Beijing won its bid to host the 2022 Winter Olympics last week, but since then, “The Snow and Ice Dance,” one of the 9 official songs Bejing used for its campaign, has been questioned for plagiarism. Some Internet users and media believed that the song is substantially similar to “Let It Go” in Disney’s animated film “Frozen.”

According to some music fans, the two songs share the same tune, length, tempo and instrument arrangement especially in their preclude sections. Others have the general feeling that the two songs are quite similar to each other at the beginning, but not in the end.

So could this be an intentional plagiarism by the Chinese songwriters? Given that the 9 official songs are subject to worldwide media exposure and China is infamous for weak protection of copyrights, it is reasonable to assume that the risk is too high to take if the Beijing 2022 Olympic Winter Games Bid Committee decides to use some intentionally plagiarized songs. Thus, it is likely that the Committee has taken precautions measures to prevent such incidents from happening. However, it remains unknown whether the songwriters have circumvented these measures to allow their intentionally plagiarized work to appear in the final 9 official songs.

Assuming that intentional plagiarism is not an issue here, could this be a “subconscious copying?” Under federal copyright law, assuming that the plaintiff owns a valid copyright in the material allegedly copied, one approach to establish a copyright infringement claim is through circumstantial evidence. Particularly, the plaintiff must show 1) that the plaintiff’s and the defendant’s works are “substantially similar;” and 2) that the defendant had “access” to the plaintiff’s work. If such elements are met and the defendant cannot show that the plaintiff’s claimed work is uncopyrightable or the defendant’s allegedly infringing work is derived from some works in the public domain or the defendant’s independent efforts, a court may find infringement even if it believes the defendant did not intentionally copy the plaintiff’s work, so called the subconscious copying doctrine. As Judge Hand articulated in Fred Fisher, Inc. v. Dillingham, “[o]nce it appears that another has in fact used the copyright as the source of his production, he has invaded the author’s rights.  It is no excuse that in so doing his memory has played him a trick.”

We cannot extrapolate what led the Chinese songwriters to create “The Snow and Ice Dance,” but there is one fact that cannot be ignored: Chinese artists are heavily influenced by their western peers and a similar western counterpart can always be found for every artistic element in the Chinese entertainment industry. It is fair to say that most Chinese artists lack the ability to produce brand-new creative works and they are still in the phase of learning and imitation. Consequently, “subconscious copying” may not be a libelous tag for some of their works.

This alleged plagiarism incident should be at least a warning to the Chinese entertainment industry. Although producing independent and creative works is a difficult step to take, it is also a necessary step to fulfill before it can stand in the front line of the global entertainment industry.

Peiyuan Guo

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