Gumby Versus Haibao: Shanzhai Mindset at the Shanghai Expo

The big China news recently has been the Shanghai Expo, this year’s answer to the Olympics in China’s never-ending soft power global image push. So far, so good by all accounts.

Among the myriad issues that have arisen surrounding the Expo, which have ranged from the long queues to the expensive, bizarre “pavilions” built by fawning foreign countries, one has captured my attention for obvious reasons: IP infringement of some of the Expo’s signature creations (the Expo theme song and mascot).

The Expo theme song, “2010 Welcomes You,” seems to be a very obvious knockoff, so no need to go into detail on that matter. The Japanese have already graciously allowed the Expo organizers to use the material with no further hassle.

The funky blue “Haibao” mascot is another story entirely.

Ever since Haibao was unveiled, there was talk about its similarity to the American kids tv icon Gumby. The talk dragged on with no resolution (of course), with the Taiwanese designer Wu Yongjian getting quite pissed off in the process, until the issue flared up again at a recent press conference:

Shanghai World Expo Bureau held the press conference on April 23 to help testing Expo news center’s operations.  Unexpectedly an American female reporter from National Public Radio in Shanghai, Louisa Lim (Lin Mulian 林慕莲) shouted accusations that World Expo mascot Haibao was plagiarized from an American cartoon icon Gumby.  She also produced photos as evidence, the scene suddenly turned chaotic.

Reporters and TV stations all quickly snapped pictures of the female reporter, Expo board propaganda Minster Xu Wei who was sitting on the podium at the time became very awkward because of what was happening.  Lousia Lim did not spare Xu Wei, she brought out two pictures and also accused that the style of the Chinese exhibition center building was plagiarized from buildings in Japan. Then she picked up the tape recorder and microphone and rushed to the podium, asking Xu Wei for comments on the two plagiarism incidents.  At the same time both Chinese and foreign media swarmed in and surrounded the podium.

Heh. Rather dramatic turn of events for this sort of issue, but China IP is always a hot topic, right?

I understand that this is a cool story, and with all the chatter, I don’t blame the reporter for bringing up the issue at a press conference. The idea that the biggest international event in China since the Olympics is fundamentally flawed by IP infringement is tantalizing, a juicy issue that people have been talking about for months. This is the land of shanzhai, after all, it just fits together so well.

Except that it doesn’t, at least not with respect to Gumby. Again, the theme song is a knockoff, so that fits the narrative quite nicely. But the Haibao-Gumby questions are puzzling, and I’ve yet to see the press coverage of this issue include any opinions of IP experts.

For obvious shanzhai products, like the new iPad clones, the fakes are easy to spot;  expert testimony is not really necessary. For other types of fakes, like the forged court verdict recently discovered in Henan, only folks “in the know” can spot the difference.

I'm Gumby, Damn It!

This brings us back to Haibao and Gumby. The side-by-side pic is above. What do you think about when you see Haibao? Do you think of Gumby? Is it possible that Gumby “inspired” the creation of Haibao? (Personally, I thought of Eddie Murphy’s portrayal of Gumby as an old Jewish entertainer on Saturday Night Live, but that’s me.)

If the answers to one of those last two questions is “yes,” do we then have a case of infringement? The media’s description of this issue suggests that Haibao therefore has an IP infringement problem. I strongly disagree.

Whether Haibao reminds you of Gumby, or even if Haibao was somehow inspired by Gumby makes no difference in a copyright infringement case if the two works in question are not similar. In this case, you can judge for yourself by looking at the picture above.

This may seem moronic, but let’s take a quick detailed look at Haibao and Gumby from a design perspective. This is an idiotic exercise, but if it ever went to court, some poor schmuck of a lawyer would actually have to sit down and write all this stuff down in this manner.

1. Body – Gumby is much more anthropomorphic than Haibao. Gumby has a defined head, body, legs and arms; Haibao is pretty much all head, with arms and legs stuck on. Hard to see infringement from that.

2. Head shape – Gumby and Haibao both have rectangular heads with protuberances on one side. Gumby has a bumpy thing on the left side of his (its?) head that makes it look like he stuck his head outside the window of a high-speed train when he was a baby Gumby and his jell-o skull hadn’t completely solidified. In contrast, Haibao has a very clearly defined spit curl (a la Superman) on the right side. Again, although the overall shape of the head is the same, all we’re talking about is a basic rectangle – hard to see infringement there.

3. Facial features – Gumby has clearly defined eyes, nose, mouth and eyebrows, while Haibao only has eyes and a mouth. Moreover, Haibao’s eyes have centered pupils, while Gumby’s are usually in the lower right or left quadrant of his eyeballs. Gumby’s mouth is usually shown (maybe always) as open, like a semicircle, while Haibao’s mouth is a thin line. Again, with respect to facial features, absolutely no similiarity here.

4. Arms and hands – Gumby’s arms and hands are in rough proportion to each other, and his body; Haibao has thin stick arms with cartoonishly large puffy hands. The only similarity here is that both have hands that are mitten-like as opposed to having articulated fingers.

5. Legs – Gumby has long legs that are maybe 60% of the total length of his body. Haibao’s short stubby legs are maybe 40% of his (its?) total body length. Gumby’s legs are tapered up to his waist, with huge feet, while Haibao’s feet/legs are not tapered.

OK, you get the idea.

Excited to Go to the Shanghai Expo

To summarize my point: yes, it’s fun to point fingers at the Expo’s theme song as being plaigiarized (it is) and at Haibao as being stolen from Art Clokey, Gumby’s creator (and fellow alumnus of Pomona College – Go Sagehens!). It’s even more entertaining because China is the land of shanzhai, with fake products everywhere you look. But saying something is “fake” or a “knockoff” or a “copy” suggests IP infringement, and there are laws and procedures for determining this sort of thing.

Thus endeth the rant. What do you think?



27 Comments

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  1. Sagehens? Is that fierce and intimidating like a big tree?

    Love the “would this pass muster in court” summary of the whole Haibao-Gumby thing.

  2. If the answers to one of those last two questions is “yes,” do we then have a case of infringement? The media’s description of this issue suggests that Haibao therefore has an IP infringement problem. I strongly disagree.

    Unfortunately, it seems this post is founded on a groundless assumption. Lim never said a word about “IP infringement.” What exactly are you “strongly disagreeing” with?

    Virtually every expat I know in Beijing and Shanghai has made reference to the Gumby resemblance. Maybe you don’t see it, and maybe it’s a pure coincidence, the way the arms are folded, the eyes, the smile. But I was just in Shanghai last week working at the Expo site, and you wouldn’t believe how many times I heard the comparison made. Not one person, however, said a word about IP infringement and neither did Lim. They just wondered if there was some copy-catting.

    • First, I was not writing about what Louisa Lim specifically said in the press conference. She was bringing up an issue that was “out there” as a reporter, and that’s cool. Whether she used the word “infringement” or not is irrelevant.

      Many other folks have been talking about this issue for months now and have been using words like you just used — copy-catting — which directly implies infringement. I am not inventing this issue, it’s right there in your own words.

      And I still don’t buy the similarity. I mean really, the smile? Come on.

    • zball

      Does the peace symbol plaigiariz Mercedes Benz symbol, or vice versa? Anyway, I can see the similairty among those two.

      As for Haibao, a trunk body, two eyes plus two arms, Hanbao looks like Yaoming in Cartoon version to me. Gumby, en, looks like Mr. Bush to me. Yeah, those two both looks alike a human being to me. And, I can see the similarity. In fact, Gumby looks exactly like the first doodle I draw to mimic my math teacher when I was in the middle school, although I had no idea who the hell Gumby is at that time.

  3. Yeah I never really saw the whole gumby thing. If anything, it looks like the designer of Haibao plagiarized toothpaste being squeezed out of a tube. In fact Haibao just looks like the kind of thing you would see on a toothpaste box.

  4. Goodness

    The bastard child of Gumby and Bobs Big Boy. :-)

    http://www.you-are-here.com/sculpture/bob.html

    • B-real

      Wow that’s too damn close to call.

      I wouldn’t call it plagiarism, but if they didn’t bother to do any research before accepting Haibo as a mascot then this is what you get. This might have been an original who might have never seen Gumby in his life but there should have been some one to check his work and warn these guys “somebody did something similar to that, let us make something else”. Like that episode of South Park (guilty pleasure) where gay Satan wants to throw himself a “sweet sixteen” party and every idea he came up with it was shot down with “P-diddy did it”.

      I can’t believe no one thought as high profile as the Shanghai expo is with the intent to receive foreign nationals didn’t do all the necessary research to prevent any controversy such as this. All it takes is 1 pot head with fond memories of the past to point out the slightest of similarities in anything. Even the China pavilion looks like the 67′ Canadian Expo pavilion (Chinese looks better). Someone pointed out that it was designed off of typical ancient Chinese architecture, but to paint it for this event and call it an original piece is bullshit. I would personally except if some one said “oh we borrowed the design from such and such and we made it better” or “haibo is a mixture of a bunch of influences that I don’t care to disclose” Because people, it is very hard to create something that hasn’t been done before. That’s why you see all these stupid art-deco designs and abstract works of art all over the world. We have resolved to pulling shit out our asses in the name of not being accused copying some ones work.

      The Beijing Olympic “Friendlies” were great no one will ever claim them for hundreds of years (maybe). Im sure allot of thought process and research and creativity was put into their existence.

  5. Fransisco

    Whether there was copyright infringement under US law:

    1. Grumby is copyrighted. Grumby creator’s son owns the copyright. Check the Japanese interview of the son on japanprobe.com. Although he says that he doesn’t think the work is copied (idiot, he should first talk to his lawyer…when else can he make millions out of a long dead cartoon character?) he could still sue for infringement.

    2. There is a legal test to check whether a work is so substantially similar to the original, that it constitutes copyright infringement. The test looks for various factors like
    a) who is the intended audience?
    Expo visitors, and anyone visiting / living in China. I would think that all the massive advertising would tend to this conclusion. Who may confuse Haibao with Grumby? it is mostly Chinese who have grown up watching growing pains and are quite familiar with Grumby, Americans who live in China / visit China who maybe know Grumby, all other foreigners who perhaps know who Grumby is. So at-least some part of the intended audience for Haibao would know about Grumby. An overlap of audiences and resultant audience confusion can tend to show infringement.

    b) Is there a similar aesthetic appeal? i.e. does the potentially copied work have more than minor variations from the original? I think the answer here could go either way, at least from my lay man pov.
    (copying may be found even when it is done unconsciously,when the similarity is seen to be quite strong.)

  6. Fransisco

    what the hell! where’s my long-ass comment on the substantial similarity test for copyright infringement!

  7. Fransisco

    The japanese were apparently very happy to inform
    (tattle) about China’s alleged infringement of gumby to its creator’s son in the US who had not heard of the scandal. Check it out at japanprobe.com

    http://www.japanprobe.com/2010/04/27/japanese-tv-interviews-gumby-creators-son-about-shanghai-expo-mascot/

  8. DJ

    The “Haibao” mas­cot design is a copycat act, but not Gumby.

    BTW, check out the English mistake in the second picture.

  9. You seem to be coming to China’s legal rescue in a case where nobody’s actually going to bring them to court. If anything it’s the court of public opinion that counts here, and if you have to make a list bullet points to explain why Gumby and Haibao aren’t similar…and those bullet points take up several paragraphs…then I’m afraid you’ve just proven that China has lost this battle.

    • Why is public opinion more important? What if the public is wrong about something (e.g. charges of IP infringement)?

      Public opinion only counts when people are confused whether something is genuine or not. In this case, whether there is infringement or not, no one is suggesting that Haibao was created by whoever owns the rights to Gumby.

      As to the bullet points, that was an example of the kind of analysis that would be done in an IP case (and was probably quite boring to read). However, the alternative of “it sort of reminds me of Gumby” is rather useless.

      • Public opinion is the only thing that matters here because we all know that it will never go to court. Do you actually think there will be an infringement case?

        I enjoy your writing, Stan, but I’m confused why you’re so defensive about this. How is there a right or wrong in this case? People think that they either look similar or they don’t, and if I’m not mistaken THAT is the definition of public opinion.

        • OK, here’s why I’m defensive. This may piss people off, but it annoys me when “laymen” make pronouncements about China IP issues when they don’t know anything about the subject. This usually leads to poor (“I know it when I see it”) analysis, unless the infringement is obvious. I know that sounds hopelessly arrogant, and to some extent it is, but that’s essentially where I’m at with this case. I do this stuff for a living, so it matters to me in that sense.

          The public can talk about anything they want. The public can insist that there will be an earthquake in Beijing in the next few days (they are saying that), but that doesn’t mean it’s a fruitful discussion based on logic.

          There is no right or wrong because the case will never go to court. But as a famous philosopher once said, “There are no stupid questions, just stupid people.” In this instance, it’s not stupid to suggest that there is infringement, but it is ill-advised to say that before considering what “infringement” really means and what one has to prove to get there.

  10. Jones

    Oh, thank god you guys explained this huge, controversial subject. I tossed and turned all night the past 4 nights trying to figure it out in my head if the blue “A” thing was a knock-off of Gumby or not.

  11. Sam

    The very idea of having a mascot is copycatting already, isn’t it? I never know how to answer the “high school mascot” and “mother’s maiden name” questions an the e-banking login screen.

    And Gumpy isn’t plagiarizing Barbapapa?

  12. Zuo Ai

    First time I saw Haibao I was like, “that fucker looks alot like a blue gumby”. I mean, gumby’s a pretty unique looking character, you make something that looks a hell of a lot like it, its pretty obvious where u got the idea from. Now I know this is gonna sound nerdy, but look at the power ranger and voltron, its pretty obvious that the power rangers’ creative was like “yeah, just like voltron, but lets just make it 5 different dinosaurs.”

    Imagine if a movie came out in China about robots from another planet that could transform into vehicles. The leader of the good robots transforms into one of them blue soviet style trucks u see everywhere in China. Of course people are gonna be like “that’s the Chinese Optimus Prime,” cause itd be pretty damn obvious someone just looked at Optimus prime, tweaked a couple things, and put it out there. No biggie, haibao is just the Chinese gumby: shorter, has different hair, and different eyes than the “western” version.

  13. lolz

    Most of these mascots are inspired from other sources anyway.

    If you look closely, the recent vancouver olympic mascots is created off the pedobear template
    http://www.anchorplateip.com/uploads/image/Pedobear%20with%20Mascots.jpg

    I do like China’s shanzhai culture though, especially when it comes to buildings:
    http://dzh2.mop.com/topic/readNewbie_10039934_0_0.html

  14. Diamond

    I think in the interest of full disclosure, Stan, you need to let these people know that you were President of the “The Gumby Revival Society” back when we were at Los Alamitos High School (go Griffins). I believe that given the choice of Gumby and China giving away working working Nuclear Rods to Islamic Terrorists, you would go Gumby. I do think you would write about the Nukes, but there is no way you could possibly skip the Gumby issue. This is the only way I can use my expertise on your blog, unless Poker or Languages come up soon.

  15. Michael

    The problem doesn’t necessarily lie with whether or not it’s a rip-off, it’s the fact that china has a well-established reputation for ripping things off. They all but admitted to ripping off the theme song for the expo from a not-so-well-known Japanese pop artist (I can hear the grinding of 60+ year old axes grinding already), you can’t buy a guitar online without worrying if you’re getting the real thing or not, the undervalued yuan, cddvdvcd, hell even right outside the gates of the expo people were selling rip off versions of the rip off gumby! Wanna convince me that your “toothpaste” guy isn’t a rip off? Give me a country with a reputation that doesn’t rip things off.