Than Dong Dat Viet
Contact email: vinh@bross.vn
Medium of expression of 4 characters from episodes 1-78 that Plaintiff asked the court to deny joint authorship
Medium of expression of 4 characters from episode 79 onwards and the new series Than Dong Dat Viet Khoa Hoc accused of infringing on the Plaintiff’s moral right
Trang Ti
Coverpage Than Dong Dat Viet episode 5 (Source: http://thandong-datviet.blogspot.com/2016/09/than-dong-dat-viet-tap-5-dau-tay-xoa-no.html)
Coverpage Than Dong Dat Viet Khoa Hoc (Source: https://tiki.vn/than-dong-dat-viet-khoa-hoc-dac-biet-tap-2-tiem-hoa-ngay-tet-p439115.html)
Suu Eo
Coverpage Than Dong Dat Viet
episode 23
(Source: http://thandong-datviet.blogspot.com/2016/09/than-dong-dat-viet-tap-23-trai-tim-suu-eo.html)
Dan Beo
episode 73
(Source: http://www.nettruyen.com/truyen-tranh/than-dong-dat-viet/chap-73/101646)
Ca Meo
Coverpage Than Dong Dat Viet Khoa Hoc
(Source: https://tiki.vn/than-dong-dat-viet-khoa-hoc-dac-biet-tap-2-tiem-hoa-ngay-tet-p439115.html)
Two Core Legal Issues and the Reason Why the Economic Rights Lost out to Moral Rights?
The more-than-decade intellectual property rights dispute between the copyright owner and author related to the famous comic series "Than Dong Dat Viet" finally ended with the first instance judgment no. 35/2019/DS-ST dated February 18, 2019 of the People's Court of District 1, Ho Chi Minh City and the appellate judgment no. 774/2019/DSPT of September 3, 2019 by the People's Court of Ho Chi Minh City in favor of the Plaintiff (an artist author).
This case has only two key legal issues. Firstly, whether the Defendant has the entitlement to co-authorship for the mediums of expression of 4 characters Trang Ti, Suu Eo, Dan Beo and Ca Meo if she is the first person having the idea and shaping in her mind about those 4 characters, personally directing and assigning tasks to the Plaintiff? Secondly, as the copyright owner, does the Defendant have the right to use variations of the forms of expression of 4characters to continuously compose volume 79 onwards and other sets of manga comics?
According to the court record, the Plaintiff cooperated with Defendant, Phan Thi Informatics Technology Services and Trading Company Limited (“Phan Thi Company”) represented by Ms. Phan Thi My Hanh, under a labor contract since 2001 as an illustrator. The Plaintiff created about 30 characters and out of which only 4 characters Trang Ti, Suu Eo, Dan Beo and Ca Meo were chosen to produce a comic book titled Than Dong Dat Viet. Due to a conflict, the Plaintiff had terminated the employment contract with the Defendant after he completed episode 78.
The Plaintiff brought a civil action against the individual Defendant (Ms. Hanh) and entity Defendant (Phan Thi Company) asking the court to recognize him as the sole author for episodes from 1-78, petitioning the court to reject Ms. Hanh's request to acknowledge her as the co-author, and requesting the court to forbid Phan Thi Company to form and use variations of 4 characters available in subsequent series Than Dong Dat Viet after volume 78 and in other newly produced manga comics by the reason that such continued formation and use have infringed upon his moral right to the integrity of the work under Section 19(4) of the IP Law.
On the contrary, regarding the moral rights, the Defendant assumed that she must have been credited as a joint author because she was the first person having the idea of 4 characters that were clearly shaped in her mind and the Plaintiff was only hired to materialize those ideas to the outside world. With respect to the economic rights, the Defendant asserted that she is duly the copyright owner for 4characters, so her use of 4 characters to continuously develop volume 79 onwards and other publications namely Than Dong Dat Viet Khoa Hoc and Than Dong Dat Viet My Thuat shall obviously belong to her right to make derivative works pursuant to Section 20(1)(a) of the IP Law, meaning that the Defendant did not violate the Plaintiff’s moral right to integrity.
Both first instance court and appellate court dismissed the Defendant’s request for recognition of her as the joint authorship because the written agreement to name the Defendant as a co-author when registered with the Copyright Office was null and void. The first instance court found that the Defendant is the owner of moral right to "publish or permit others to publish the work" and all economic rights including the right to "make derivative works" while the Plaintiff is the owner of moral rights including the right to "protect the integrity of the work, forbid other persons to modify, mutilate or distort the work in whatever form, causing detriment to the author’s honor and reputation". Thereby, the court of first instance held that Defendant's change of the original expression of 4 characters to match the plot, context and content of each comic volume from volume 79 onwards as well as the comic series Than Dong Dat Viet Khoa Hoc and Than Dong Dat Viet My Thuat were the activity of making derivative works with modifying the original form of expression without a consent by the Plaintiff. Agreeing with the view of the court of first instance, the court of appeal concluded that the Defendant is entitled to make derivative works but must not modify, mutilate the mediums of expression of 4 characters or distort these works in whatever form, causing harm to the author’s honor and reputation.
Likely Explosion of Moral Right Lawsuits by Authors to Preclude Copyright Owners from Transforming or Disposing of Their Acquired Works?
The first consequence from Than Dong Dat Viet lawsuit is that any written agreement to name as a sole author or joint authorship signed between the commissioning parties, employers or copyright transferees and the other party being the commissioned parties (eg. artists, creators) pursuant to independent contractor contract (commissioning agreement), labor contract, copyright assignment contract shall be declared invalid by the court in case of dispute because Vietnamese IP law provides for the moral right of paternity (giving attribution or credit) and moral right of integrity of the work are inalienable and non-transferable regardless of whether the author no longer holds any economic rights.
However, the bigger concern is that potential investors, employers, assignees may face risks of being sued for infringing upon the author’s exclusive right of integrity of his/her work, especially when the authors abuse their moral rights to take legal action on account of making derivative works with amending the mediums of expressions of their original work.
Bross & Partners, a Vietnam intellectual property law firm ranked Tier 1 in 2021 by Legal 500 Asia Pacific, has experience and capacity to resolve intellectual property rights complex disputes regarding trademark, copyright, patent, plant variety and domain name in Vietnam and abroad.
Should you need any assistance, please contact: vinh@bross.vn; mobile: 0903 287 057; Zalo: +84903287057; Skype: vinh.bross;Wechat: Vinhbross2603.
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