Infringer sentenced to six months in prison for plagiarizing famous Taiwanese comic artist’s works
The famous Taiwanese comic artist, XIAO Yan-Zhong (“Xiao”) confronted plagiarism by JIA Zhao (“Jia”), who declared himself to be a marketing expert to adapt the comic characters of Xiao’s well-known comics series, “The Moment”, rearrange these characters into a new copywriting titled “The Mouse”, upload them onto a Facebook fan page called “Angel TALK Paris” (Chinese: Angel TALK法國軟麵包專賣店), and further make them the main characters of a series of collection cards for sale. For the civil aspects of this case, the Taiwan IP Court already granted an award of damages in an amount of TWD3 million to Xiao, and the owner of the said Facebook fan page should pay TWD300,000 out of the awarded TWD3 million damages. In the criminal aspect of the same case, Taiwan Tainan District Court ruled in the first instance that Jia should receive 8-month prison sentence for violating the Taiwan Copyright Act. Jia filed an appeal against the judgment and then the Taiwan IP Court vacated the first-instance judgment and imposed a 6-month prison sentence on Jia, which may be commuted to a fine of TWD360,000 calculated at the rate of TWD2,000 per day. This case is appealable.
As the creator and copyright holder of the comics series, “The Moment”, Xiao had once held a solo exhibition of his series of works, “The Moment” in Beijing, China in August 2013. However, without Xiao’s prior consent and due authorization, Jia made simply slight changes to the comic characters of Xiao’s “The Moment” by imitating these characters by computer mouth and also adapted Xiao’s text creations to rearrange them into a series of advertising materials, “The Mouse”, and post them to the said Facebook fan page together with Jia’s picture to lead viewers to believe that those drawings and texts are created by Jia himself. Moreover, Jia’s plagiarism took another form of colorable napkins carrying these imitated comic characters to be distributed in a book store in Tainan, Taiwan for customers’ use, to be framed as picture for exhibition, and further printed as collection cards for sale at the price of TWD5,000 each. Jia’s foregoing acts have constituted grave infringement.
In the appeal, Jia stated that in his cooperation with Xiao in 2013, he was authorized by Xiao for marketing and he had also acquired Xiao’s consent to adapting his comic characters of “The Moment”, which was why he imitated and rearranged them into the series of “The Mouse”. Based on the foregoing reason, Jia argued that the “The Mouse” is not the reproduction of Xiao’s works but adaptation, and further requested for having the first-instance judgment vacated and sought a settlement with Xiao.
After comparing the “The Moment” and “The Mouse”, the judge of Taiwan IP Court found Jia’s arguments about adaptation untenable on the grounds that the characters based on cats, dogs, and horses in both “The Moment” and “The Mouse” are substantially similar in lines, direction, size, and percentage of the overall arrangement, and that Jia’s drawing would make viewers identify Jia’s drawing techniques with those of Xiao, and also that Jia had admitted his taking Xiao’s works as reference for “The Mouse”. However, in view of the facts that Jia has been trying to reach a settlement with Xiao and the infringement does not last for a long time, and Jia has removed “The Mouse”, and also that this is a personal property dispute, the judge considers it unnecessary for Jia to serve prison sentence and thus commuted the original sentence to six months in prison instead. (January 2019)