Huang Nenghua, et al. v. China Record Shanghai Co., Ltd.

 

The first audio clip of the complaining work is from a recording (1962) of the plaintiffs’ version of one of the disputed works in this case, the Chinese Opera Mother as Slave. The second audio/video clip associated with the plaintiffs is of a more recent production of the same opera, which nicely illustrates the amalgamated authorship of Chinese opera, here offered with a gloss of Hollywood videography and Western musical style. The clips of the defending work are excerpts of Yang Feifei’s recorded performances of popular numbers from traditional Chinese operas, which plaintiffs alleged infringed upon Xu Ruhui’s arrangements of these works.

 

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.

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Original Mandarin Shanghai Intermediate People’s Court Judgment: PDF