[Case Study] Male Model vs. Benz, Benz Won the First Instance

Recently, Beijing Chaoyang District People's Court made the first instance decision on the case of male model Gao Jian suing Mercedes - Benz (China) sales Ltd. (hereinafter referred to Benz) for infringement of performers rights. The court found that Benz's action didn't constituted an infringement and dismissed the claims of Gao Jian.

Gao Jian alleged that in June 2011, he did the car commercial audition shooting for his contracted company. By the end of 2012, he found that Benz was using the audition shooting in its official website. Gao Jian believed that such acts of Benz infringed his performers rights, so he sued Benz to the court requesting 320,000 yuan as the compensation of his economic loss and reasonable expenses.

Benz argued that it had obtained Gao Jian's authorization and paid the remuneration, so it requested the court to dismiss the plaintiff claims.
The court found that in 2010, Benz and BBDO Advertising Co., Ltd. (hereinafter referred to as BBDO) reached an agreement and Benz commissioned BBDO to produce promotional films. The agreement expressly agreed that all the work products based on the agreement belonged to Benz, except for the existing rights of the third parties. Afterwards, BBDO subcontracted the work to Shanghai Qian Ding Advertising Company Limited (hereinafter referred to as Qian Ding).

Eventually, Qian Ding and Jin Tong Zi Ye (Beijing) Culture Communication Co., Ltd. (hereinafter referred to as Jin Tong Zi Ye) signed a model contract and hired Gao Jian as a model. After the shooting, Qian Ding paid 60,000 yuan to Jin Tong Zi Ye for Gao Jian's labor and portrait rights.

The court believed that as a product produced in the similar way as film making, the copyright belonged to the producer. According to the agreement between Benz and BBDO, Benz can be identified as the producer. As the performer Gao Jian only had the right to be paid under the contract but had no right to advocate rights of performers. Moreover, Gao Jian agreed to act in the commercial and Qian Ding who was responsible for shooting had paid Gao Jian and the two didn't have any other agreement based on his rights of performers. Therefore, the court didn't support his requests.

Gao Jian didn't agree with the first trial decision and claimed to appeal. CIP News will follow the development of this case.