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The Paintor Still Enjoys the Right to Exhibit the Duplicate of the Artistic Work after Giving the Original to Others


Appellant (defendant in first instance) : Tianjian Roast Duck Catering Co., Ltd.

Appellee (plaintiff in first instance): DUAN Jifu

Introduction of the Case

Mr. DUAN Jifu is a member of China Artists Association, and the deputy president of Tianjin Artists Association Comic Committee. In January, 1992, Mr. Duan created a picture in Tianjin Roast Duck Catering Co., Ltd.. This work is composed of the four Chinese characters and comic portraits of Mr. DUAN himself and “Old MA” which is a representative character created by Mr. Duan. The signature is “Congratulations from DUAN Jifu and Ola Ma” and the drawing is noted “Stored by Tianjin Roast Duck Restaurant”. After completion, this work was given to the restaurant.

Tianjin Roast Duck Catering Co., Ltd., in 2008, reproduced the picture as copperplate work and hanged the same in its restaurant in the fourth floor. Next to the drawing are the dining rooms and finance room of the company.

First instance judgment

According to Item 8, Article 4 of Implementing Rules of China Copyright Law, “works of fine art are two- or three-dimensional works created in lines, colors or other medium which, when being viewed, impart aesthetic effect, such as paintings, works of calligraphy,sculptures and works of architecture. The concerned work in this case is a calligraphy and comic work and should be deemed as a work of fine art.”

According to article 11 of China Copyright Law, the copyright in a work shall belong to its author. The author of a work is the citizen who has created the work. So Mr. DUAN Jifu is the copyright owner of the concerned picture. And Tianjin Roast Duck Catering Co., Ltd. is the owner of the work.

Whether Tianjin Roast Duck Catering Co., Ltd. Infringed the right of exhibition owned by Mr. DUAN Jifu

According to Article 18 of China Copyright Law, The transfer of ownership of the original copy of a work of fine art, or other works, shall not be deemed to include the transfer of the copyright in such work, provided that the right to exhibit the original copy of a work of fine art shall be enjoyed by the owner of such original copy. So, in this case, the right to exhibit the duplicate copy of fine art work is still enjoyed by the copyright owner. Tianjin Roast Duck Catering Co., Ltd. hanged the picture in its business place, which has constituted a public dispose of the concerned picture.

Tianjin Roast Duck company defended that the original drawing is damaged so the duplicate copy is used as compensate. But original work of fine art and the duplicate copy are essentially different.Original copy of work is the carrier of the original work. The creation of work of fine art is irrecoverable. The author’s inspiration and personality is condensed in the draft. So the original copy of fine art has all the information of the work and cannot be replaced by any duplicate copy or recreation with same theme. So the Tianjin Roast Duck’s argument of replacing the original copy with the duplicate one should not sustain. Though the original copy of the work is owned by the defendant, but the right to exhibit the duplicate copy still belong to the copyright owner. So Tianjin Roast Duck company infringed the copyright of Mr. DUAN Jifu.

Whether Tianjin Roast Duck company infringed the right to reproduce the original work of fine art 

In China, the economic rights of copyright are categorized to reproduction right, derivation right and broadcasting right. Right to exhibit the work is a kind of broadcasting right. The reproduction act of the defendant is only for public display rather than for profit, so such act is not an infringement of the reproduction right of the copyright owner.

What responsibilities should the defendant take?

Regarding the compensation amount, the plaintiff cannot provide any evidence showing his loss due to infringement or the profits gained by the defendant, so the final amount should be determined by legal calculation. Taking reputation of Mr. DUAN Jifu, type, content, influence of his work as well as the organization form, infringement details and results etc into consideration,the final amount is decided to be 30,000RMB. The plaintiff requested the defendant to apologize for infringement but since such act does not infringe any personal right of the plaintiff, such request should not be supported.

Tianjin Roast Duck Catering Company is not satisfied with the first instance judgment and filed an appeal.

The second instance court holds:

The exhibition right refer to the right to publicly display the work of fine art, photographic work in original form or duplicate copies. In this case, the concerned work is work of fine art which was displayed in the fourth floor by the appellant next to the elevator, near the financial room and dining rooms open to the public. The appellant admitted that anyone taking the elevator will see the picture. So it could be confirmed that the concerned picture could be viewed by unpaticular people. Though the appellant is the owner of the original copy of the work as well as the right to exhibit the original version. But it does not gain the authorization to reproduce the work and display the duplicate copy and shall take responsibilities for such act.

As to the compensation amount and proper expenses, the court holds that the amount calculated by the first instance is too high. The reasons are as follows:

  1. The appellee gave the concerned work to the appellant knowing that it is a catering company for profit and is open to unparticular public. He should predict that the appellant will place the work in its business place.

  2. The appellant reproduced the work to store the picture since the original work is destroyed. The use of the duplicate copy has not exceed the use of the original copy and such use is not for profit. Also this act does not bring any real benefit to the appellant. Even if there are benefits, compared with hanging the original copy, the hanging of the duplicate copy will not bring the appellant more benefits.

  3. The appellant only made one duplicate copy of the picture which is an equal proportion and a complete reproduction. And the copy is not used for profit. The act of reproduction and exhibition will not influence the potential market value of the picture and does not cause any actual loss to the appellee.

  4. The appellee requested for psychological loss, but the reproduction and exhibition of the work does not distort, modify or uglify the picture and also keeps the signature. So such act does not infringe any personal right of the appellee.

In the end, the second instance made the judgment that Tianjin Roast Duck Company infringed the exhibition right of Mr. DUAN Jifu and should stop infringement immediately, and the appellant should pay 25,000 RMB to the appellee as compensation and proper expense.

Tag:  Copyright in China;  Copyright Protection in China

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