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Text / You Yunting
Recently, Audi’s advertisement released by Xiaoman solar term has become a hot topic of public opinion due to plagiarism[i]. Unfortunately, the infringing advertisement in this incident was shot by my favorite star Andy Lau. What I want to discuss with you today is: If “Peking University Mange” sues, Will Andy Lau also bear the tort liability?
Introduce the case first: May 21 is the traditional Chinese solar term Xiaoman. Audi released the advertisement “Little Man Today, Xiao Man in Life” on Douyin, Weibo and other platforms. After the video was released, it quickly became popular all over the Internet, but the Douyin blogger “Peking University Mange” released a video claiming that Audi’s advertisement plagiarized his copy and published the evidence. Audi then publicly apologized and deleted the advertisement from the entire network, and Liu Dehua also deleted it. I posted an advertisement video on my Douyin account.
1. Who may be responsible for the infringement?
This short video shot by Andy Lau is a commercial advertisement released by Audi in order to promote its brand and products. Now the short video is infringing. According to the “Advertising Law”, the subjects who may bear legal responsibility are as follows:
1. Audi. As an advertiser and an advertising publisher, Audi is the first responsible for infringing advertising. Therefore, in Audi’s apology statement [ii], we express our sincere apologies for the inconvenience caused to Mr. Andy Lau, “Peking University Mange” and related parties due to ineffective supervision and lax review. What they should bear is the full legal responsibility for plagiarism, which is far more than simple supervision and review.
2. M&C Saatchi on the thinking advertisement. As the production company of the infringing advertisements, Audi said that it provided the advertisement plan and implemented it. M&C Saatchi is an advertisement operator in law, and should bear joint and several tort liability to “Peking University Mange” for the infringement. In addition, they should also be liable for breach of contract to the entrusting party Audi for providing infringing advertising copy.
3. Andy Lau. If the case is brought into litigation and all three parties are prosecuted, there is no doubt that Audi and M&C Saatchi will bear the tort liability, while Andy Lau may not necessarily bear legal responsibility if he has performed the duty of prudent review in advance. Let’s discuss in detail about Andy Lau’s legal status and what needs to be done in this incident.
2. Conditions for the spokesperson to be exempted from liability in advertising intellectual property infringement cases
1. What is Andy Lau an advertising spokesperson?
The purpose of this short video shot by Audi is to promote its own brand and products, and Andy Lau, who is a star, is the star of the short video. In the advertisement, he recommended and proved Audi in his own name and image, although Andy Lau is not a professional. However, consumers’ trust in him as a star makes him still constitute a spokesperson under the provisions of my country’s “Advertising Law”.
On this issue, the laws of China and the United States are the same. The US Federal Trade Commission’s “Guidelines on the Use of Endorsements and Recommendations in Advertising”[iii] has a case: a TV commercial for a home fitness system is hosted by a well-known entertainer, even if she is reading a script, this sentence is an endorsement, because consumption The reader is likely to think that it reflects the artist’s point of view. This is consistent with the nature of Andy Lau’s Audi Xiaoman advertisement.
2. What should Andy Lau do as a spokesperson?
1. Experience the product beforehand.
The practice of compliance is to first experience, deeply understand, and then speak. For example, to endorse Audi cars, Andy Lau should drive Audi cars in person. It is also necessary to avoid symbolic use. You can’t drive for three minutes even if you have experienced it, or use the experience of relatives and friends instead of your actual experience. The key point here is to save the evidence related to the experience process, so that if there is a problem with the product endorsed in the future, you can use evidence to prove that you have experienced the product.
2. Investigate endorsed products and companies
In this case, Andy Lau’s team should conduct necessary background investigations on Audi and keep relevant investigation records, including: whether the subject is legal, whether there are judicial proceedings, administrative penalties and other relevant negative information, whether Audi meets quality standards and regulatory requirements, etc. .
3. Review ad copy
The scope of the review includes whether the content of sample manuscripts, samples, and scripts is illegal, and whether the copywriting infringes the intellectual property rights of others. The Audi advertisement in this case plagiarized a poem by Zeng Guofan, which was adapted from the famous saying of “Peking University Mange”. If this poem can be found by entering the text in a search engine, it can be regarded as a failure to fully examine the responsibility of the advertisement copy.
The author personally judges that this poem may have been published in the video, and the text cannot be found by the search engine. But even if it can’t be found, the pre-examination of the advertisers and advertising operators in this case is flawed. The plagiarized video of “Peking University Mange” is also a popular work with more than 100,000 likes. Video, it may not happen that plagiarized works are published.
4. Perform timely remedial obligations after discovering problems
Spokespersons should follow up and pay attention to the companies they endorse and the products or services they endorse. If the endorsement companies have serious illegal and dishonest behaviors, or there are serious quality and safety problems in the endorsed products or services, they should verify and evaluate them in a timely manner. and other remedial measures. We saw that Andy Lau deleted the infringing video on his personal Douyin account in time after discovering the plagiarism problem, which is the fulfillment of the remedial obligation.
Finally, according to the provisions of the Civil Code, Copyright Law and Advertising Law, unless the plagiarized copy in the case is created by the spokesperson, or if the infringement is discovered, the infringing content is refused to be deleted from the account in most cases. Advocates are not liable for intellectual property infringement in advertisements. However, if the spokesperson does not do a good job in the compliance procedures before the endorsement, it is easy to endorse the brand that overturned. Intellectual property infringement can sometimes be exempted, but if there is brand fraud or product quality issues are sued by consumers, it is not so easy to exempt.
The author of this article: You Yunting, senior partner of Shanghai Dabang Law Firm, intellectual property lawyer. This article represents the views of the author only.
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