Nintendoreleased the phenomenal game "Legend of Zelda: Tears of the Kingdom"on Switch on May 12 this year. Since its predecessor "Legend of Zelda:Breath of the Wild" was already a phenomenal masterpiece, the news aboutthis work, from the announcement of its production to the confirmation of itsrelease date, was all sensational and caught a lot of attention. The game'sastonishing popularity caused the game to be leaked and cracked around itslaunch date. After the launch, it naturally occupied various news sites,including the Facebook fan page of a gym run by the influencer "GuanZhang."The editor of the fan page made a publicity picture of a scene similar to thegame's style and was accused of plagiarism. Regarding netizens’ accusation ofplagiarism, GuanZhang did a live stream late at night to explain the incident.He stated that his art editor was only "paying tribute" to Tears ofthe Kingdom. The art editor did ask their legal department before posting thepicture and was told that it would not violate the law. However, he bowed andapologized for this "re-creation" in the live stream.

Thisarticle is not meant to discuss whether GuanZhang’s gym fan page has committedplagiarism. We would simply use this incident to look at netizens’ accusationof plagiarism and the alleged “paying tribute” or “re-creation” as claimed byGuanZhang. These concepts have become inevitable legal issues in today’sdigital marketing world and often plague many corporate marketing editors.Therefore, we would take the opportunity to illustrate these concepts byassuming two scenarios:

Scenario1: The art editor uses conceptual elements of a scene from Tears of the Kingdom(i.e., the character standing at the edge of an ancient ruin in the air) todraw a scene of his own. In this scenario, it is less likely to be accused ofplagiarism.

Worksare expressions of ideas and concepts of human beings' mental activities to theoutside world, and copyright protects only the expressions, not the ideas orconcepts. Because ideas and concepts are part of human mental activities, andthese mental activities are important foundations of social progress andpluralistic development. If they are monopolized by law, it will prevent thetransmission of ideas and the accumulation of knowledge. Hence, ideas orconcepts are not within the scope of protection of copyright. In the gameindustry, it is common to see many game players pointing out that some game's"gameplay" has been copied from another game. In fact,"gameplay" is only a concept or an idea in most cases, and usually,the same or similar gameplay does not constitute an infringement of othergames.

TakeScenario 1 as an example. If the scenes in the publicity ad are all drawn bythe art editor himself, meaning that they are his own expressions., Then, even thoughthe conceptual elements of the game are used in the scenes, this type of conceptualexploitation would have no plagiarism concerns since concepts are not protectedby copyright. However, it should be noted that the fact assumed in Scenario 1is the use of the conceptual elements of the scenes. If the art editor uses theimage of the game character "Link" in the publicity, it would still beat risk of infringement.

Accordingto the opinion of the Intellectual Property Office of the Ministry of EconomicAffairs of Taiwan, referencing the development of judicial precedents in theUnited States, a character that is highly developed and clearly depicted by theauthor is a character that is more fully developed and contains more expressiveelements and fewer ideological elements. This type of character is more likelyto be protected under copyright. In addition, some U.S. courts have held that astory character can be independently protected by copyright if it has becomethe story itself. Since the first game in the Legend of Zelda series was firstreleased in 1986, the main character "Link" has been used to developthe plot of each game in the series, and the company also released a storytimeline. Therefore, going back to Scenario 1, if the art editor uses the imageof "Link" in the publicity, even if the character is drawn by the arteditor himself, infringement concerns still cannot be ruled out.

Scenario2: The art editor useed the picture of a scene from the game withoutauthorization, added his own art to the scene, and edited the picture. Unlessthis type of exploitation meets the requirements for “fair use,” it would besuspected of infringing copyright.

Addingone's own creative expression to an original work is one of the acts of workadaptation. The "re-creation" claimed by GuanZhang can probably beunderstood as an adaptation of the work. Since the right of adaptation is oneof the rights protected by copyright, unauthorized adaptation is, in principle,an infringement of copyright. However, the accused party still has the chanceto claim "fair use" to avoid infringement. As to what constitutes"fair use," while Taiwan’s Copyright Act provides that "allcircumstances shall be taken into account" in determining what constitutes"fair use," the following indicators are worthy of special attention:1. the purposes and nature of the exploitation, including whether suchexploitation is of a commercial nature or is for nonprofit educational purposes;2. the nature of the work; 3. the amount and substantiality of the portion exploitedin relation to the work as a whole; and 4. effect of the exploitation on thework's current and potential market value.

Thephrase, "all circumstances shall be taken into account," means "onecan hardly affirm the conclusion," and the conclusion should rely heavilyon the judge's subjective opinion. Hence, although a fair use claim may be usedto deter infringement, it is still highly risky. In Scenario 2, although thecompany can still argue that the adaptation pertains to "fair use,"it may be safer to obtain the prior consent of the copyright owner than to beput in such a high-risk situation.

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Thisarticle was published in the Expert’s Commentary Column of the CommercialTimes. https://view.ctee.com.tw/tax/50102.html

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