What to Consider Beyond Copyright in Digital Human Infringement Cases?
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What to Consider Beyond Copyright in Digital Human Infringement Cases?
Do virtual digital humans and their "zhong zhi ren" (voice/body performers) have copyright or neighboring rights?
Navigating Web3 tides with focused insightsBy Xiao Sa
As a product of the deep integration between current digital technologies and artistic creation, virtual digital humans reflect the development trends of new business models and formats in digital culture, becoming the new "traffic magnet" in online entertainment. According to the “2023 China AI Virtual Human Industry Research Report” released by iiMedia Research, China's core virtual human market grew by 94.2% year-on-year in 2022. With the increasing IP-ization of virtual digital humans, forms such as virtual idols and avatars are gradually becoming key business models in Web3.0 fields including broad-spectrum entertainment (represented by video livestreaming), e-commerce, and cultural tourism.
However, do virtual digital humans and their “zhong zhi ren” ("the person inside") enjoy copyright or neighboring rights? How can the rights of relevant parties related to virtual digital humans be protected under the current copyright law framework? These questions remain uncertain. The Hangzhou Internet Court has adjudicated the first case of "infringement involving a virtual digital human," analyzing these issues from multiple levels including right holders, subject matter, and ownership. Today’s article by Team Sa delves into this landmark judgment to clarify copyright-related issues surrounding virtual digital humans, aiming to help our readers understand the attribution of rights and legal nature involved.
01 Basic Case Background
Plaintiff A Company comprehensively applied multiple artificial intelligence technologies to create Ada, an ultra-realistic virtual digital human, and published two videos featuring Ada on a video platform. One video introduced the application scenarios of the virtual digital human Ada; the other recorded footage capturing the movements of real-life performer Xu and the virtual digital human Ada through motion capture. Defendant B Network Company later posted two allegedly infringing videos via its account. The central portion of these videos used content from A Company’s published videos, replaced identifying marks in the opening and closing segments, and added marketing information about virtual digital human courses throughout the entire video.
A Company thus claimed that B Company infringed upon its information network dissemination rights regarding artistic works and audiovisual works, as well as the information network dissemination rights of the videorecording producer and performers featured in the videorecordings.
02 Judgment Outcome
The Hangzhou Internet Court ruled that the character design of the virtual digital human constitutes an artistic work, while the disputed videos respectively qualify as audiovisual works and videorecordings. The plaintiff holds the relevant copyrights and neighboring rights. The court therefore ordered the defendant to eliminate the negative impact and pay 120,000 yuan in compensation for economic losses.
03 Case Analysis
What is a virtual digital human? According to the “Legal Research Report on Virtual Digital Humans,” a virtual digital human is a digitally existing virtual image presented via technical devices, combining multiple technologies with human-like appearance, gestures, voice, and other characteristics. Based on different driving technologies, they can be divided into真人-driven types—operated via motion-capture suits or specific cameras—and AI-driven types powered by deep learning algorithms. Ada in this case belongs to the former category. Nevertheless, regardless of the driving mechanism, within the current copyright law framework, virtual digital humans cannot currently attain subject status.
(1) Denial of Copyright Subject Status for Virtual Digital Humans — Grounded in "Human-Centric Authorship"
As reasoned by the court, virtual digital humans are not natural persons. They embody the intervention and choices made by developers and designers, and thus cannot possess author status. In today’s era dominated by narrow AI, the intellectual creative space afforded by artificial intelligence remains limited. Even if AI-generated content possesses originality and qualifies as a specific type of work, the rights do not belong to the virtual digital human itself.
"Human-centric authorship" is the philosophical foundation and fundamental principle underlying copyright legislation. Under this logic, works are essentially expressions of the author's will, with natural person authors inherently linked to their creations—this linkage enables the incentive function of copyright law. In other words, law, as a vehicle for rights, must derive solely from human subjective intent: “no rights without obligations, no obligations without rights.” Legal subjects must therefore be entities capable of holding rights, bearing duties, and assuming responsibilities—namely natural persons (or juridical persons or unincorporated organizations legally treated as “persons”). Since virtual digital humans lack independent free will and corresponding social attributes, they clearly cannot serve as subjects under copyright law under the prevailing "human-centric authorship" legislative philosophy, nor can they be granted legal personhood through legal fiction.
Technology cannot and should not equate to human creative thinking. We must return to the fundamental question of the real role played by humans behind virtual digital humans, placing people at the center. This approach helps mitigate potential disruptions and discomfort arising from adjustments to the copyright legal framework in the digital age and ensures protection of intellectual property behind virtual digital humans. A Company invested significant effort and financial resources in modeling, intelligent synthesis, motion capture, and other technical means to “create” this visualized, personalized, and interactive figure, which rightfully deserves copyright protection.
(2) Copyright Recognition of Virtual Digital Human Image and Related Videos
According to Article 4 of the Regulations for the Implementation of the Copyright Law, artistic works refer to artistic creations in two- or three-dimensional form with aesthetic significance, such as paintings, calligraphy, and sculptures, composed of lines, colors, or other methods. To constitute an artistic work, two conditions must be met: “originality + aesthetic significance.” The virtual digital human in this case is not a mere avatar corresponding to a specific natural person in reality but rather an image created by the plaintiff company using static 3D modeling, rendering, and live-performance driving techniques—not simply copying or replicating others or existing works. Furthermore, while drawing inspiration from human physical forms, the design incorporates textual elements, color schemes, graphics, costumes, and more to express the creator’s unique aesthetic vision and choices, thereby naturally qualifying as an artistic work.
Regarding the two disputed videos, the court correctly determined them to be an audiovisual work and a videorecording, respectively. How to distinguish the two? According to the WIPO Treaty on the International Registration of Audiovisual Works, audiovisual works are any works consisting of a series of related fixed images, with or without accompanying sound, capable of being seen, and when accompanied by sound, capable of being heard. In China, this includes films, television dramas, and other audiovisual works. Both audiovisual works and videorecordings may undergo editing, subtitles, special effects, or other post-processing. However, the key difference lies in original expression: audiovisual works demonstrate unique personal expression through stylistic choices, scene construction, etc., whereas videorecordings merely record real-world events onto a medium to produce continuous moving images. Although minor alterations or creative inputs might exist, they fall short of meeting the threshold of “personalized expression.”
(3) Neighboring Rights Protection for the "Zhong Zhi Ren" ("The Person Inside")
The "zhong zhi ren" is the core of真人-driven virtual digital humans—the true performer beneath the virtual facade. The performance delivered by the virtual digital human is in fact a digital projection and technological reproduction of the真人performance. Taking the virtual digital human in this case as an example, the voice, expressions, and movements expressed by Ada are highly faithful reproductions of the performances by the "zhong zhi ren" Xu, rather than simulations generated after deep learning mimicking human behavior. Therefore, the "zhong zhi ren" qualifies as a performer under copyright law and enjoys performer’s rights.
Article 40 of China's Copyright Law stipulates:
Performances carried out by actors to fulfill tasks assigned by their performance units shall be deemed employment performances. Actors have the right to be identified as performers and the right to protect their performance image against distortion. Other rights shall be determined by agreement between the parties. Where there is no agreement or the agreement is unclear, the rights in employment performances belong to the performance unit.
Due to the high costs associated with motion capture, 3D modeling, and similar technologies, the "zhong zhi ren" of a virtual digital human, as a performer, typically relies on the material and technical conditions provided by a legal entity or unincorporated organization—this reflects a certain degree of “technological dependency”—and thus constitutes an employment performance. Unless otherwise agreed, performers retain only the moral rights to be credited and to prevent distortion of their performance image, while all proprietary rights belong to the employing unit. Moreover, given the virtual nature of the digital human, the "zhong zhi ren" usually cannot publicly disclose their identity, and all performance activities must be presented externally under the pre-defined name and persona of the virtual digital human. As actual performers, "zhong zhi ren" generally receive only labor remuneration as stipulated in their contracts, while all copyright-related rights are held and exercised by the company.
04 Final Thoughts
Copyright systems—or indeed the entire intellectual property regime—serve as endorsements of industry development. Artificial intelligence technology is increasingly becoming a new engine driving China’s high-quality economic growth. Law must not脱离experience and become imprisoned by pure logic. The “first virtual digital human infringement case” actively explores and responds to the needs of industrial advancement. Team Sa reminds all companies operating in the virtual digital human sector to remain vigilant about legal and ethical risks associated with technology. Proactive planning, cautious yet open regulation, and balanced oversight are essential to safeguard technological innovation and market prosperity.
That concludes today’s sharing. Thank you, dear readers!
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