The Court upheld the first-instance judgment recognizing Le Linh as the only author of the

The plaintiff is painter Le Phong Linh  (pseudonym Le Linh) and the defendant is Phan Thi Co., Ltd of Technical Service and Informatics Development (Phan Thi  company) and  Ms.Phan Thi My Hanh.

Representing the plaintiff is lawyer Truong Thi Thu Hong from Pham & Associate law office.

Previously, at the first-instance trial taking place on January 24, 25, February 1, 14 and  18, 2019, the People's Court of District 1, Ho Chi Minh City declared the followings: (i) to recognize Le Linh as the only author of the drawing style of 4 characters  “Trạng Tí”, “Sửu Ẹo”, “Dần Béo” và “Cả Mẹo” (“Great Ti”, “Twisty Dan”, “Fatty Dan” and “Big Tricker”) in  the “Infant Prodigies of Viet Country” comic series from volume #1 to volume #78  under the Copyright Certificates no. 246, no.247, no.248 and no.249/2002/QTG issued by the Copyright Office of Vietnam (COV) on May 7, 2002 to the owner of the work, namely Phan Thi Communications Education and Informatics Development Co., Ltd. (now known as Phan Thi Entertainment and Education Communication Co., Ltd - Phan Thi Company for short), (ii) Phan Thi  Co.,Ltd must  terminate the self-creation and the use of variations of the drawing style of 4 characters “Trạng Tí”, “Sửu Ẹo”, “Dần Béo” và “Cả Mẹo” on subsequent volumes from #79 onward in the “Infant Prodigies of Viet Country” comics as well as in other series of the comics such as “Thần đồng đất Việt Mỹ Thuật” and “Thần Đồng đất Việt Khoa học” ("Infant Fine-Arts Progidies of Viet country" and "Infant Science Progidies  of Viet country"), (iii) Phan Thi  company must apologize to Mr. Le Linh in Thanh Nien and Tuoi Tre newspapers in three consecutive issues with the following content “Phan Thi Entertainment and Education Media Co., Ltd apologizes to Mr. Le Phong Linh (pseudonym Le Linh) for having infringed upon the copyright of Mr. Le Linh to the drwaing style of 4 characters of “Trạng Tí”, “Sửu Ẹo”, “Dần Béo” và “Cả Mẹo” and (iv) Phan Thi company must compensate Le Linh for cost of VND15 million for hiring a lawyer.

The defendants, Phan Thi company and  Mrs. Hanh appealed against the first-instance verdict; asking the Court to recognize Mrs. Hanh as a co-author of 4 character images “Trạng Tí”, “Sửu Ẹo”, “Dần Béo” và “Cả Mẹo” arguing that  Mrs. Hanh herself was the first one who has had  an idea about  these characters; as not being an artist she had to hire and advise painters, including  Le Linh, to help her in painting these characters. Further, Phan Thi  company and Mrs. Hanh disagreed with the plaintiff's request on forcing Phan Thi company to stop creating variations of 4 character images  “Trạng Tí”, “Sửu Ẹo”, “Dần Béo” và “Cả Mẹo” on subsequent volumes from #79 onward in the “Infant Prodigies of Viet Country” comics as well as in other series of this comics such as “Thần đồng đất Việt Mỹ Thuật” and “Thần Đồng đất Việt Khoa học” ("Infant Fine-Arts Prodigies of Viet country" and "Infant Science Prodigies  of Viet Country"). Arguing that as having possessed the property right to this comics, Phan Thi company has the right to use these character images to make derivative works. As not having infringed the copyright, Phan Thi company does not have to apologize nor pay the cost hiring a lawyer at the request of the Plaintiff.

The Panel Trial considered that the claimant's claim of lawsuit belongs to the moral rights of the copyright which includes the right to protect the integrity of the work; the plaintiff did not intend to make a profit from his request; therefore, the case is a civil dispute over IP rights and should be under the jurisdiction of District 1 Court.

In responding why the COV was not summoned to the court, the Trial Panel said the COV has issued a written opinion stating that in case relevant documents containing contrary evidence are founded the COV will annul the issued Copyright Certificates accordingly. Further, the court whether or not to recognize the validity of the issued Copyright Certificates does not relate to the COV’s rights and obligations. So the first-instance court did not summon the COV to participate in the trial is grounded.

Regarding the copyright issues of the lawsuit, the Trial Panel held that an author of a work must be one who directly creates a part or the whole of the work. Copyright arises from the time the work is created and expressed in a certain material form.  Both the plaintiff and defendant have submitted to court the drawings, saying these are sketches, but no evidence has been provided for to determine when they were drawn. However, the defendant has admitted that Mr. Le Linh was the one who directly drew these four characters and on the published publications Le Linh is shown as the illustrator.

The Trial Panel also asserted that if a person has a creative idea but that idea has not been expressed in a material form, then he/she  is ineligible for claiming to be the author of the idea. Personal imprints, advices and/or instructions in the process of creative labor must not be conditions for identifying the author of a work, so the defendant's argument  is unfounded. Therefore, the decision of the first-instance court recognizing Le Linh as the only author was grounded.

The Trial Panel also held that the plaintiff had worked for Phan Thi company under a labor contract; Phan Thi company had assigned  Le Linh to create the image of the characters. Because of this, Phan Thi company is the owner of the work and has the property rights to the work.

Phan Thi company is entitled to make derivative works but must not modify, mutilate the appearance or distort the characters in any way that harms the honor and prestige of Le Linh. In fact, Phan Thi company had used the Le Linh’s drawing style of the above characters to make subsequent volumes from #79 onward in the “Infant Prodigies of Viet Country” comics as well as in other series of this comics such as “Thần đồng đất Việt Mỹ Thuật” and “Thần Đồng đất Việt Khoa học” ("Infant Fine-Arts Progidies of Viet country" and "Infant Science Progidies  of Viet country"). In these series the images of 4 characters differ from the original images registered at the COV, but the makers of it failed to identify which part(s) of the work is a creation to be considered a derivative work rather than a reproduction of the original work. As a result, the Trial Panel has no basis to consider this is an activity of making the derivative work.

The action of Phan Thi company in putting the images of 4 characters deviated from their original expression in the comics neither having consent of author Le Linh nor making a note of using the drawing style of Le Linh in drawing the characters of the comics is a violation of the author's moral rights. Le Linh's request for apology and compensation of fee hiring attorney is grounded.

The appellate Trial Panel rejected the appeal and upheld the first-instance judgement.