted yanyu lantern unearthed in shuozhou, shanxi, which is now in the collection of the national museum of china. this cultural creation has its own innovative points and relevant cultural creation copyright certification documents.

in response to this controversy, the staff of shaanxi history museum responded that the cultural and creative works of shaanxi history museum were created based on the cultural relics in the museum collection and were not plagiarized. if "yanyu cultural creation" reports that the museum is suspected of plagiarism, the first thing to do is to see whether it has the copyright.

a bronze lamp with painted geese and fish in the collection of the national museum of china (source: national museum of china)

judging from the comparison pictures released by yanyu cultural and creative, the two yanyu lantern cultural and creative products are similar in appearance. it is obvious that the prototype of the cultural relic is the yanyu lantern, but the colors of the two cultural and creative products are quite different. netizens have different opinions on whether these two cultural and creative products are infringement or plagiarism. some people think that "they are derived from the same cultural relic, so the shape must be the same. if the shape is the same, then it is a problem of color. how can you say that the color is very different?" but some people think that this cannot be said. after all, the prototypes of the two cultural and creative products are two different yanyu lantern cultural relics, and the yanyu cultural and creative yanyu lantern cultural and creative product was released earlier than the shaanxi history museum cultural and creative product and the copyright was also registered. "originality is not easy, support bloggers to protect their rights."

the goose and fish lamp is an ancient lamp. the reporter found that in addition to the two museums mentioned above, the shanxi museum and the nanchang han dynasty haihunhou state ruins museum also each have two han dynasty goose and fish bronze lamps, but the details of the design are different.

lawyers say it is difficult to define whether plagiarism is true or not

zhao liangshan, senior partner of shaanxi hengda law firm and well-known public interest lawyer, believes that whether the cultural and creative works of the shaanxi history museum constitute plagiarism cannot be generalized.

painted goose and fish lanterns in the shaanxi history museum (source: shaanxi history museum)

according to article 2 of the regulations for the implementation of the copyright law, works as referred to in the copyright law refer to "intellectual achievements in the fields of literature, art and science that are original and can be reproduced in some tangible form". therefore, originality is the core condition for a work to obtain copyright protection. for example, if a cultural and creative product is only a simple copy of the prototype and does not incorporate the creator's unique creativity or other differential expressions, in this context, as netizens have said, cultural and creative works do not have originality and do not fall within the scope of copyright protection, and there is no infringement problem. on the contrary, if the creator incorporates unique creativity and expression into the cultural and creative work, and has new design elements and combinations that can reflect the creator's own understanding and creativity, and the visual effect can be clearly distinguished from the prototype of the cultural relic, then the work can be deemed to have a certain degree of originality. if there is similarity or imitation, it is suspected of plagiarism and infringement.

specifically for this incident, lawyer zhao liangshan believes that the creativity of the cultural and creative works of the cultural and creative company is not prominent enough, and there is a certain difficulty in determining the originality of the works, so it is difficult to fully determine that the shaanxi history museum is suspected of plagiarism.

how can cultural and creative products prevent infringement risks?

in recent years, the idea of ​​"bringing cultural relics to life" has been deeply rooted in people's hearts, and museum cultural creation has blossomed everywhere, among which many popular products have been born. however, at the same time, infringement issues have also occurred frequently. for example, the popular cultural creation product of the gansu provincial museum, the bronze galloping horse doll, was pirated in large quantities. after the popularity of the tang palace night banquet, the "tang palace miss" also suffered infringement. the forbidden city's "travel by imperial order/luggage tag card holder" and other cultural creation products were imitated and hyped, and the "hundred birds paying homage to the phoenix" carved lipstick in the summer palace had a copyright ownership dispute, etc., all of which have attracted public attention.

zhao hu, a partner at beijing zhongwen law firm, analyzed that there are two main reasons for the occurrence of infringement disputes over cultural and creative products: on the one hand, the intellectual property awareness of developers of cultural and creative products needs to be further improved. cultural and creative products are closely related to intellectual property rights. due to their own particularity, hidden dangers are easily left in the creation stage. cultural and creative products are generally further created on the basis of original collections, but whether the original collections themselves have copyrights, who owns them, whether the products developed by cultural and creative products have their own originality, and whether the copyright agreements between partners are clear, etc., will lead to legal disputes over cultural and creative products; on the other hand, some businesses need to strengthen their awareness of respecting and protecting intellectual property rights. after the hot-selling cultural and creative products were launched, the market response was good. in order to seek profits, some businesses directly imitated and counterfeited them without authorization to make profits, infringing the legitimate rights and interests of the rights holders of cultural and creative products.

"in order to prevent infringement risks, the rights holders of cultural and creative products can consider adopting the following multiple intellectual property protection models." hu kaizhong, professor at the intellectual property research center of zhongnan university of economics and law, said that the first is the copyright protection model. some cultural and creative products are original in design in terms of patterns, designs, shapes, etc., and can be classified as works of applied art. the rights holder can consider registering the copyright. when others plagiarize the work, the rights holder can file a lawsuit to hold the other party responsible for copyright infringement. of course, copyright registration is not a necessary procedure. the rights holder can also sue the infringer as long as he can prove his identity as the rights holder. the advantages of this model are that the rights are easy to obtain, the protection is timely, and the protection period is long. the second is the design patent protection model. the advantages of this model are that the rights are relatively easy to obtain and the rights protection is strong. the third is the trademark protection model. the rights holder of cultural and creative products can use registered trademarks on the products to prevent consumers from being confused when purchasing. the last is the anti-unfair competition law protection model. some operators deliberately imitate the creativity and style of other people's cultural and creative products and produce products that are similar in appearance to other well-known cultural and creative products, which disrupts the market competition order and damages the legitimate rights and interests of legitimate operators and consumers. for this unfair competition that violates the principle of honesty and trustworthiness, the cultural and creative product rights holder can pursue the other party's infringement liability in accordance with the relevant provisions of the anti-unfair competition law.

with cultural and creative products frequently being infringed upon, and inferior imitations or pirated copies being commonplace, the economic daily commented that there is an urgent need to strengthen intellectual property protection for cultural and creative products.

since cultural and creative infringements are diverse, geographically widespread, and difficult to detect and trace, original creators often have difficulty protecting their rights due to high costs, long time, and difficulty in providing evidence. even if some rights holders win the case, the infringer will often choose to continue infringing because "the illegal profits are higher than the compensation amount."

in this regard, we should speed up the construction of a full-chain intellectual property protection mechanism to form a joint governance force. relevant departments should improve the "green channel" mechanism for complaints and reviews of cultural and creative intellectual property rights, so that creators can feedback infringement clues through special channels, and achieve rapid acceptance, rapid review, and rapid rights protection. at the same time, we should also conduct regular inspections on the protection of intellectual property rights of cultural and creative products, collect clues, focus on influential cultural and creative products, and promptly discover any infringement signs. in addition, strictly implement the punishment measures for verified cases to form a strong deterrent to infringement.

in the digital age, online platforms have become the main channel for infringement of cultural and creative products, and the monitoring and review of cultural and creative products should be strengthened. before products are put on the shelves, platform operators must conduct strict intellectual property rights verification and promptly block and remove infringing products.

creativity is rare, and creativity with cultural heritage and commercialization is even rarer. protecting intellectual property rights is protecting innovation. relevant departments should continue to work hard to crack down on cultural and creative infringements to protect the enthusiasm of creators and safeguard the legitimate rights and interests of consumers.

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