COMPARATIVE ANALYSIS OF FAIR USE DOCTRINE FROM CHINESE AND AMERICAN PERSPECTIVES: LESSONS FROM JIMMY LIN’S PS CASE

Abstract

There are two legislative modes of fair use doctrine in the global scale: one is closed mode representative by China and the other is open mode representative by US. In Jimmy Lin’s case, the defendant was held for copyright infringement due to his replacement of one of the characters in the picture without the authorization of the original author. Whilst in a similar case, the Prince case, the defendant’s act was held justification for transformative use in US. The fundamental reason for the different legal provisions of the two countries lies in their different attitudes towards the personal rights of copyright, where Chinese copyright law takes moral rights more seriously, while US law focuses more on the property rights. In September 8, 2017, the Beijing Haidian Court made a judgement of the copyright dispute between plaintiff Zhu Qingfu and defendants Jimmy Lin & Beijing Micro Dream Chuang Ke Network Co. Ltd., where star Jimmy Lin was sentenced to a fine of more than 300000 RMB due to the poster of a picture with obvious PS traces in his Weibo. This case has triggered the debate on the differences between the fair use doctrine between China and US.