Where Is the Boundary between Artwork Recreation and Plagiarism

Meteor Tang, China IP,[Copyright]

Recently, Belgian artist Chiristian Silvain accused Ye Yongqing, professor of Sichuan Fine Arts Institute, art director of the Chinese Contemporary Academy of Arts and renowned artist, of plagiarizing his works of art, which brings Ye huge benefits. This has aroused public attention to the arts circle.
According to an insider, plagiarism is common in the art circle, and many great artists have done so. Fernando Botero, an Columbian artist who lived most of his time in Paris, contemporary Chinese artist Zeng Fanzhi, and even famous French artist Marcel Duchamp were accused of plagiarism, but they all explained their behavior as "recreation".
Maybe a distinction of facsimile, appropriation and copycatting can help us have a better understanding of relevant issues concerning "plagiarized art". Facsimile can be considered as the "origin of artistic creation". But is it a kind of plagiarism when it comes to replicas of ancient Greek sculptures and Duchamp's parodic Mona Lisa? Against the backdrop of a short history of only four decades of China's contemporary art, many Chinese artists learn from traditional Western art. Are copied works emerged during this period a side effect of fast development or a kind of plagiarism? On top of that, how does the legal system define the so-called facsimile, appropriation and copycatting?
In art: applying a new idea equal to recreation
Idea and style are of overwhelming importance in art. Hao Qingsong, an art critic, curator, and professor of art history theory department of Tianjin Academy of Fine Arts, told China IP journalists that to know whether a work of art is a plagiarized one first requires an identification of its type—whether it belongs to classical, modern or contemporary art.
For the classical art , the methodology is imitation. It pays attention to whether a work is similar to the original objects, which is considered as a standard. Modern art focuses on how to paint instead of what to paint, which means form and style are more important.
For instance, an object painted by two artists in different ways can have totally different forms and styles. Contemporary art pays more attention to internal, invisible ideas, namely artists' own thoughts and the meanings they give to their works.
Therefore, compared with the other two types of art, contemporary art has fewer requirements. That is to say, even if the content and form of one work are similar to or even the same as those of another, as long as the artist applies a new meaning to it, it can still be considered as a creative work in the light of contemporary art. Therefore, it is a work of recreation, rather than appropriation or copycatting.
According to Hao, when an artwork is exhibited, the time it was created and the signature of an artist were always attached with the work. Instead, the artist's idea and interpretation are not always seen.Therefore, changes of definition must be taken into consideration. "In the past, art refers to a piece of work, which serves as a center for the whole art; whereas the art today refers to an artistic world, in which artwork is no longer a center, and artists, critics, curators, collectors, galleries and directors of art galleries also play a part." Therefore, whether a piece of work is an artwork and whether it is good depend on the judgment of the whole artistic world. This means the interpretation of artists themselves, critics, curators, and even directors of art galleries, who all serve as the center for a piece of work, have an impact on the definition and explanation of this work.
In judicial practices: the standard is access plus substantial similarity
There is no provision in China's Copyright Law to determine copyright infringement, but the universally accepted standard of "infringement = access + substantial similarity" is always adhered to in judicial practices when it comes to the determination of copyright infringement.
According to Cui Yuhang, a judge of Beijing Intellectual Property Court, access refers to the fact that the infringer has a likelihood of access to the protected work. In general, the access evidence includes reading or viewing the protected work by the infringer and reasonable opportunities or possibilities of reading, hearing or using the work of the plaintiff.
"Second, 'substantial similarity' refers to that basic expressions, rather than thoughts and ideas, of two works which are similar." Cui Yuhang exemplified, "Take artworks as an example, basic expressions are aesthetic factors, including lines and colors. To determine whether two works have similar basic expressions is rather subjective, and varies with different people's different experiences and positions. Therefore, in judicial practices, experiences and positions of the general public are considered as a standard, and it is the public who determine whether the two works are similar."
Third, if the two standards mentioned above are met, the defendant can object the infringement only when the person has reasonable reasons, including statutory license, fair use and legal authorization. According to Cui, Marcel Duchamp's recreation of Mona Lisa does not constitute infringement, if the artist aims to learn something through appropriation and self-appreciation. However, there would be infringement if he exhibited or sold his work to the public.
The relationship between damages and the hammer price
In the plagiarism scandal of Ye Yongqing, Silvain pointed out that Ye not only plagiarized his works, but also auctioned those copied works for millions of Yuan. Once the court determines Ye's infringement, will the damages be related to the hammer price of the copied works?
According to Cui, there are relatively fixed standards for compensation in the legal system. The amount of compensation is partly related to commercial prices, but the determination of infringement has nothing to do with market value. Only after the infringement is determined, will market price be taken into consideration. "Given the small amount of litigations in contemporary works of art, courts always hope that rights owners can offer evidence of their damage or infringers' profits. If there is no such evidence, only statutory compensation will be applicable. According to relevant laws in China, the highest amount of compensation for protected works of art including photos is 500,000 Yuan."
Of course, for specific photos, judgment needs to be based on their own artistic value. Rights owners can offer evidence including clicks, and usage scale and frequency as proof; but there is no compulsory standard in this regard. All works of art should be analyzed according to their own situations, including their value, usage, the intention of infringers and many other factors.
Suggestions: the art circle should enhance the awareness of IPR protection
In recent years, artwork plagiarism has become very common; however, the number of people who resort to legal action to protect their rights and interests is few. Copyright owners should pay attention to rights protection.
Cui Yuhang told China IP journalists that first, artists should record their creation process as much as possible; once a work is completed, they should register in copyright associations or other institutions to establish evidence. This plays a positive role in defining rights and interests of rights owners. Second, when authorizing rights to others, rights owners should sign authorization contracts, define basic elements such as the details of rights, authorization period and scale, and avoid ambiguous provisions so that authorized people cannot go beyond their rights or sub-license their rights. If infringement occurs, rights owners should first know their own needs, and choose between negotiation and settlement, and litigation. What is noteworthy is that owners must pay attention to the collection of evidence of their own rights and others' infringement.
In addition, Cui also suggested that users should first get an authorization letter from the rights owner and pay attention to their own limited rights. Due to multiple times of spreading, sometimes it is difficult for users to contact rights owners and get authorized. Under such a circumstance, when rights owners claim rights, users should respond positively. For example, users should verify whether the parties claiming the right are the copyright owners, stop infringing owners' rights and negotiate with them to avoid litigation and higher cost.

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