China IP: Painters vs. Photographers

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If you’re a fan of that iconic Shepard Fairey image of Barack Obama, the so-called “Hope” poster, and you followed the lawsuit that ensued over Fairey’s use of an Associated Press photograph of Obama, you might be interested in a similar case here in China.

This one involves artist Feng Ming and a news photo of Wen Jiabao at Wenchuan, surveying the earthquake damage. The photo graced newspapers nationwide:

An oil painting, auctioned for 3.5 million yuan ($538,000) on May 6 in Chengdu is again in the limelight after it was deemed “extremely similar” to a widely published news photo – triggering a hot dispute over whether that constitutes piracy.

The painting, some 1.5 meters tall and 2.8 meters wide, titled Premier Wen Jiabao in Wenchuan, depicts the premier visiting the earthquake-stricken area.

It was painted by famed artist Feng Ming, who started his work in 2008 and spent nearly a year finishing it.

The copyrighted photo was taken in May, 2008 by Yao Dawei, a photographer for Xinhua News Agency. It was used on the front page of many newspapers across the nation.

So we have the same issue here that Shepard Fairey and the AP fought over. That case, and related disputes over merchandising, were settled. How about this one?

Well, first of all, photographs are indeed protected under China’s Copyright Law. (Article 3(5) “photographic works”) What happens if a photograph is reproduced in its entirety without authorization, sort of like what I’m doing with the image of the painting in this post?

Reproducing copyrighted works are considered unauthorized publications and prohibited under Article 46 of the Copyright Law. So without permission of the painter, I’m not really supposed to reproduce the image of the painting in my blog here, unless I’m considered to be engaging in the news biz. At least I’m including attribution, though, without which I’d be in even more trouble.

So that’s an easy one. What about something that isn’t a straight-on reproduction, but the publication of a work that was created using another copyrighted work as its basis? This is what Feng Ming’s problem is, the same thing that got Shepard Fairey into trouble.

Broadly speaking, this sort of thing is called creation of a “derivative work.” It is a work derived from something else. In my line of work, the most common derivative work I come across is a translation. Let’s say you’re an author of a book in English, and someone translates the book into Chinese. The original manuscript’s author (and if applicable, the publisher) has moral and economic rights to that copyrighted work.

What about the derivative work in Chinese? Well, there are also rights associated with that translation, which would be owned (absent an agreement to the contrary) by the translator.

But here’s the kicker: the translator must have permission from the owner of the original rights to the underlying work before he/she may exploit that work in creating a derivative work.

This is Feng Ming’s problem. Xinhua created/owns the photographic work, and the painting, the derivative work, was created without the permission of Xinhua. If the painting looks the same as the photo, then Feng Ming is in some trouble.

Any exceptions? I don’t think so in this case. Ironically, if it was Xinhua taking a photo, for news purposes, of a Feng Ming painting that was being displayed to the public, that would be allowed under Article 22 (10) of the Copyright Law. The image of the painting I included here is from China Daily, which is covered under the Article 22(10) exception.

Here is what Feng Ming has said in his defense:

Feng defended his work by saying oil painting and photography are different categories of art.

Um, no, copyright doesn’t work that way. Maybe he was thinking about patent or trademark law?

“I represented the photo, along with the feelings involved, with my work, so it should not be regarded as an infringement,” he said.

I’m not even sure what that means, but if he’s saying that the painting is sufficiently different from the photo that it should not be considered infringement, that could be a defense. However, he is also saying that he “represented the photo,” which is tantamount to admitting that he did in fact infringe on Xinhua‘s rights.

As well, “the images of national leaders are not owned by photographers”, he said. But he admitted he based his painting on Yao’s photo and should have informed him after completion.

Again, I think he’s a bit confused here. The Copyright Law does contain exceptions for certain types of news, speeches by government officials, and government documents. But images of national leaders as a broad exception? I don’t think so.

Fun issue, huh?

3 responses on “China IP: Painters vs. Photographers

  1. Steve M

    This case demonstrates one of the (many) shortcomings of China’s fair use regime: the lack of provision for transformative borrowing.

    Had Shepard Fairey not settled with the AP, I imagine that the crux of his fair use defense would have been that the “Hope” painting was transformative. I’m not entirely confident that he would have won, but the argument is certainly plausible under U.S. law.

    Not having seen Feng’s painting, I obviously can’t comment on how transformative it was. But even if the painting was significantly transformative of the original photograph, it would still be difficult to even argue fair use under Article 22. As many Chinese academics have pointed out, the Article 22 framework is simply too rigid.

    1. Stan Post author

      Rigidity in Chinese law? Say it ain’t so! :)

      Seriously, it’s possible that this was one of the arguments that Feng was trying to make in that interview I quoted. From what I understand of the photo and painting, though, I don’t think there was a lot of transforming going on there.

  2. Lynne

    Stan,

    Well done. You’ve written about a great subject and provided us with highlights about Chinese common misunderstandings about what copyright entails. Perhaps, you should be an expert consultant to many of the Chinese online search engines, portals and social media sites. BTW, I wonder who will finally receive the 3.5 million yen. My bet is that neither of the ‘works’ authors receive it!