Huang Nenghua, et al. v. China Record Shanghai Co., Ltd., (2005) Hu No. 1 Intermediate Civil 5(IP) No. 317 (Shanghai Interm. People’s Court, Feb. 20, 2007).
Arrangements of traditional Chinese Operas, including The Mother as Slave
1960s recording of Yang Feifei performing popular numbers from traditional Chinese Operas, including The Mother as Slave
Comment by Charles Cronin
As discussed in the judgment (below) it is virtually impossible to parse the authorship of Chinese operas. Most closely identified with these works are well-known traditional melodies, long associated with specific locales, and which are not protectable. Performers use these melodies as a base for musical improvisation and inflection that best demonstrates their vocal and dramatic abilities. These improvisations are notated to serve as the vocal score associated with a particular performer. Instrumentalists accompany the singers, but tailor their accompaniments to the singers’ improvisatory styles. Yet another musician may be responsible for creating transitional passages between the sung numbers.
In other words, because the dependencies among the creators/performers of Chinese opera are so significant, one cannot readily tease apart authorship of musical expression (protectable or public domain) from a performance of it. Curiously, the same is increasingly true of Western popular music, in which songs are both authored and performed “by committee” (in which sound engineers are essential participants) and it is difficult not only to determine who authored what, but also whether the contribution of a particular author or performer is original expression or a non-protectable stylistic approach.
In the case at hand, the court determined that the plaintiffs may have had a copyright interest in their ancestor’s musical contribution to several of the operas represented on the defendant’s allegedly infringing recording. Several traditional folk melodies, which Yang Feifei elaborated upon in her performance, were the underlying music used for this recording. The various defending musicians who recast these melodies created an original arrangement of this public domain expression, without copying the protectable expression associated with the plaintiffs’ previous arrangement and elaboration of these melodies, and the larger operas containing them.
Lily Xue Dong (GEN Law Firm, Beijing) who provided us information about this interesting case suggests that this decision may reflect concern in China for maintaining the vitality and appreciation of traditional Chinese opera. By underscoring the public domain status of many fundamental elements of these works (melodies particularly) perhaps the court was encouraging exploitation of this rich, but increasingly under-appreciated, national heritage.
Rough English language translation of Shanghai Intermediate People’s Court Judgment: PDF
Original Mandarin Shanghai Intermediate People’s Court Judgment: PDF