Unless you have been hiding in a grotto in the last four years or just arrived from planet Mars a few days ago, you could not escape the embrace of Disney’s Frozen swirling snowstorm which makes you want to go on an adventure with Anna, Kristoff and Olaf to save Elsa, the Snow Queen. When the construction of Elsa’s Ice Palace takes place, one cannot help but sing along with her: “Let it go! Let it go! Can’t hold it back anymore!!!” This song is so contagious that it gets stuck in your head for a long, long time. The Germans call this phenomenon an “Ohrwurm”, or “Ear Worm.” However, this song may have gotten stuck in the ears of certain people for a very different reason.
The 2022 Winter Olympic Games will take place in Beijing. This global sports event will be another great opportunity for China, after the 2008 Summer Olympics, to show the world its power and prosperity. However, one of the official songs specially recorded for the event, “冰雪舞动 (The Dance of Ice and Snow),” has risen controversial copyright issues both in China and internationally. The reason? Striking similarities between the tunes of the two songs. Like the Disney Song, the Chinese Olympic song begins with gentle piano arpeggios. The tempos, keys, melodic progressions and instrumentations of the two songs are almost identical. The similarities were quickly picked up by foreign and Chinese media. Many Chinese bloggers and Weibo users also consider the matter a loss of face (丢面子) for their country.
How should an owner of the copyright to a song react if it were ever put into Disney’s shoes?
Copyright laws provide a host of default rights to songwriters, including the sole right to produce, make copies of, perform, publish and synchronize a song. Whereas a mere idea is not protected by copyright laws, an identifiable embodiment of this idea is. For example, if you compose a song, but never record it or write down the score, the song does not enjoy copyright protections. However, it would be an infringement if someone copies or uses some parts or your entire song without your consent. As shown in Bridgeport Music, Inc. v. Dimension Films, even use of only three notes from a guitar riff could be deemed an infringement.
Although the owner of the copyright is in the United States in this case, United States courts generally do not have jurisdiction over an extraterritorial infringer. The right holder needs to pursue the infringer in China. A network of treaties and conventions address the issue of international copyright protection, the most important of which being the Berne Convention for the Protection of Literacy and Artistic Works (the “Berne Convention”). Signed by both the United States and China, the Berne Convention provides two helpful concepts: minimum standards (all nations must provide minimum standards to non-domestic claimants) and national treatment (non-domestic authors enjoy the same protection for their works as in their own countries). As a result, a United States copyright owner is automatically entitled to protection against a Chinese infringer of its works. However, the infringed work first has to be protected in its original country in a “tangible medium of expression.” In other words, the work has to be reduced to a concrete form, such as when it is written on a piece of paper, recorded on an audiotape or videotape, or stored on a computer disk or hard drive. In our case, the Disney Song is indeed protected in the United States by the national copyright law.
Chinese law is applicable in this case as long as it guarantees minimum standards and national treatment. Depending on the objectives of the litigation and the circumstances of infringement, a copyright holder may choose to file an administrative complaint, a civil lawsuit, or a criminal law suit. In civil and criminal cases, jurisdiction is held by the court where the defendant resides or where the infringement activity occurs (that includes the location of manufacturing, transportation, storage, distribution, selling of the infringement product).
Why has Disney not sued to protect its copyright? In a high-profile case like this one, the considerations involved go beyond only the legal one. As demonstrated in the cases of Google and Facebook, Western corporate giants can either prosper or be completely banned in the world’s biggest market depending on how the Chinese government views them. To call out the Chinese Olympic Committee on an international stage is to slap the government in the face. With the newly opened Disneyland in Shanghai and the billions of dollars’ worth of content and merchandise sales in China, publicly humiliating the Chinese government is the last thing Disney wants to do. It will be interesting to see how Disney will manage the delicate balance between protecting its IP rights and appeasing the Chinese government.
 Google is completely banned in China. While Facebook’s website is banned in China, it was able to win a trademark case in the Chinese courts. Thanks perhaps to Mark Zuckerberg’s photo ops on the Great Wall and visits to Chinese university campuses?