Perplexity in Copyright Protection for Artworks

2011/12/22By Anne Zhang, China IP,[Copyright]

Infringement disputes concerning works of art have again become the focus of people’s attention, as Leopard, an oil painting by Chinese artist Zeng Fanzhi, was suspected to be infringing upon the copyright of a photograph by Steve Winter, an American photographer from National Geography magazine. Many artists feel that questions such as what rights artworks have and how to protect these rights are a perplexity in the art circle. And these questions are actually closely related to their own interests. In order to find out the solution to this perplexity, reporters from China IP have interviewed Zhang Jie, Vice Director of the Copyright Law Professional Committee of Beijing Lawyers Association, on questions concerning copyright protection for artworks.
 
Who Is the Copyright Holder?
 
Many issues should be cleared and defined in copyright protection for artworks. Ownership of copyright, i.e. who is the copyright holder, is one of them. The copyright dispute concerning an oil painting named Chairman Mao on His Way to Anyuan, which Zhang Jie has represented, is such a lawsuit on copyright ownership.
 
In certain kinds of artistic creations, a single artwork might be created by many authors, including individuals and organizations. Though the manner and extent of each individual’s participation in the artistic creation process are different, they have all contributed to the formation of the artwork. Therefore, the final achievement is the result of the efforts of all the participants. Under such circumstances, how the law should deal with the copyright of this artwork is a pivotal issue. Who is the owner of the artwork is the first thing to be defined.
 
If an artwork is finished by one person from beginning to the end, the judgment is comparatively simple. Once there is a cooperative relationship, the ownership must be clearly defined. In today’s marketized world, confusion in ownership will cause a great loss of money for artists.
 
Legal Issues Caused by Counterdrawing
 
Counterdrawing has caused a great deal of legal issues. It is a representation of the original work; therefore it is to some extent a copied version of the original one. Whether a counterdrawn work is infringing upon the original work is judged differently according to the extent of counterdrawing.
 
For example, Zeng Fanzhi’s oil painting Leopard was suspected of infringement because he was using another form of art to imitate the original work. Generally speaking, there are two situations: one is complete or direct counterdrawing, i.e. completely the same with the original work, resulting in a duplicate; the other is partial counterdrawing or using the original work as a frame of reference, which has some elements of recreation. The infringement judgment of the latter is more complicated. Whether such a work is infringing upon the original one should be judged on a case by case basis. At the same time, the condition of fair use in Copyright Law of China should also be considered. For instance, Article 22 in Copyright Law provides that to counterdraw, paint, photograph or shoot works of an art set or exhibited in outdoor public areas is “fair use” in the legal sense of Copyright Law. Permission and payment are not required for the usage. But the name of the author and work of art should be indicated to avoid the appearance of infringing upon any other rights. This kind of usage without infringement is restricted to certain areas such as the sculptures on the plazas.
 
The protection period of copyright should also be considered, that is, whether the original work exceeds its protection period or not. The protection period for right of publication and property right in work is the whole life of the author plus 50 years after his/her death. As to the moral rights of copyright such as rights of authorship, alternation and integrity, the protection period is not limited. The substantial similarity, in a legal sense, means that the two works are twin-like. For some works, the only difference between them is the size. If an ordinary person with an average cognitive level may see their similarity at first sight, the two works are inevitably the same or substantially similar. If a work only repeated the theme of another one and other elements are created by the author himself, it can be defined as a new artwork.
 
Some artists may think that their works have much higher artistic value than the original ones. However, artistic value is not a standard for judging infringement in law. Once it is confirmed that you have used something that does not belong to you, you have to get permission from the right holder. There are many legal issues concerning the use of counterdraw works, which should arouse much attention from the artists.
 
Major Form of Infringement upon Artworks: Counterfeit Signature
 
Counterfeit signature occurs most frequently among infringements upon works of art (especially paintings). Article 48 (8) in Copyright Law stipulates the situation for producing and selling works of art with counterfeit signatures.
 
This kind of infringement can often be seen in auctions of artworks or other means of transactions. If the signature of a work of art is counterfeited and the work is sold in an auction without informing the buyer what’s going on behind the scenes, this is defined as cheating and it infringes upon the interests of the buyer. Since it violates the relevant provisions of Contract Law and Consumer Protection Law, the party being deceived can invalid the contract and ask for double indemnity. Besides, the counterfeiter should bear the tortious liabilities such as civil compensation to the person whose name has been counterfeited. If the counterfeiter does harm to public interests, copyright administrative departments may order the counterfeiter to stop the infringing acts, confiscate the income through counterfeiting and confiscate or destroy the infringing works. Administrative departments with proper jurisdiction may also fine the counterfeiter; as to the serious cases, they can confiscate the materials, instruments or equipment for producing the infringing works; as to the cases that constitute crimes, the criminals should bear the criminal responsibilities according to law.
 
If the buyer purchases the work knowing that the signature is counterfeited, this is not defined as counterfeiting. At the same time, both the producer and the seller should bear legal liabilities. However, the activity itself actually results in the disorder in the auction market of artworks, where large numbers of counterfeits exist. If a buyer purchases a counterfeit in an auction, he has to swallow the bitter fruit himself. According to the Auction Law, the buyer has to judge the quality of the things at the auction and their authenticity on his own. The seller at the auction doesn’t need to bear any legal liabilities. So how can the law protect the interests of the right holder?
 
Zhang Jie thinks that for the counterfeits at the auctions, if the artwork is created by an author and is still within the copyright protection period, then the seller and the consignors at the auctions should bear the burden of the assumption of having infringed upon the copyright of the copyright holder if they are not licensed.
 
If the seller at the auction knows or should know the piece is a counterfeit and fails to inform the buyer, the buyer is entitled to damages as a matter of law, if a reasonable would consider the piece to be genuine. The seller must bear related civil compensation liabilities according to the Contract Law of the People’s Republic of China, and the Consumer Protection Law of the People’s Republic of China.
 
As to the infringing acts against the Auction Law of the People’s Republic of China, relevant government departments may enforce administrative penalties; as to the infringing acts that constitute a crime, the criminal suspects will bear criminal liabilities if found guilty.
 
The present conundrum is that the definition of what constitutes a work of art is comparatively complicated. For example, when identifying high quality imitation works of paintings or calligraphy pieces, even astute experts face difficulties identifying imitations at times due to the potentially delibrate quality of imitations. The order of the market depends on the powerful enforcement of law by governmental administration agencies on the one hand and the clear awareness of the rights on the part of the right holder on the other hand. Only in this way can the infringers receive the punishments they deserve.
 
Artists Should Actively Safeguard Their Rights with Better Legal Awareness
 
At present, the artists are still faced with many difficulties safeguarding their rights. Upholding their rights inevitably involves the investment of money, energy and time. If the result of this investment is not satisfactory, the enthusiasm of the artists to protect their own rights might be dampened. What’s more important in maintaining enthusiasm for rights protection is that in their hearts, the artists believe that their artistic creations should be respected and rights must be protected. Without effective protection of their rights, how can there be a quality environment for artistic creation? Without protection for artistic creation, how can a society inherit and develop its art industry?
 
First, the copyright protection for artworks requires effective and reliable social enforcement mechanisms with real solutions that enable professional evidencecollection and preparation for lawsuits. Compared with common economic cases, this type of legal work requires individuals with more professional backgrounds. This will only work when artists can depend on more sustained protection efforts and a network of lawyers and judges with wisdom working in this field. As right holders, artists usually lack the professional capacity to provide adequate legal evidence which measures their actual losses. A great deal of detailed work needs to be done by seasoned professional copyright lawyers.
 
In the application of law, sometimes the adjudicative compensation cannot sufficiently protect the right holder, which has also results in the extremely low costs for those guilty of infringement acts. Dismal penalties not only harm the copyright protection for artworks, it also creates the impression that the system lacks positive and adequate protection for the rights of artists. All the fields of the society should appeal to the judicial institutions to gradually strengthen the adjudicative force in infringement cases, so that the infringers dare not infringe upon others’ rights casually. When being sued, they should get and give what they deserve. This kind of judgment is what the artists really want and successful examples may have desirable social effects.
 
Zhang Jie suggests that when an artist finishes a piece of artwork, he/she can publish it through copyright registration, exhibition, display, publication, etc.. This kind of public deed is very important for proving their prior ownership rights, which is called publicity in law. Copyright registration is not always based on absolute proof, but it can be used as a primary element for success. Since a work of art might be transacted in the future, it is necessary to prepare something to prove one’s right in the work.
 
Second, it is very important to sign contracts. For example, when an artist begins to create, there is usually a consigned individual or organization. In this situation, there must be a written document to clearly explain issues such as who is the investor, who is the copyright owner, how to divide the income, etc. It does not mean that artists should be very familiar with the provisions in laws, but they must at least have basic legal awareness. It’s better to let the professionals examine the contracts, even if they only provide some suggestions. Early legal awareness may prevent disputes in the future.
 
Profile:
 
Zhang Jie is Partner in Beijing Juntai Law Firm, Vice Director of Copyright Law Professional Committee of Beijing Lawyers Association, Legal Advisor for Science and Technology Publication Committee of Copyright Society of China, member of the 2nd Committee for Protection of Inventors’ Lawful Rights of China Association of Inventions, member of the Ethics Committee in Beijing University of Chinese Medicine Third Affiliated Hospital, member of China Law Society, Superintendent for the image of Police of Security Administration Corps of Beijing Municipal Public Security Bureau, Advanced Trainer in Lawyers School of Dianjing net, “Excellent Individual” in the activity of learning scientific development among lawyers of Haidian District, Excellent Legal Worker for the Year 2010 of Haidian District in Beijing.

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