Every artist stands on the shoulders of those who came before them. Van Gogh’s famous swirling skies were inspired by Japanese paintings- their unusual spatial effects, the expanses of strong colour, the everyday subjects, and the attention to detail from nature. Walt Disney’s characters drew from classic European style and fairy tales. Creativity thrives on inspiration, where the past gets entrenched into the present. In an era of strict intellectual property protection, the question that arises is when does borrowing elements from another work cross into plagiarism?
This question has never received definitive answers. It is debated in studios, courtrooms, and now, on social media. When does referencing someone’s work become outright plagiarism?
The controversy surrounding Guose Fanghua (also known as Flourished Peony), a Chinese historical drama, has sparked debate over artistic boundaries. Set in the grandeur of the Tang dynasty, the series brings the era to life through intricate sets and lavish costumes. The story follows He Weifang, played by Yang Zi, the daughter of a merchant who defies tradition by escaping an arranged marriage. Determined to carve out her destiny, she builds a thriving flower business alongside Jiang Chang Yang, played by Li Xian, a high-ranking official in Chang’an. As they empower women and reshape the industry, their bond deepens into a secret love, set against the backdrop of political intrigue and shifting allegiances.
While the show was intended as a tribute to Tang-era culture, it quickly became embroiled in controversy. It has been accused of copying designs from Chinese Makeup Bundle (Tang Dynasty), a book by Zuo Qiumo, without permission.
In this blog, we will delve into how this show teeters on the edge of inspiration and imitation. We will unpack the legal issues, the role of historical references in modern creation, the protection of design ideas, and the growing use of social media in exposing alleged copycats around the globe.
Zuo Qiumo vs. Guose Fanghua: Creative Homage or Copycat?
The two key stakeholders in this dispute are Zuo Qiumo and the show, Guose Fanghua.
Zuo Qiumo is the author of the book ‘Chinese Makeup Bundle (Tang Dynasty)’- a book that explores the fashion and makeup styles of Tang Dynasty women. Rather than considering this as a history book, it can be construed as an amalgamation of careful reconstruction of ancient styles based on archaeology, historical texts, and artistic interpretation. The illustrations, created by Mo Chun, are interpretations according to historical texts about what Tang-era clothing, accessories, and hairstyles might have looked like. The Tang Dynasty aesthetic is characterized by vibrant, elaborate clothing, intricate hairstyles, bold makeup, and cultural fusion, reflecting a period of flourishing art, fashion, and architectural grandeur. They’re speculative designs, not direct reproductions of artefacts, making them unique creative works. Guose Fanghua plagiarism
The show’s elaborate styling soon sparked controversy. Photos from the show soon surfaced online, and the audience was quick to notice that certain costume and makeup designs looked eerily similar to the illustrations in Zuo Qiumo’s book. One of the clearest examples was actress Zhang Ya Qin’s character—her Huadian (floral forehead makeup) and hairpin closely matched those from Zuo’s book. A friend sent him the screenshots, and he immediately recognized the similarities. Taking to social media, he wrote, "It's not right to blatantly copy my work like this."
The debate quickly took off. Was this just historical accuracy, or had the show plagiarized Zuo’s work? Zuo clarified that while he was happy for people to study his work for personal use, a commercial production should have asked for permission before using it. He also suggested that the designs might have come from a third-party consultant who didn’t have the rights to sell them. If the designs were bought from a third-party consultant, the responsibility might shift depending on what was agreed upon with that consultant.
In response to the backlash, the production team publicly apologized, admitting they had used Zuo’s book as a reference but mistakenly treated some illustrations as direct historical evidence. They emphasized their respect for history and thanked Zuo for his research. Zuo accepted their apology and acknowledged their willingness to address the issue. He also warned that the entertainment industry should be more careful when using someone else’s creative work in the future.
THE LEGAL QUESTION
The central legal issue that arises in this controversy is whether the unauthorized use of artistic designs from Zuo Qiumo's book by the creators of Flourished Peony amounts to copyright infringement. This hinges on two main questions:
Do Zuo's illustrations qualify as an original work as defined under Chinese copyright law?
When does inspiration end and plagiarism begin?
ARE ZUO’S INTERPRETATIONS REALLY ORIGINAL WORKS PROTECTED UNDER COPYRIGHT LAW?
Chinese copyright law does not protect historical facts as they are available in the public domain. On the other hand, it does protect original artistic expressions.
According to Article 3 of the Copyright Law of the People’s Republic of China (hereinafter referred to as the Copyright Law of the PRC), artistic works—including illustrations—are protected if they exhibit originality. The term ‘originality’ is not defined in the law. What makes up the understanding of the term is done through judicial interpretations and academic debates. The 2002 Regulations for the Implementation of the Copyright Law introduced the concept of originality as a work that has been independently created and possesses a minimal degree of creativity. This standard is relatively low compared to the laws of other nations as this means that as long as the work is not a ditto copy and reflects intellectual achievement, it can be considered original. This standard aligns with international norms, such as the "author’s own intellectual creation" test applied in the EU and China’s "intellectual labor and aesthetic expression" approach.
Zuo Qiumo's illustrations in Chinese Makeup Bundle are artistic interpretations based on historical research. Despite being inspired by historical sources, they are a reflection of Zuo’s intellect and are not fully copied from history but based on his understanding and interpretations, thereby meeting the originality requirement under Chinese copyright law.
While case laws that are specific to historical fashion illustrations are rare, there have been significant developments in Chinese jurisprudence about the courts’ approach to originality. On November 27, 2023, the Beijing Internet Court (BIC) in Li v. Liu clarified various aspects of the concept of originality. The court affirmed that AI-generated images can be granted copyright protection, recognizing that originality arises from the creator’s intellectual input and subjective aesthetic choices, despite containing influences from historical or pre-existing materials.
If we were to apply this reasoning to the present controversy between Zuo and the creators of Guose Fanghua, the issue that comes up is whether his illustrations were just reproductions of historical facts and descriptions or if they involve sufficient creative expression and original judgment in interpretation. If Zuo's work has components of subjective artistic choices- ranging from missing details, selection of colours, or styling historical elements- it will be protected under Article 3 of the Copyright Law of the People's Republic of China, incorporating it under ‘works of fine arts.’ On the other hand, if his illustrations are considered depictions of historical facts without any subjective interpretation or independent artistic expression, they will not be considered original under Chinese copyright law.
Regarding the scope of copyright protection, China also follows the internationally accepted rule of “idea-expression dichotomy”. This essential principle, which courts invoke heavily while
establishing what is protected in copyright infringement cases, means that copyright only protects the author’s particular expression of an idea and never the idea itself. This means that ideas (eg.- Tang Dynasty women wore floral makeup) are not copyrightable but expressions (Zuo's artistic reconstruction of the makeup of the period) are copyrightable. As such, it is common ground that ideas are not protectable. Additionally, according to Article 2 of China’s Regulations for the Implementation of Copyright Law, “novelty” and “replicability” are required to establish copyrightable “expression”. This means that general historical motifs cannot be monopolized as per copyright law.
Guose Fanghua Plagiarism Controversy: Where’s the Line?
"Imitation is the sincerest form of flattery,"
By Oscar Wilde
Modern copyright law certainly doesn't share his enthusiasm. Under the Copyright Law of PRC, artistic works, including illustrations, receive protection if they meet the originality requirement. Article 10 grants copyright holders the right to reproduce, distribute, and adapt their works, preventing unauthorized commercial use. However, historical references complicate the matter—where does cultural homage end and infringement begin? Guose Fanghua plagiarism
This scenario is particularly complex as it involves historical facts and descriptions- something that cannot be copyrighted. So, this may also fall under fair use or fair dealing principles. The case is dependent on the fact whether the visual references used are common historical motifs or direct references to Zuo’s original designs. The courts would have to consider grounds such as the purpose of use, the nature of the work, the amount copied, and the effect on the market.
If this case were to go to court, the tests that could be applied to ascertain plagiarism would likely include these two key assessments:
Substantial Similarity Test- This test assesses whether the allegedly infringing work closely resembles the original in its key artistic elements. The concept originated in the U.S., where courts apply an extrinsic/intrinsic test (e.g., Sid & Marty Krofft Television Productions v. McDonald’s, 1977). The Extrinsic Test compares objective artistic elements while the intrinsic test evaluates the overall impression left on an ordinary observer. Chinese courts often use the extrinsic test in copyright cases, relying on judicial discretion to determine if the similarities are substantial enough to constitute plagiarism.
Access Test- This test evaluates whether the alleged infringer had access to the original work. If a work is widely available, access is presumed. For instance, in Three Boys Music Corp v. Bolton (2000), access was inferred because the plaintiff’s work had been publicly disseminated. In this case, Zuo’s book was publicly available, making it likely that the show’s designers had access to it.
If the show’s stylists simply took general historical ideas, it may not qualify as plagiarism. However, if they directly replicated Zuo’s unique interpretations, it could be considered unauthorized reproduction, violating Article 10 of the Copyright Law. In cases of copyright infringement, penalties may include both civil and administrative actions. The infringing party may be required to pay compensation to the rights holder for economic losses, including statutory damages if actual damages are difficult to calculate. Fines can be imposed, and in serious cases, criminal penalties may apply. The court could also order the cessation of the infringing activity, including withdrawal of the content or product from circulation.
SOCIAL MEDIA: THE NEW AGE COURTROOM FOR CREATORS?
One can argue that people have begun to treat their social media space as a redressal system, whether for better or worse. In recent years it has been observed that creators have started favouring platforms like Instagram, Twitter, and TikTok to call out instances of plagiarism and content theft.
Zuo Qiumo’s case is a prime example of this shift. Instead of pursuing legal action, he turned to social media to voice his concerns. His post criticizing Guose Fanghua went viral, sparking widespread debate. This public scrutiny forced the production team to issue a formal apology, acknowledging their mistake.
The instantaneous lure of social media as a redressal tool lies in its immediacy and reach. Instead of a lengthy lawsuit, where well-funded corporations were often favoured over individual artists, designers, artists, and content creators can now expose alleged copycats with a single post and instantly receive support from their huge band of followers. These tend to go viral, leading to criticism and pressure on brands and individuals, which ultimately leads them to issue apologies or withdraw products to safeguard their goodwill.
This shift is a necessary evil. While empowering creators, many raise concerns about trials by public opinion void of evidence and law. False accusations, lack of due process, online harassment, and negativity turn it into a double-edged sword. Yet, in an industry where smaller creators are often silenced and taken advantage of, social media emerges as a powerful tool for holding individuals accountable.
The lesson here is that while social media gives creators the power to speak up and hold others accountable, it also reminds us of the importance of fairness and evidence.
Commenti