Can a 'Stickman' be original?

Simon Teng
date: Wednesday, February 09, 2005

On December 29, 2004, the Beijing No. 1 Intermediate People’s Court ordered Nike to pay 28-year-old Zhu Zhiqiang (better known as Xiao Xiao¹), the cartoon creator of an animated stickman character 300,000 Yuan (US$36,000) for copyright infringement. In addition, Nike was required to post a public apology on Sina.com. The claim arose from a 2003 Nike television advertisement featuring a stickman which was similar to Xiao Xiao’s online animated character.²

The artist, Xiao Xiao is a well-known flash maker not only in China but also throughout the web. His works have a distinctive style and are created through a medium called flash animation.³

In response to the court’s decision, Zhang Zaiping, a Nike representative, argued that since the stickman was already in the public domain and it lacked originality, copyright protection should not be afforded to Xiao Xiao’s stickman. It was further noted that Nike had spent $25 million Yuan (US$3 million) and hired Wieden and Kennedy, an advertising company to develop their stickman ad.

The Significance of Xiao Xiao v. Nike

Two things are remarkable about this case. Firstly, it is one of the very few cases in where a mainland artist was able to successfully enforce his intellectual property rights against a foreign multinational company. It is all too common to read in the newspaper instances of intellectual property right infringement by Chinese individuals against Western companies.

Secondly, although it may be too early to tell, this case may not only set a precedent for encouraging mainland artists to enforce their rights but also foreshadow a growing trend in which the Chinese courts will not feel reluctant to find intellectual property right violations by foreign multinational corporations.

The Road Ahead

This article will address Nike’s argument that Xiao Xiao’s stickman cannot satisfy the originality requirement, thereby disqualifying it from copyright protection.

Other legal arguments certainly worth discussing were raised by Nike in the Beijing Court, but unfortunately they will not be discussed in this article due to space limitations. For example some issues worth pondering about is whether Nike’s stickman is substantially similar to Xiao Xiao’s stickman and whether based on the facts, Nike’s claim that they independently created the ad through a third party would be a viable defense.

Who invented the "stickman?"

Most of us in some time in our education, all remember doodling in our notebooks. Some of our rough sketches in the margins of our notes were probably stickmen. All of us are probably thinking to ourselves, “Maybe Nike and Xiao Xiao copied my ‘stickman.’ I invented the stickman in my first grade math class. I have proof!”

Or some of us may be thinking of the cave paintings in Southern France during the Upper Palaeolithic period (40,000 to 10,000 BC) in which there were abstract drawings of humans. By now, surely the “stickman” that was drawn by the first caveman has entered the public domain.

Those of us who are lawyers and law students may question whether a “stickman” can even be copyrightable. In other words, can someone’s expression of a stickman be copyrightable under PRC copyright law? My answer to this question is, “it all depends.”

Back to Basics - Originality Requirement under PRC Law

Like in most countries, the copyright legal regime in China attempts to find the elusive balance between promoting the free flow of ideas in society and protecting the rights of the creator.

If the law is tilted too heavily in the direction of protecting the rights of the creator, society is deprived of the diffusion of knowledge and in some circumstances copyright holders may have the ability to control ideas. Reversely, if public policy favors society at the expense of artists, there may be no incentive for artists to innovate and create new works for the enjoyment and benefit of the community. In summary, all countries must make a public policy decision on how far they are willing to extend copyright protection.

In China, Article 2 of the Regulations for the Implementation of the Copyright Law (hereinafter “Implementation Rules”) expresses their policy decision. “Works” are defined as “intellectual creations with originality in the literary, artistic or scientific domain, insofar as they are capable of being reproduced in a tangible form.” (emphasis added).

For Xiao Xiao’s stickman to get copyright protection under Chinese law, his stickman would first have to jump over the legal hurdle of Article 2’s originality requirement. Leaping over this hurdle may not be as difficult as it seems. Last December, the Beijing No. 1 Intermediate Court held that test forms developed by ETS and GMAC could satisfy the “originality” requirement.

Let us begin this discussion with a hypothetical.

The Circle Hypothetical - Recognizing Degrees of Originality

At the outset, we should rid ourselves of the idea that a work is either original or not. A more accurate conception would be a spectrum. To put it simply, the originality of a work is a matter of degree. Some works are more original than others.

Keeping the above premise in mind, let us take an example of something more abstract than a stickman, like a drawing of a circle.

Now suppose during my criminal procedure class I draw a plain circle in my casebook by using a pencil. Would my circle satisfy the originality requirement? Probably not. The reason is because my drawing of the circle cannot be separated from the idea of a circle. As previously discussed, the very purpose of copyright law is to protect the expression of ideas and not the ideas themselves. My drawing of the circle has essentially merged with the idea of what is a circle. Granting exclusive protection to my circle drawing would to the detriment of society allow me to control the use and expression of the idea of a circle. Just imagine instead of a circle, an individual would be able to gain copyright protection for a mathematical formula.

A few minutes later, I grab from my schoolbag a box of crayons. I then increase the width of the circle so that I am able to color the borders. I decide to color the border of the circle blue. Does my circle satisfy the originality requirement? Maybe. At the very least, my circle has moved further down the spectrum from unoriginal to original.

While the Professor is explaining the holding of Katz v. U.S., I begin to draw yellow stars in the borders of my circle. Does my circle now satisfy the originality requirement? Yes. As I make more additions to the circle, my circle drawing moves further and further away from the abstract idea of a circle and towards something more original. My circle drawing is no longer inseparable from the idea of a circle. It is now a blue circle with yellow stars.

With regard to the originality requirement of Xiao Xiao’s stickman, we need to determine whether the expression of his stickman is separable from the idea of a stickman.

This is no ordinary “stickman”

So, is there really a difference between the stickmen we drew as kids during our first grade math class and Xiao Xiao’s animated stick figure? I believe there is a difference.

Although there is an inherent limit to how much protection that can be offered to Xiao Xiao’s stickman due to the fact that the idea of a stickman can be expressed in only one or a few ways, his expression of the stickman through flash animation does meet the legal threshold of originality set forth in Article 2. The reason is because Xiao Xiao has added both original and unoriginal elements to his stickman characters. These elements collectively have made his stickman characters distinct.

Unlike the stickmen we drew as children, Xiao Xiao’s stickmen are animated. They move like humans. Another departure from what is recognized as an “ordinary” stickman, Xiao Xiao’s characters have the ability to perform kungfu in a style that falls between Crouching Tiger Hidden Dragon and the Matrix.

A third noticeably difference is the body structure of Xiao Xiao’s stickman. Besides the head being very large and round, the various segments of the body are significantly thick. The segments of the body are cylinder shape and resemble logs of wood. The simple interconnected lines that are seen in a “typical” stickman are not used by Xiao Xiao. Finally, his stickmen can move three dimensionally from both a 2-D and 3-D perspective.

It would be a pity if Nike appealed and Beijing’s High Court failed to recognize these significant subtle differences between Xiao Xiao’s expression of a stickman through flash animation and the idea of a stickman.

Footnotes:

1. His works can be seen online at http://www.xiaoxiaomovie.com/index02.htm

2. The Nike Stickman ad available at http://www.kontraband.com/show/show.asp?ID=565&NEXTID=0&PREVID=401&DISPLAYORDER=20030310000025&CAT=tvads

3. “A bandwidth friendly and browser independent vector-graphic animation technology.”