Peacock Gallery Records and Xie Jun, copyright contract dispute January 12, 2010
Shunde Peacock Gallery Entertainment Records Ltd and Xie Jun, copyright contract dispute - Beijing Second Intermediate People's Court ( 2008-6-20) Shunde District, Foshan City, Peacock Gallery Entertainment Records Ltd and Xie Jun, copyright contract dispute
Beijing Second Intermediate People's Court Civil Judgement
(2008) 2 final word in the first 9105 people
No.
appellant (plaintiff trial, the trial counterclaim defendant) Shunde District, Foshan City, Peacock Gallery Entertainment Records Ltd., domicile, Shunde, Foshan, Guangdong Province Daliang Road, Fung Cheung Fung Industrial Region 6.
legal representative Chenren Tai, chairman of the board.
agent Kongde Feng, Beijing law firm right up.
agent Liaoxiang Ling, Beijing law firm right up.
appellee (defendant trial, the trial counterclaim plaintiff) Xie Jun, male, Han nationality, August 10, 1970 born, singer, live (a little).
agent Wyss member of Beijing Abou Law Firm.
agent research Zhuo Zhou, female, Han nationality, January 11, 1977 birth, a trainee solicitor, Beijing, Serge Abou, law firm, to live (a little).
appellant Shunde Peacock Gallery Entertainment Records Ltd (hereinafter referred to as Peacock Gallery Company) by Xie Jun, copyright contract dispute with the appellee's case, refused to accept Beijing Chaoyang District People's Court in March 2008 20 to the (2008) North Korea Republic of China Civil Judgement No. 2422 words, to appeal to our hospital. Hospital on May 12, 2008 accepted, the collegial panel to conduct the trial according to law. The end of the case has been heard.
trial alleged that the appellant company Peacock Gallery: January 3, 2005, the company and Xie Jun in the issue of their album, \Contract Peacock Gallery Company issued a one-time license fee paid 120,000 yuan Xie Jun, and pledged to invest no less than 30 million on publicity, Xie Jun, Peacock Gallery obligation to participate in the company held free of commercial performances, and three years as release their second album, Xie Jun, the first with the companies. June 6, 2007, Peacock Gallery bought the company from the market by Beijing Huayi Brothers Music Co., Ltd. (hereinafter referred to as Brothers & Company) issued by Xie Jun \Peacock Gallery Company believes that Xie Jun breach of agreement between the parties, will release its second album, the right to authorize others to their cause significant economic losses. Therefore, the court ruled Xie Jun prosecution request compensation for their economic losses 300,000 yuan, and bear all legal costs.
appellee trial defense and counterclaim, said Xie Jun: September 26, 2005, signed with the Peacock Gallery an \According to the \So far, Xie Jun had fulfilled January 3, 2005 both sides agreed in the contract obligations. Therefore the company does not exist Peacock Gallery breach complained of. Peacock Gallery in the contract process, but there are violations: First, do not put 300,000 yuan in accordance with the contract of publicity; 2, has not held a commercial contract performances and press conferences; 3, without Xie Jun permit issued, \\4, at the first joint issue of \Co., Ltd., in violation of the contract shall not transfer the rights of others agreed, but also violated Xie Jun of commercial interests. In the box there are the Shunde District of Foshan City, Run-Sheng Technology Co., Ltd. of advertising pages and the ring tone advertising alone, violated Xie Jun's public image. Peacock Gallery's breach fundamental breach of contract system, leading purpose of the contract can not be realized. Therefore Xie Jun of the Peacock Gallery Inc. filed a counterclaim, requesting the court decision to lift the two sides on January 3, 2005 signed a \Peacock Gallery
appellant the respondent companies said the trial of the counterclaim: the company has fulfilled its contractual obligation to promote, publicize invested a lot of costs, and the contract of 300 thousand yuan publicity to fulfill the entire contract Expenditure for the period are not yet fully performed the contract, promotional spending is continuing. In addition, public obligations of the contract non-performance is not lifting conditions. Contract to participate in a news conference on the Xie Jun and commercial performance of the agreement is Xie Jun, an obligation, not the company's obligations Peacock Gallery, Peacock Gallery company organizing these activities have contacted Xie Jun, but did not participate. Unauthorized distribution is not on MTV, Xie Jun, images, and this is the album as a CD promoting the use of Xie Jun, is a contract basis. \In summary, the Peacock Gallery companies do not breach the contract the two sides do not agree to lift.
trial court has examined: January 3, 2005, Foshan Shunde Peacock Gallery Audio Appliance Co., Ltd. (hereinafter referred to as Peacock Gallery AV company, in June 7,home karaoke machine, 2007 changed the name Peacock Gallery Company, as Party A) and Xie Jun (as B) signed a contract, authorized by the Party Party Party published solo concert album \the publication, and the commitment of the album production process, packaging, promotion and distribution of all costs; agreement, Party A Party B to the album's master tapes of the concert, received items, Party B issued a one-time payment authorization costs 120 thousand yuan in cash; Party has the concert album of exclusive audio and video products for permanent exclusive distribution rights to promote the Party and also has a concert album and the use of any form of audio and video publishing products, songs within the album right to use; A parties pledged to the concert album for promotion of not less than 300,000 yuan; actively cooperate with Party B for the album, the publicity activities (press conferences, record signing will be) and free to participate in Party activities organized by the three business performance market, Party A shall contract in the first year in organizing these activities; B Party authorized to release the album Party B, Party A shall not transfer the rights of other parties; B committed within three years, such as release their second album, will be First of all, cooperation with the Party; both parties should jointly maintain Party B's public image and business interests.
the contract is signed, the Peacock Gallery AV company to meet its contractual payments to the Xie Jun 120,000 yuan.
2005, the Guangdong Audiovisual Publishing House of the size of the two packages are identical to Xie Jun, singing \A.J6. Album included the following track: \\slight edge procedures (accompaniment version). \The size of the album's song book on the box to promote the performing arts of Guangdong recorded a song Entertainment Records Ltd. Thailand. In a large poster on the box and the big box on the back of record of the Hong Kong Tiger Entertainment Records Ltd, Peacock Gallery AV company, Foshan City Shunde District, Run-Sheng Technology Co., Ltd. (CD-ROM replication, graphic printing), and in the large packing box with a description Shunde District, Foshan City, Run-Sheng Technology Co., Ltd. of color pages. Album of the packets in the back of record cartoning Peacock Gallery AV companies have produced, the Hong Kong Tiger Entertainment Limited produced record producer, and in the small packing box with a description ringtones download black and white pages. Mutual recognition of the album shall be under the January 3, 2005 contract signed by the CD album release.
2005 年 1 month, Peacock Gallery AV commissioned Shunde Run-Sheng Electronics Co., Ltd. Processing CD album, the Xie Jun, posters,kids karaoke, promotional CD-ROM, CD covers and song books and other propaganda.
2005 年 9 28, Peacock Gallery AV companies (as Party A) and the singing star of Beijing World Cultural Arts Development Co., Ltd. (hereinafter referred to sing the company, as Party B) signed the \will sing their own singing and starring in the MTV Xie Jun, Kara OK album audio-video products distribution rights licensed to Party A, Party A shall pay the issuance fee for this 120 thousand yuan. Peacock Gallery Company approved the \
2005, the Guangdong Audio and Video Press published Xie Jun \/ v.J6, CN-F18-05-760-00/v.J6. The two discs are marked with color sealed Peacock Gallery AV company produced a collection of tracks are: \slight edge procedures, \Mutual recognition, the two CD-ROM is based on the above-mentioned \Kara OK in the song are included in \
2006, China published the audio and video products musicians encoded CN-A50-06-412-00/A.J6 of Xie Jun, singing \The album contained color sealed with \The album included the track, in addition to \
proceedings, Xie Jun statement \not opposed. Xie Jun is the one singing the company's shareholders, and as the company's legal representative. Meanwhile, Xie Jun, mentioned that he had on the album's release and the Peacock Gallery companies worked together to discuss, but not on this evidence, the company which is not recognized Peacock Gallery.
Xie Jun in the trial submitted to the court titled \
J6, album contained sealed color video company produced Peacock Gallery. The album contains two songs sung by Xie Jun, \In addition, Xie Jun in the trial court also submitted to the two concerts were Xie Jun Xie Jun, but not the image \F18-05-761-00/v.J6 and CN-F18-05-760-00/v.J6, the album included two tracks are included in \
the above facts, the \Primeval Mankind \Statement of the Parties and other documented evidence.
trial court found that: the two sides \The true meaning of the two sides agreed that both parties are legally binding. Under the agreement, since January 3, 2005 from three years, if Xie Jun issued its second album, should first select the company to negotiate with the Peacock Gallery release their second album's co-operation, and should not be not with the Peacock Gallery company to discuss the upcoming distribution rights granted to others, or that is in violation of the contract.
Although Xie Jun statement \Xie Jun was also marked with color sealing the copyright statement Moreover, Xie Jun, also served as the company's legal representative in the singing, therefore, the trial court found that Xie Jun consent issued by the Huayi Brothers Company, \Xie Jun
is that under the September 28, 2005 the \So it has fulfilled the two sides \Therefore, the original play version of MTV Primeval Mankind Kara OK album's second album is Xie Jun Xie Jun is a breach of contract found the key. In this regard, the trial court found that, what a singer's second album, the law does not provide this, the two sides have not specified the contract agreement, so should be determined according to the general perception. Is generally believed that a singer's second album, the vast majority of content should be focused on the singer had never been in an album in the concert repertoire, these pieces should not be previously published in the album track of repeat or the contents of the second album should have never sung the title track, not previously sung the title track of the repeat, or even though the song lyrics before the concert has been or published in an album, but re- were recording a new audio version of the form, thus forming with these songs before recording a different album. If only the carrier changes, the album version number of different, due to a technical processing and various other sound effects caused by the formation of another album, the album can not be considered to be a singer's second album. \The track has not been re-recorded, but only through the technical processing has sought to add a musical accompaniment of the sound file. Therefore, \be supported.
the contrary, Xie Jun, of \should be considered Xie Jun's second album. However, Xie Jun is not evidence that the issuance of the \Xie Jun of the act in clear violation of the contract between the two sides.
Peacock Gallery for Xie Jun, the company claims are not put into promotional costs by 30 million, the trial court held that: First, the Peacock Gallery has for the promotion of \corresponding costs; Second, the contract did not expressly limit the cost of inputs, and the contract does not provide for validity, therefore, the contract is still under the period of performance, the cost of contractual investment promotion should be put into the performance of the contract period, Even if the Peacock Gallery inputs publicity the company has not so far reached 30 million, it does not breach the contract. Therefore, Xie Jun, the company claims the Peacock Gallery breach not support the trial court.
Peacock advocated for Xie Jun, the company did not hold a commercial gallery shows and press conferences of the breach, the trial court held that the contract with the Peacock Gallery of Xie Jun, the company actively organizing promotional activities, and free to participate in the company Peacock Gallery commercial performances of the agreement is Xie Jun, should fulfill a contractual obligation, not Peacock Gallery company must fulfill the obligations, such as the Peacock Gallery Company is not a publicity campaign and commercial performance, Xie Jun at best not to participate in such activities, but not that the company violated the contract Peacock Gallery. Therefore, the trial court does not support Xie Jun, the breach of contract claims.
advocated for Xie Jun in \page to a violation of its public image of non-compliance, the trial court found that there are other companies did not specify signature Peacock Gallery will release the assignment to these companies, Xie Jun, also failed to demonstrate there are the ad page to a violation of its public image to constitute a breach of contract, therefore, Peacock Gallery in the point does not constitute a breach of contract.
unauthorized advocated for Xie Jun in the \published in 2003, earlier than the time of the contract signed by both parties, therefore, the CD's release and whether the breach of contract the company has nothing to do Peacock Gallery.
Peacock Gallery advocate for Xie Jun, released \The company has \CD album, so the Peacock Gallery's behavior is the behavior of the exercise of their rights, does not violate the contract the two sides, Xie Jun of the economic rights are not violated.
summary, Peacock Gallery does not exist in the company alleged breach of contract counterclaim Xie Jun, Xie Jun in order that the breach caused Peacock Gallery fundamental purpose of the contract the company and request termination of the contract claim can not be achieved without basis, the trial court not support it.
both parties \Xie Jun in three years if the release their second album, is not directly based on the \Therefore, whether the company must be able to Peacock Gallery Xie Jun, the second album release is uncertain, that Xie Jun in breach of the agreement even if not the company is bound to cause economic loss Peacock Gallery. In addition, the present case, the Peacock Gallery company did not provide evidence of their actual economic losses suffered. Therefore, the company asked Xie Jun for the Peacock Gallery compensation 30 million claim, the trial court not support it.
In summary, the trial court with the \, Xie Jun's counterclaim dismissed the request.
appellant company refuses to accept the trial verdict Peacock Gallery, put to the Court of Appeal, requesting the repeal of the first trial decision, revision Xie Jun compensation Peacock Gallery Inc. 300 thousand yuan of economic losses and take a second trial costs. The main grounds of appeal are: Peacock Gallery and Xie Jun, signed by the Company pursuant to \Accordingly, the company denied the Peacock Gallery is about right according to the normal priority given to achieve the benefits to be gained album is inconsistent with the normal causal reasoning logic. Priority will be given about the trial court included the right of the expected loss is equivalent to actual loss of interest, asked the company to meet the actual losses Peacock Gallery burden of proof is wrong. Breach of contract trial court found Xie Jun Xie Jun, the premise is not liable for default judgments do not meet the legal logic.
appellee Xie Jun subject to trial verdict, dismissed the appellant's appeal request to maintain the first-instance ruling. But Xie Jun favor of the agreement published in \
Court has examined: the period in the second trial, the parties did not submit new evidence, the Court of the trial court found the facts to be confirmed.
Court that: the appellant's predecessor Peacock Peacock Gallery Gallery AV company on Jan. 3, 2005 Xie Jun and appellee entered into \signed to sing the \
in the second trial period, the focus of the parties dispute as \album, Xie Jun and sing the company, Huayi Brothers co-production and distribution company, \
accordance with relevant industry practice, the original album track with the same or similar, only rearrange the order of songs on the music or sound effects to deal with changes in technology accompanied version of the album, even with a new version number or a different carrier forms, should be considered a re-interpretation of the original album, should not be recognized as a new album. \and the same track are from the same source, not been re-recorded. Therefore, \Xie Jun advocated the album in which their second album, based on inadequate, the Court not to adopt.
identified according to the present case the facts, audio and video published by the Chinese musicians, singing the company in production, Huayi Brothers Company issued the \in addition to \
According to Xie Jun and Peacock Gallery signed a \The second album first company to cooperate with the Peacock Gallery negotiation. Although Xie Jun proposed partnership with the Huayi Brothers ago on \Therefore, Xie Jun fails to \. Xie Jun claim involved conduct did not constitute a breach of its lack of basis, the Court not to adopt.
terms of the above, if Xie Jun in the release their second album in three years should be the first partnership with the Peacock Gallery, but did not expressly agreed \Xie Jun in terms of direct access to release their second album in three years the issue of rights, but only made the priority negotiation rights, their ability to get the rights to distribute the album depends on the success of the negotiations, and negotiation. Therefore, the terms of the contract the nature of the agreement is only intent, not directly lead to the production of specific rights and obligations, not necessarily to cause economic losses the company Peacock Gallery.
during the trial in this case, Peacock Gallery has not provided sufficient evidence to prove the existence of economic loss. Therefore, on the basis Peacock Gallery Company to obtain the relevant terms of the contract is about the right of priority setting, the expected loss of profits should be supported and Xie Jun, should be liable for breach of contract claim of appeal, the lack of sufficient factual and legal basis, the Court does not be supported.
trial court under ascertain the facts, finds Peacock Gallery in \fever of Sound \Peacock Gallery Company issued \Hospital to confirm this.
In summary, the appellant's grounds of appeal Peacock Gallery can not be established, the appeal request, the Court will not support. The trial verdict, the facts clearly, correctly applies the law should be maintained. Court in accordance with the \
first instance the admissibility of the complaint charges 5,800 yuan, 2,900 yuan charged by half, from Foshan City Shunde District, the burden of Peacock Gallery Entertainment Records Ltd. 1,000 yuan (already paid), pay 1900 yuan from the Xie Jun (at the sentence paid within 7 days after the entry into force); counter-claims processing fee 750 yuan, 375 yuan charged by half by Xie Jun burden (already paid); second-instance court costs 5,800 yuan, from the Peacock Gallery, Shunde District, Foshan City Entertainment Records Ltd burden (that has been paid ).
This decision is final.
presiding judge Xiao-chun Zhang Jian
Acting Deputy Judge Song Guang
2 ΟΟ eight years on June 20
clerk Sun Chunwei
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statement: The referee instruments from the \
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