On September 19, the long-running copyright infringement and unfair competition case between renowned author Jin Yong and novelist Jiang Nan reached a final settlement after multiple mediations by the Guangdong High People’s Court. The case, referred to as the "first fanfiction case" in China, has spanned nine years, affecting the publishing industry and the literary community.
Background of the Case
The dispute began in 2015, when Jin Yong (Louis Cha), one of the most influential authors in modern Chinese literature, discovered that in Jiang Nan’s novel There They Were, featured characters with names directly taken from his iconic martial arts works, including The Legend of the Condor Heroes, Demi-Gods and Semi-Devils, The Smiling, Proud Wanderer, and The Return of the Condor Heroes. The character relationships, traits, and storylines also closely mirrored those from Jin Yong’s novels.
Jin Yong argued that Jiang Nan had plagiarized his classic characters, adapted his plots without permission, and altered the original characters without proper attribution, which infringed upon his adaptation, attribution, and integrity rights. In addition, Jin Yong contended that the accused novel had profited greatly from the unauthorized use of elements of his works, constituting unfair competition. He also accused the Beijing-based publishing house and its affiliated company of failing to fulfill their due diligence responsibilities, urging them to bear joint legal liability for damages and infringement cessation.
In July 2016, Jin Yong filed a lawsuit at the Tianhe District People’s Court in Guangzhou, demanding that the defendants cease all copyright infringement and unfair competition, destroy unsold copies of the book, issue a public apology, and pay RMB 5 million in damages and RMB 200,000 in legal costs. He also sought joint liability from the publishers involved.
First-instance Judgment
The first-instance court ruled that while the accused novel shared certain abstract formal similarities with Jin Yong’s works, such as character names, relationships, and basic traits, the overall experience for readers was not substantially similar, and therefore, did not constitute copyright infringement. However, the court recognized that Jiang Nan’s use of the subtitle The College Years of the Condor Heroes for the 2002 publication, which directly referenced Jin Yong’s works, clearly reflected an intention to capitalize on the influence of Jin Yong’s novels. As a result, Jiang Nan’s actions were deemed unfair and in violation of the Anti-Unfair Competition Law.
Consequently, the trial court ordered Jiang Nan and the accused publishers to pay Jin Yong RMB 1.68 million (30% of the RMB 5.6 million in royalties earned from the novel) and RMB 200,000 in attorney fees.
Second-instance Judgment
Following the judgment, Jin Yong, Jiang Nan, and the affiliated Beijing company appealed to the Guangzhou Intellectual Property Court.
Upon review, the Guangzhou Intellectual Property Court ruled that the accused conduct constituted both copyright infringement and unfair competition. The court ordered Jiang Nan to compensate RMB 1.68 million in damages and RMB 200,000 in legal costs, with the Beijing publisher and its affiliate jointly liable for RMB 330,000.
In its reasoning, the court noted that while certain elements of There They Were were similar to Jin Yong’s works, the core plot-driving events, scene designs, arrangements, internal logic, causal relationships, specific details, and the overall story outline differed significantly. Therefore, the court concluded that there was no substantial similarity. However, the court found that the ensemble of over 60 characters in There They Were reflected Jin Yong’s distinctive creative choices. The names, traits, relationships, and backgrounds of these characters were sufficiently detailed and interconnected to form a coherent structure, qualifying for protection under copyright law as "expressions." Consequently, the use of similar character names, traits, and relationships in There They Were was considered plagiarism, constituting an infringement on the copyright of Jin Yong's original works.
While the court acknowledged that the plot of There They Were diverged from Jin Yong’s four iconic novels—The Legend of the Condor Heroes, Demi-Gods and Semi-Devils, The Smiling, Proud Wanderer, and The Return of the Condor Heroes—it found that Jiang Nan’s accused work and Jin Yong’s novels belong to different literary genres with distinct readerships. Therefore, the court chose not to order cessation of the infringing activities. However, the court ruled that any future reprints of There They Were must include economic compensation to the rights holder. This compensation was set at 30% of the reprint royalties, based on the proportion of elements borrowed from Jin Yong's works.
Legal Concerns Arose
The second-instance court's judgment has sparked considerable debate within the legal and literary communities. While the court acknowledged the differences in plot, setting, and narrative structure between Jiang Nan’s work and Jin Yong’s novels, concluding that the two did not share substantial similarities in their storylines. However, the court still found that the characters and relationships in There They Were were copied, overturning the initial ruling and recognizing copyright infringement.
This decision has raised concerns among legal experts, particularly regarding the court’s treatment of literary characters and relationships. Some argue that if these elements are granted independent protection under copyright law, it could lead to an overreach that stifles derivative and fan works, which often build upon existing creative material. They contend that substantial similarity should be assessed by considering the work as a whole, rather than focusing solely on isolated elements like character traits or relationships.
In addition, the court’s decision to rule copyright infringement while allowing the continued publication of There They Were with a financial settlement (30% of the royalties) has sparked further debate. This ruling diverged from Jin Yong’s request to halt the publication and destroy remaining copies, and experts fear it may set a troubling precedent. Rather than stopping the infringement, this approach could encourage future infringers to continue exploiting original works, as long as they pay royalties to the original creators.
Experts have questioned the underlying logic of this decision, pointing out that it could inadvertently weaken respect for copyright law and encourage further violations. By allowing infringing works to continue circulating as long as they compensate the original creator, the ruling may inadvertently foster a “pay and continue” mentality that undermines the very essence of copyright protection.
Settlement Reached
Despite the second-instance ruling, the parties were unable to reach a resolution and filed for retrial at the Guangdong High Court.
While the industry are expecting the retrial results, news came on September 19 that the parties have reached a settlement.
Under the mediation of the Guangdong High Court, the parties reached a settlement agreement. Key terms included: the agreement that the accused actions would not be classified as "plagiarism"; Jiang Nan’s acknowledgment of his lack of copyright knowledge and failure to obtain prior permission for adaptations of Jin Yong’s works, which caused damage; Jiang Nan’s commitment not to republish There They Were in its original form, and if republished in the future, to refrain from using Jin Yong’s original character names or related content; and the recognition that the subtitle The College Years of the Condor Heroes used in the 2002 edition constituted unfair competition. Jiang Nan had already fulfilled the compensation obligations set in the second-instance judgment, and no further claims would be pursued. Once the settlement was signed, the first and second instance rulings became legally void.
