For quite a long time in China’s contemparary art history（1）, artistic creation, guided by the slogan “literature and art should be subordinated to palitics,”(2) was carried out mainly as a “political task” or as a “tool for propaganda”, and therefore art had tittle to do with law. In the early 1980s, after the opening to find a way out for the artworks which were gradually changing in nature from merely tools to art commodities, raised the issue of art commercialization(3) though they never raised the issue of art law because most artworks at that time were traded in private or in stores with the characteristics of planned economy.
From the early 1970s to the late 1980s, the art speculation by western and especially Japanese wealthy people caused the price of artworks to soar all the way to an unprecedented high level(4). By the end of this art investment rush, art markets in China were awakened. People, no longer shy of talking about the trading of artworks, offered them for sale openly, asked prices directly and even put them up to auction.(5) Art appeared in markets and came to the ordinary people. With the development of artwork business came up the issue of art law. A few keen artists, critics and legal workers, driven by their professional need and strong interest in art, began to study and analize this new phenomenon - the marriage between art and law. They wrote books and gave lectures, providing legal aids to people in the art markets and offering advice and measures to cultural administration departments. The era of art law finally came to China.
Section I. Legislation On Art
In China, art law concerns such legal problems as involved in the creation, exploration, production,sale,transfer, exhibition and collection of artworks and cultural assets. These legal problems consist of the import, export, auction and authentication of artworks, insuranec, tax, freedom of speech, and the protection of intellectual property, etc - problems which have to be solved and regulated by many kinds of laws and regulations rather than a single rule.(6)
A. Copyright Law
The protection of artist’s rights is one of the main contents(7) in art Law. While China’s Constitution corfirmed its citizens’ freedom in art creation long ago,(8) the first law to protect artists’ intellectual property rights had not come into being until 1990 when the copyright law of the Preople’s Republie of China was promulgated.
It should be pointed out that, from the very beginning, China’s Copyright Law set a high standard for itself in its protection of artists. For instance, by the law photographic works and works of fine arts are placed under the same provision as common protected works, and therefore the term of protection of photographic works is set to 50 years after the author’s death, the same as that for works of fine arts.(9)
The term of protection of photographic works in Berne Convention is 25 years,(10) different from that of works of fine arts. As for architectural works, Rules for the Implementation of the Copyright Law defines it as works of plestic art,(11)which is in accordance with the requirements of the Berne Convention. The Copyright law does not make any clear provisions on works of applied art, but International Copyright Treaties Implementing Rules provides that works of applied art by foreigners enjoy 25 years of protection.(12)
The Copyright Law stipulates, “the copyright in a work belongs to its author”,(13) and “the author of a work is the citizen who has created the work”.(14) That is to say, only those artists who engage in the creation of fine arts are the real authors and would enjoy the copyright. In respect of commissioned works, the commissioning party could acquire the copyright by a contract or an agreemcnt even if they have not engaged in the creation of the work”. However, the provision further stipulates, “in the absence of a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party”.(15) This stipulation places under a favorabll condition the commissioned party, who has not entered into a contract or who has entered into a contract which does not give an explicit agreement.
It is necessary to distinguish the ownership of the original copy and the copyright, because, in most cases, the use of the works of fine arts only relates to the original copies. The Copyright Law says,“ the transfer of the ownership of the original copy of a work of fine arts or other works, shall not be deemed to include the transfer of the copyright in such a work, provided that the right to exhibit the original copy of a work of fine arts shall be enjoyed by the owner of such original copy.” (16)When the ownership of the original copy has been transfered the owner of the original copy would still be in a favorable position. Therefore, it is feasible for him/her to enjoy the right of exhibition. However, the extention of the said right should be limited, and in addition, some problems could be solved by contracts（17）. So it is stipulated, for example, that the owner of the original copy shall not exhibit a work if the artist of the work does not agree to have his work exhibited; and that the owner of the original copy, without reasonable reasons, should not refuse the request of the author to borrow back his work for exhibition. It can be concluded from this provision that, except for the right of exhibition, the artist who has transfered the ownership of his work still keeps the right of publication, modification, reproduction, etc., which are provided for by the Copyright Law. However, the Law does not stipulate how to guarantee the exercise of the said rights.(18)
The main limitations upon artists’ copyright are: to allow a person to use a published work for his own private study, research or self-entertainment; to allow a educational or scientific institution to reproduce a published work in a small quantity for teaching or scientific purposes, but not for publication; to allow a library, museum or art gallery to reproduce a work in its collections for display, or for preservation of a copy, of the work; and to deem it reasonable for people to copy or to take pictures of an artistic work located or on display in an outdoor public places.(19)
As a great number of forged works which are actually imitations of the excellent works of famous artists have been found in art markets, the Copyright Law specially stipulates, “producing or selling a work of fine arts where the signature of an artist is counterfeited”(20) is an infringement act and the infringer shall shoulder the liabilities, depending upon the circumstances, of ceasing the infringing act, eliminating the effects of the act, making a public apology or paying compensation for damages,and may be subjected by a copyright administration department to such administration penalties as confiscation of unlawful income from the act, a fine etc. Article 217 of the Criminal Law of the People’s Republic of China, effective on October lst, 1997, stipulates that anyone who, for the purpose of making profits, produces or sells a work of fine arts where the signature of an artist is counterfeited may be sentenced to from three to seven years in prison plus a fine.
In order to strongly protect the intellectual property rights of artists, China has, in addition, promulgated and implemented the Trademark Law, the Patent Law, the Law against Unfair Competition, etc.(21)
B. Auction Law
As a means of trading, auction, with a long history behind it,(22) is perhaps the best way of trading artwarks with unique cultural values. This is because the price of a speicfic piece of artwork changes in value depend not only on the materials consumed in the creation of the work but also on its artistic charms, the presnt social status of the artist, the number of similar artworks in existence, and the possibility of its appreciation in value inferred from the sales of other artworks by the same artist. In measuring these invisible factors, auction is quite effective.(23) However, since socialism was established in China, auction had been denied as something belonging to capitalism, and therefore, for quite a long time, the prices of the few artworks sold a little now and a little then had been decided in accordance with their sizes. After the third plenary session of the Communist Party of China, with the implementation of China’s policy of reform and opening to the outside world and with the development of market economy, auction, adapted to the requirement of a fair, competitive and open market, revived as a special means of trading. In 1989, the first state - owned auction shop in China was established in Guangzhou, and in the following ten years hundreds of auction enterprises engaged in the auction of artworks besides other commodities have been established in Beijing, Tianjin, Shanghai, Shenyang, Dalian, Changchun, Harbin, etc. Some local regulations on auction have also been promulgated by the departments concerned.(24)
The Auction Law of the People’s Republic of China, adopted at the 20th meeting of the standing committee of the Eingth National Reople’s Congress on July 5th, 1996, and effective on January lst, 1997, affirmed that auction is a kind of “trading in which a certain article or property right is transfered to one who offers the highest price in an open competitive bidding.”(25)
The Auction law also stipulates, “ Auction should be carried out in accordance with relevant laws and administation rules and should follow the principles of openness, fairness, justice, honesty and trustworthiness.”(26) Auction needs to atract a lot of bidders to participate in it, and the preparation for the auction, the auction commissconing formalities, the transfer of the auctioned articles and the payment of the prices all must be completed abiding by the laws, including not only the Auction Law but alse the General Provisions of the Civil Law, and the Ecbonomic Contract Law. In addition, if an auction enterprise is to be established, it has to apply for registration and obtain a business licence in the light of the Regulations for the Administration of Enterprise Legal Person Registration. One characteristic which diffecentiates auciton from other trading activities is its openness. The auctioneer should announce the time, place and articles to be auctioned and also provide the necessary information about the articles to be auctioned within a proper period of time before the auction takes place. The auction should be done by public bidding and the conclusion of the transaction should be confirmed explicitly. “Fairness,” a principle all businesses should follow, requires that all the parties in the auction enjoy the same rights and assume the same duties, that no one will be deprived, for no reason, of the chance to bid publicly that no transaction of anything shall be concluded privately before it is publicly auctioned, and that it is not permitted to give special favours to one party while prescribing special limitations on the other. The principle of justice is applicable to the auctioneer, the consignor as well as the bidder. The Auction Law stipulates that the auctioneer and his staff are not allowed to take part in the auction as bidders or to commission other people to bid for them. The aucioneer is not allowed to auction his own articles in the auction held by himself. The consignor is not allowed to bid or to commission others to bid on behalf of him. Bidders are not allowed to collude maliciously with each other or with the auctioneer to harm the interests of others. The consignor, auctioneer and his staff, who bid or commission other peple to bid on their behalf, the auctioneer who auctions his own articles or property rights in the auction held by himself, and bidders who collude maliciously with each other or with the auctioneer shall not only undertake the civil liabilities, but also be exposed to administration penelties by the department for the administration of industry and commerce.（27） “Honesty and trustworthiness.” as a standard of both conduct and morality, means that parties in civil activities should act out of goodwill, give due consideration to facts, treat each other with all sincerity, keep their promises, and never practise fraud or deception.
The Auction Law, reflecting the principle of honesty and trustworthiness, stipulates that the consignor should make known to the auctioneer the source and defects of the articles to be auctioned and that the auctioneer should make known to the bidders the defects of the articles being auctioned.
The second chapter of the Auction Law contains stipulations on the auction objects. Auction objects refer to the properties or property rights to be auctioned. The Auction Law contains no speeial provisions on the auction of artworks, but does contain special rules for the auction of cultural relics. It provides, “culturd relics to be auctioned by comission should be examined and permitted by the department for the administration of cultural relics located in the same area as the auctioneer before the auction takes place”(28). Cultural relics are called “cultural assets” in Japan and “cultural property” or “cultural heritage” by the United Nations Educational, Scientific and Cultural Organigaion. The former mainly relers to movable cultural relics while the latter inmovable ones. Cultural relics are visible materials of certain historical, artistic and scientific value, created by human beings or related to human life.(29) The characteristic which defferentiates cultural relics from ordinary goods is that they cannot be reproduced or replaced once lost. Therefore, China adopts special policies of protection for cultural relics.(30)
The trade in cultural relics in China at present is basically made by state - owned shops, and with the development of reform and opening to the outside world, the demand for cultural relics by lovers and collectors of cultaral relics is getting stronger. In the auction of cultural relies, the Auction Law have successfully reconcile the contradiction between the strong protection of cultural relics in the collection of state - owned museums and the demand for appreciating and collecting cultural relics by people of various circles, by means of stipulating that cultural relics be examined and permitted to be auctioned according to law by the department for the administration of cultural relics located where the auctioneers’ resides. The examination and permission according to law contains two aspects of meanings. First it means that cultural relics should be examined and permited whether to be auctioned or not according to laws and regulations by the departmerts for admrnistration of cultural relics that possess the power of examination and permission. At present, this power is possessed by the administrative departments of cultural relics of provinces, autonomous regions and municipalities directly under the Central Government. Secondly, it means that the contents to be examined must be in conformity with the law. At present the State Bureau of Cultural Relies requires that the contents to be examined should include (a) whether the source of the articles to be auctioned is lawful; (b) whether they are precious cultural relics or ordinary cultural relics; (c) whether they are true or forged; and (d) whether they can be sold by auction or directional auction.(31)
Directional auction means that certain cultural relics can only be sold to certain purchasers. Some precious cultural relics may be put up to auction, but before the auction, it is already decided that they may be sold only within the boundery of China or only to certain collecting units.
Article 13 in Chapter 3 of the Auction Law stipulates that enterprises engaged in the auction of cultural relics should have, in addition to the qualifications required for ordinary enterprises, “a registered capital of ten million RMB yuan and personnel professional in the auction of cultural relics.” Up to now, the State Burean of Cultural Relics has granted certificates for auction of cultural relics to six auction enterprises: Jiade, Hanhai, Rongbao, Duoyunxuan, Hanya, Zhongshang.(32)
Chapter 3 and Chapter 4 of the Auction Law respectively contain provisions on the parties and procedures in an auction. The Auction Law contains not only qualifications required for auction enterprises, but also specific requirements for the auctioneer. The chapter on the auction procedure contains explicit stipulations on auction commissioning contracts, auction announcements, and the volume of commissions. Chapter 5 of the Auction Law contains stipulations on legal liabilities. Special attention from purchasers should be paid to article 61, which stipulates, “when the auctioneer or the consignor, in contravention of the provisions of the second paragraph of Article 18 and Article 27, fails to make known the defects of the objects to be auctioned, the purchaser has the right to require the auctioneer to compensate for the losses thus incurred to the purchaser; and the auctioneer has the right to recover the losses from the consignor if the latter bears the liabilities.” “Auctioneers or consignors who declare ahead of the auction that they do not guarantee the genuineness or the quality of the objects to be auctioned bears no liabitities for the defects.” According to those provisions above, the purchaser may require the auctioneer to compensate for any losses incurred to him by the defects found in the article auctioned. As the Auction Law stipulates ( and so does the usual practice of the auction trade ), it is the auctioneer’s duty to maintain secrecy for the consignor, and therefore the purchaser may not know who should be responsible for the defect when it is found. In that case, it is the auctionee who should bear the liability first. If the defect was caused by the consignor, the auctioneer has the right to recover from the consignor the losses for which he has compensated to the purchaser. It is worth noticing that the auctioneer or the consignor may be exempted from the liability for any defects if they have declared beforehand that they do not guarantee the genuineness or quality of the articles to be auctioned. These provisions obviously show that the Auction Law is intended to balance the interests of the consignor and the purchaser, and to make sure that the auction is done in good order. However, the Auction Law does not contain any specific requirements on the formality of this “statement of exemption”, which may make it possible for auction enterprises to seize this chance to “lure people into purchases”.(33)
C. Measures for the Administration of the Business of Works of Fine Arts
Concerning the businessof works of finearts, the Department of culture promulgated the Measures for the Administration of the Business of Works of fine Arts which makes it clear in Article 1 that “these measures are formulated with a view to strengthening the administration of the business of works of fine arts, protecting the lawful rights and interests of creaters, operaters and consumers, and promating the healthy development of the undertaking of fine arts”. Article 2 of this Measures lays down the definitions of both “works of fine arts” and “the business of works of fine arts”. “works of fine arts” are defined as calligraphy, rubbings from stone inscriptions, seal cuttings, paintings ( Chinese paintings, oil paintings, water colour, pastels, sketches, mural paintings, lacquer paintings, antique paintings ), sculptures, artistic photographic works, etc. The business of works of fine arts is defined as the buying, selling and auctioning of works of fine arts, financially supported competitions, exhibitions and sales exhibitions of works of fine arts, framing and mounting of paintings, and other services”. Defining some of the terms to be used in laws or regulations is the usual practice of legislation. There are, howevor, obvious defects in the two definitions mentioned above. With the development of times, the artistic expression of human beings are becoming more and more diversified, far beyond the scope of traditional works of fine arts, and the definition of works of fine art by the Measures obviously fails to contain some forms of fine arts, such as fine arts of installation, fine arts of landscape, fine arts of conduct, fine arts of multimedia, etc, -- fine arts which have produced a great effect upon contemporary art. The definition of the business of works of fine arts by the Measures does include auction, but, if we compare the Measures with the Auction Law, it is easy to find that there are conflicts between them. The Auction Law stipulates that the department under the state council in charge of the administration of auction trade, i.e. the Department of Domestic Trade,（34） shall supervise and administer the auction trade. The Auction Law contains no speeial requirements for the auction of works of fine arts, though it does contain special requirements for the auction of cultural relics. However, Article 12 of the Measures for the Administration of the Business of works of fine arts stipulates that certified auction units engaged in the auction of works of fine arts, when applying to hold auction of works of fine arts, should submit to the departments in charge of cultural administration such documents as applications, activity programmes, auction charts, assay certificates, etc, and that those who engage in the auction of works of fine arts or other business related to works of fine arts without permission shall, by Law,be warned, have their illegal earnings confiscated, their businees suspended and their cultural business licence revobed, or be fined two to five times the ammmount of their illegal earnings, depending on the circumstances, by the departments in charge of cultural administration. There are obvious conflicts between the Auction Law and the Measures, as the implementation procedures alone are concerned, not to mention the question whether the departments in charge of cultural administration possess the power of this kind of penalty or not.（35） Another similar legal conflict is worth mentioning. （36）The Measures for the Administration of the Business of works of Fine Arts makes it clear that dealing in counterfeited works of fine arts is forbidden and the department for cultural administration has the power to apply sanctions to those involved in it. But the copyright Law stipulates that the departments for the administration of copyright has the power to apply sanctions to those who produce or sell works of fine arts where the signature of an artist is counterfeited. In practice, the problem has often arisen which department has the power to administer it where counterfeited works of fine arts are found.（37）
Another defect in the Measures for the Administration of the Business of works of Fine Arts is that it regulates only financially supported competitions, exhibitions, sales exhibitions of works of fine arts. This stipulation is very peculiar, because it seems that business or services in works of fine arts performed at one’s own expenses shall not be bound by the Measures. Yet exhibitions held on one’s own expenses may surpass “financially supported”exhibitions in scale, volume and effect.
Section II Art Law Experiences
A. Three Women Models v. the Central Art College of China
Anyone intending to comment on China’s Art Law in the 1990s will not fail to give sufficient attention to the lawsuit（38） brought by two women models for infringement on their portraiture rights, against the sponsor of the GreatExhibition of Nudes Oil Paintings, which took place at the end of the 1980’s - January, 1989 to be exact. This lawsuit has lasted for nearly eight years and has not yet reached its final conclusion. However, the great shock to the traditional Chinese artistic sensibilities caused by this exhibition combined with the new sense of civil rights aroused by the three women’s acts in defending their portrature rights will have far-reaching consequences in Chinese society and law.
On December 22nd 1988, the Central Art College of China, China’s highest institution of learning in fine arts, held the Great Exhibition of Nudes Oil Paintings at the National Art Gallery of China. This was the first exhibition of paintings with nudes as the subject matter ever held in the Peoples’ Republic. The 120 pieces of works were painted by 28 oil painters of different ages. The entrance tickets, with a price ten times higher than usual, were sold out every day for eighteen days. The total number of visitors reached 210,000. On December 25th, fifteen thousand tickets were sold out in a single day, setting the highest record in the history of the National Art Gallery of China. Just as the exhibition was becoming a hot topic in the art world, on the exhibition’s fifth day, two women models involved in the paintings of the exhibition, either personally or accompanied by their husbands, came to the sponsor of the exhibition and requested that the works created from their images be taken down, alleging that their portraiture rights had been infringed. This request was refused by the sponsor（39）. In January, 1989, the two women models, through lawyers as their representatives, brought a lawsuit against the sponsor of the exhibition.
The plaintiffs’ representatives alleged that the sponsor had infringed the plaintiffs’ portraiture rights under the General Priciple of Civil Law, Article 100 which stated that:
Any citizen has portraiture right, nobody can use a portait of a citizen for commericial purpose without the permission of the citizen himself.
They argued that all the works exhibited as well as the albums of the paintings and the postcards published during the exhibition fell within the scope of the portraiture rights of the Article 100. Furthermore, this exhibition was apparently held for profit-making purposes, and not only for public benefit. Each ticket costs 2 RMB yuan and on the average fifteen thousand tickets were sold each day. Thus the total income for 18 days would add up to 540,000 RMB yuan, which did not include the additional earnings derived from the sales of albums of the paintings, postcards and slides, published during the exhibition. The central point was that neither the sponsor of the painting exhibition nor the publishers had obtained the consent of the models in advance, though the person in charge of the exhibition from the Central Art College of China said that there had never been a previous case in which consent must be obtained from the models. A model was paid 2.10 RMB yuan for each modelling session lasting one hour, which constituted only the remuneration for personal services, but not the equitable rewards derived from the profitable exhibition of the paintings and the related commercial exploitation of their portraiture rights.
Secondly, this case also involves the issue of privacy rights. As the paintings exhibited were realistic paintings of human bodies, not only the professional or commercial image of the models but also the privacy of their human bodies were exposed. The general rules for the use of models published and followed by the College clearly provided that they would endeavor to maintain the privacy of the models working at the College, but they failed to do so. The lawyer representing the plaintiffs pointed out emphatically that no one should achieve his purposes, whether in art or in any other domain, via a damage to the interests of other persons（40）.
The defendant in the instant case argued that - once out of the classroom - the connection between the painter and the model comes to an end, with the artworks coming into the possession and complete control of the painter; that it is quite normal and in accordance with international practice for painters to have their works exhibited or published; that the art of human bodies is a kind of activity that uses models as its source material, but is not a copy of the models themselves; that the models had been paid adequately for offering their images for hire, and therefore, the provision on the protection of portraiture rights in Article 100 of the General Provisions of the Civil Law is not applicable to this case（41）.
Confronted with this case and the novel legal issues therein, the court has been trying to find an answer on fundamental legal issues such as what constitutes a "portrait", what is the nature of "privacy" and how to handle the cross-relationship between copyright, portraiture right and privacy right. Therefore there have been extended delays. （42）
In the opionion of a western correspondant at that time, the key point to this case is the absence of an explicit contract. "The Chinese lack the sense of contract or agreement, and that’s why things like this come up one after another. If there had been a clear contract, there would not have been a lawsuit like this". （43）
In Feberary 13 of 1998, Beijing 2nd Intermediate People's Court gave the first decision:
The Central Art College's Rules for employing Models should be regarded as a kind of request for contract and based on this prerequest the three plaintiffs’ decision to work as models should be regarded as an acceptance of the said contract. Since a contract has been agreed upon by the two parties, both parties should exercise their rights andperform their duties stipulated by the contract and neither side could explain the contract in a broader sense for any reason. That is the basic rule of contract.Since, in consideration of the cultural and national conditions, the college promised to keep secret for the models in its Rules, it should fully fulfil the promised duty.It is neitherproper nor with any legal basis for the college to unilaterally explain by declaring that the promise of secrect did not include the exhibition and publication of the portrait-paintings and the body-paintings with the faces of models. It orgnized the exhibition and handed the paintings over to the publishing house.Those acts of the college broke its contracts with the three plaintiffs and so it should bear liabilities. The three plaintiffs’ claim that the defendent has infringed their portraiture rights should not been supported by the court because it is without adequate legal basis. So the court ,by Article 111 （44） of the General Provisions of the Civil Law made the decision that the college compensate each of the three plaintiffs 10000 RMB yuan (about 1200 USD), that other claims of the plaintiffs be rejected ,and that the fees of the suit be born by the college.（45）
Since both parties remained silent 15 days after the decision was made, the decision has now come into force. The judges in this case in fact avoided the issue of portaiture right, simplly giving a decision in favor of the plaintiffs based on the reason that the defendant has broken the contract（46）. The result seems acceptable, but it is a pity that this case has not been accepted as a “leading case”（47）
In my opinion, contracts are surely important, but what is most important is the respect to human rights. There is no doubt that painters have the right to create and exhibit their works, but in exercising these rights, they should remember to show respect for the right of the model. What the College paid to the models was only the models’ remuneration for personal services. It did not include the payment for the use of the portraiture rights. The models’ consent should be obtained before any works with the models as the object of expression are put on exhibition. This right of the models is clearly stipulated by the General Provisions of the Civil Law which came into force on January 1,1987.（49）
It has been said that, in the last few years, the leaders in the fine arts circles have played the role of pioneer in the reform and reconstruction of literature and the arts（50）. The Three Women Models case has similarly stimulated people’s interest in the relationship between art andlaw, impelling artists to give serious consideration to legal issues related to their creative pursuits, and spurring legal workers to acquaint themselves with art practices, in order to deal with copyright and portraiture rights issues as in the present case.
B.Wu Guangzhong v. Duyunxuan Gallery, et.al
Painter Wu Guangzhong v. Shanghai-based Duoyunxuoan Gallery and Hong Kong-based Yongcheng Antique Auction Company is the first case ever tried by the Chinese court in which the defendant was sued according to the copyright law and held liable for auctioning works of fine art of which the authorship was forged. Only from the Copyright point of view, this case is very simple.
The plaintiff Wu Guangzhong alleged, that the joint defendants, the Shanghai-based Duoyunxuan Gallery and the Hong Kong-based Yongcheng Antigue Auction Company had imfringed his copyright and damaged both his reputotion and the sales of the works by jointly auctioning the painting entitled “The Portrait of Maozedong” with his name fraudulently used as the author. The plaintiff therefore filed a lawsuit at the court with a motion for an injunction of such infringing act of the defendants, the elimination of all the illegal consequences, and a public apology plus damages of HK$528,000.
The court held that any citizen in China enjoys the right to decide whether to have his identity revealed and his name indicated on his works and that this right to authorship entends to prevent and prohibit anyone from producing and selling a work which fraudulently uses his name as the author. There was enough proof to indicate that the author’s name of the painting in dispute “the Portrait of Mao Zedong” had not been signed by Wu Guangzhong himself, and therefore was forged. Auction is a special form of trade and auctioning paintings is a kind of sales of works of fine art. The two defendants insisted on putting up the work in dispute to auction for profits even when they had been informed of the objection raised by the plaintiff to the work and could notobtain conclusive evidence to prove that the work had been created or signed by the plaintiff. The defendants’ act therefore seriously infringed the copyright of the plaintiff in violation of the provisions of the copyright law. Based on these opinions the court rendered a decision for the plaintiff（51）.
The first question derived from this case is how to apply the copyright law. No doubt the decision made by the judge in this case according to Article 46(7) of the Copyright law is unquestionable（52）, but how to make an appropriate legal interpretation of this article has caused endless argument in the legal circles. Some hold the opinion that the object of a right is the prerequisite to the formation of the right, and copyrights come into being because works have been created; and that the forged work would have nothing to do with the person whose name has been frandulently used except for his name and therefore his copyright is not possiblly infringed. Others believe that, to identify the act of forging the signature of athors with a infringement on the copyright is consistent with the “practical need” to protect the author’s, not the ordingary citizen’s, reputation as well as the market price of the works of the person whose name has been frauculently used. I once wrote to express my agreement to the latter opinion（53） and further pointed out that it may be possible to examine this issue from the “moral interest” point of view. A expert once pointed out:“the personality right of a work is eligible for protection because of its connection with the work”（54）. The authr’s moral right includes not only the right to protect his economic interest. “Eeonomic right is unseparated from moral right”. For example, the value of a work by “a famous person” may be higher than that by a“non-famous person”, and the same work, if bearing the signature of a famous person, may earn a higher fee. There are some people who are paid to write articles for others who will have the articles published in their own names. “All these are examples of obtaining economic interests by giving up or transfering moral rights (the rights of signature and publicity)”（55）. Of course, this expert, by these examples, intends to show that it is unnecessary to specially establish a right called “moral right”. I’d like to emphasize that it is the authors, not the ordinary citizens, who, through their creative activities, have earned a kind of reputation interest, which is right under the protection of the copyright law.
From this point of view we may get a new understanding of the auther’s right to have his name respected, the right stipulated by Article 6 of the Copyright Law of France（56）. The French are wise enough to grant the author the general right to have his name repected, without giving any specific limitation on moral rights. Any act in violation of the provisions of the Law, including the act in violation of the provisions of the respect for the author’s name, falls witihin“the act of illegal production which constitutes a minor crime”（57）.The Law so stipulates wholly for the purpose of protecting the “interest” derived from the author’s creation of works（58）. The name respect right provided by the copyright Law of France belongs only to the author, which renders it different from the “name right” provided by the civil law.
In the past few years. in China’s legal practice, there have been several cases in which certain “interests” or “civil rights” derived from acts have been put under the protection of the Law. For example, in 1994, the Supreme Court, in its reply to the case of a TV programme guides dispute from Guangxi, asserted that TV pragramme guides are produced through complex professional and technical labour by TV stations, which therefore shall enjoy a certain civil right to their fruit of labour（59）, that this civil right enjoyed by TV stations should be put under the protecion of the law in consideration of the existing circumstances in China though TV pragramme guides, without the originality in the sense of copyright, are not eligible for protection under the copyright law.
In another case, Zhang Chang et al. v.Tianjin-based Clay Figurine Zhang Colour Madelling Workshop. Clay Figurine Zhang Handicraft Shop and Clay Figurine Zhang Statue Art Company, for the defendants’ infringement on the plaintiff’s name right, trademark right, copyright and reputation right ,the Tianjin Intermediate People’s Court at the first trial held that the plaintiff’s allegation that the defendants had infringed Zhang Mingshan’s name right by using “Clay Figurine Zhang” is in essence to claim that the designation “Clay Figurine Zhang” as a kind of interest should not be enjoyed by the defenants”（60）. The plaintiff’s claim was satisfied by the court.
Another question derived from the Wu Guangzhong v. Duoyungxuan Gallery et al. case is how to determine the nature of auction and the legal liability that may be shouldered by the auctioneers. In the trial of this case, the court held that auction is a special kind of trading completed by means of bidding and therefore is a kind of profit-making activities. The relationship between the auctioneer and the consignor is of commitment, not of representation, because the auctioneer is not engaging in the auction activities in the consignor’s name; neither is it a kind of mediation because the auctioneer is doing business directly with the buyer instead of playing the role of a mediator. The act of the auctioneer is a kind of commission, and the auctioneer should be held responsible for the legal consequences arising from his act（61）.
One more thing worth mentioning is that the judge in this case accepted the expert conclusion, made by the Public Security Department （62）and submitted by the plaintiff, on the falseness of the signature on the work. After the plaintiff testified that the signature on the work was not made by himself, the burden of proof was transfered to the defandant（63）. But the defandant failed to adduce enough evidence to testify that the work had been created by the plaintiff. The judge, therefore, concluded that the signature on the work was not made by the plaintiff and the work was identified as a work of fine arts with the plarintiff’s name fraudulently used as its author.
C. Wu Zuoren v. Tianming Fine Arts Printing Co. Ltd et. al
Afte the Spring Festival in 1995, Painter Wu Zueren’s family found in the market a wall calendary for 1995 with the title “Ink Mark”, in which were two paintings entitled “Gold-fish” and “Panda”, both with Wu Zuoren’s signatures on them. The painter then started to collect these calendars and at the same time contacted his lawyer.
In July, through an advertisement in a newspaper, Wu learnced that a large 1996 Calendary Exhibiton was to be held in Shenzhen. He then asked someone to go to the Exhibiton to find it out.
As was expected, “Ink Mark” was there. Confronted with such a disgusting infringement act as well as the large number of cases of infringement on artists’ lawful rights and interests throughout the whole country, Mr. Wu, unable to hold back his anger any longer, decided to fight against infringements by means of law, and formally commissioned two lawyers as his universal legal representatives. As Chairman of the Association of Chinese Artists and member of the standing committee of the 6th National People’s Congress, Wu Zuoren, who had participated in making the copyright law, now wanted to put it into force.
On November 15th, 1995, Wu Zuoren filed a lewsuit at the Second Intermediate People’s Court in Beijing against Shantou University Publishing House and Shenzhen-based Tianming Fine Arts Printing Co. Ltd with a motion for an injunction of such infringement act of the defendants, destrudion of the infringing products, and a public apology plus economic and spiritual damages of 600,000 RMB yuan. Submitted together with the plaint to the court was an application for evidence and property preservations, as a guarrantee（64） for which Mr. Wu offered two of his best traditonal Chinese paintings__“Walking on the Deserts” and “ Double Ducks”, which might as well be regarded as a demonstration of M.r Wu’s determination.
The court, after a panel discussion, rendered a civil decision approving the plaintiff’s application for evidence and property preservations, and sent their men to Shantow and Shenzhen to take juristic action on the defendants. After being educated with knowledge of law, the defendants fully recognized their acts as on infringement on Mr. Wu’s copyright, made a formal apalogy and expressed their wish to compromise. Mr. Wu agreed to wind up the case through the mediation of the court on the basis of finding out the facts.
After this case, the judge made a comment on it, saying, “Mr. Wu, at the age of nearly 90 , is truly respectable for his courage to protect his lawful rights and to safeguard the intellectual property rights. Mr. Wu’s act shows he is a citizen with very strong sense of law. The degree of attention the citizens pay to their own rights and the lawful protection of these rights is an indicatiion of the degree of a nation’s cvilization and progress. This case signifies that a mature and civilized society is taking form in China”（65）.
D. Huang Ming v. the Association of Chinese Artists
The oil painting “Three Chairs” jointly created by young painter Huang Ming and his wife Dong Chunlei from Hangzhou was chosen to be exhibited at “the Eighth National Exhibition of Fine Arts “held by the Association of Chinese Artists in 1994. Both before and after the exhibition, through the Association of Artists in Zhejiang provinec, Huang Ming had required the Association of Chinese Artists to return his original copy at the end of the exhibition, and even explicitly expressed his disagreement to have his work sent abroad for exhibition.
The Associotion of Chinese Artists, however, declaring they would abide by “the Rules for the Implementation of the Eighth National Exhibition of Fine Arts”, refused to return it and later this work was taken out of mainland China and placed on exhibition in Hong Kong, Taiwan and Macao. In June, 1995, the irritated Huang Ming filed a lawsuit against the Association at the court.
The defendant argued that, as the host unit for the Eighth National Exhibition of Fine Arts was the Organizing Committer for the Eighth National Exhibition of Fine Arts, the Association was not the legal subject and neither did Huang Ming, as one of the co-operative authors, enjoy the full status of a legal subject, and that, in additon, the Rules for the Implementation of the Eighth National Exhibition of Fine Arts provided that the author of the prize-winning works should agree to have their works sent abroad for exhibition.
After the trial, the court held that Huang Ming, as one of the authors of the oil painting “Three Chairs” had both the right to protect his own lawful rights and interests when his copyright was infringed, and the right to file a lawsuit in his own name; that the position held by the Association of Chinese Artists that Huang Ming did not enjoy the status of a legal subjedt just becauste he was only one of the authors was without merit; and that the Association of Chinese Artists, who without the consent of the author, sent Huang Ming’s work to Hong Kong and placed it on the exhibition held by the Association itself, was the right defendant in this case.
In regard of the issue whether the Association of Chinese Artists has the right to send Huang Ming’s work abroad for exhibition, “the Rule” provides that only the authors of those works which have won the prizes should agree to have their works sent abroad for exhibition. But they awarded Huang Ming only a certificate of admission for exhibition, not a certificate of prize. The right of exhibition, as an important part of the copynight, may not be exercised by any person or any organization for any reason without the consent of the copyright owner. On Deccmber 24th, 1996, the Beijing Second Intermediate People’s Court pronounced openly that the Association of Chinese Artists had constituted intentional infringement on Huang Ming’s copyright and therefore, according to the Geveral Provisons of the Civil Law and the Copyright Law, announced the decision as follows:
“The Association of Chinese Artists shall, within one month after this decision becomes offective, make a public apology to Huang Ming in a newspaper distributed throughout China. The content of the apology should be examined and approved by this court in advance;
The Association of Chinese Artists shall, within one month after this decision becomes effective, pay 12000 RMB yuan compensation to Huang Ming”.（66）
The Association of Chinese Artists appealed to the Beijing High People’s Court. The latter tried the case openly and made a final judgemcnt on July 10th, 1997, rejecting the appeal and affirming the original judgement.（67）
The judge of the first instance, when interviewded, after the trial, commented that the infringement on copyrights is not limited to plagiarization which is, of course, hated by everyone and easy to recognize. Due to some customs and administrative causes, some usual practice does not comport with the Copyright law in force. The right of exhibition involved in this case is, in a strict sense, a part of the copyright granted to the author by law. In the past, however, the only way for a painter to become famous was through the Association of Chinese Artists. The fact that your works were exhibited would mean your works had got to a certain level. The situation then was quite similar to what singers nowadays are placed in. If singers want to be famous today, they must take part in the Spring Festival Evening Party. After a long time, a kind of custom has come into being that the emphasis is placed only on the right of one party, as is shown in the documents issued by the Association of Chinese Artists. However, in a civil act, it is fair for both parties to enjoy equal rights and assume equal duties. There is no doubt, as the Association of Chinese Artists has been emphasizing, that theirs is a state-grade, non-profit-making exhibition. But it is only one side of the issue. On the other side, the citizens’ rights in China cannot be infringed by anyone for any reason (except when the interest of the state is involved).（68）
Section III Art Law Studies
A. The Beginning
Strictly speaking, the study of art law in China started at the beginnning of the 1990s, and is closely connected with Mr. Wu Zuoren, late Chairman of the Association of Chinese Artists. “ like any other authors, artists enjoy the sacred and inviolable right to their creations”, said Mr Wu at a symposium held soon after the copyright law was promulgated in 1990（69）. That day, Mr Wu, 82 years old, went to the symposium in spite of ill health. He appealed for strengthening the legal system and protecting the legitimate rights and interests of artists. “The circles of fine arts in China are greatly encouraged when this law (referring to the Copyright Law of the People’s Republic of China) is finally promulgated after 11 years. I myself feel very happy and fully uphold it. As a member of the standing committee of the sixth National People’s Congress, I was fortunate enough to participate in the study and the drafting of this Law. The birth of this law is the result of a great deal of investigation, research, deliberation and discussion, which shows how important this law is.”
While talking about the various infringement acts on the rights and interests of artists, including counterfeiting of paintings, he said in a raised voice and an agitated tone, “For many years, protection has not been available for the rights and interests of artists, and as a result, serious infringement acts on the rights and interests of artists, such as the connterfeiting of paintings, have emerged again and again. Recently, this kind of infringement has been very active and sometimes even rampant. It is indicated that there are some gangs specializing in forging paintings in an organized and well planned way in Beijing as well as in other provinces. Their acts have not only infinged the copyright of our painters and damaged their reputation, but also ruined the artistic reputation of Chinese paintings, I do hope, with the promulgation of the Copyright Law, departments for the administration of copyright and for justice and other related departments will pay sufficient attention to such illegal activities and inflict severe punishments on them”. Mr. Wu’s forceful remarks, clear-cut on what to love and what to hate, visibly moved everyone present.
In view of those dealers who made profits by purchasing the original works of fine arts from artists for very low prices and then selling them out for high prices and as a result damaged the rights and interests of the artists, Mr. Wu, in the name of a painter, raised the isscce of Droit de Suite（70）, hoping to start a comprehensive research on this right. Mr. Wu was the first person in the circles of art in China to advance an explicit suggestion of this right.
After this symposium a research on “the protection of the copyright of artists” funded by the Wu Zuoren International Foundation of Fine arts named after Mr. Wu, was started. In April, 1992, a book entitled “Protection of Artists’ Copyright”（71） embodying the results of this research was completed under the direction of Zhou Lin. Art critic Li Song , in a book review （72）wrote,“ This is a short and readable book, which offers a lucid and incisive explanation on the copyright of fine art in a simple, plain but profound language. The legal terms are interpreted with lively and concrete cases, through comparisons between right and wrong, or by penetrating and clarifying analysises. It well combines the spirit of the legal terms with the author’s opinions”. Mr Li believes that there had been no works on the study of the copyright of fine art either in mainland China or in Taiwan or in Hong Kong and that the publication of the Protection of Artists’ Copyringht was a preliminary but gratifying start in this area. We have been pushed on to the world tide of cultural development and with the progress in the undertakings of fine arts, a profound study of art law and a lot of experts devoted to it will be in great need. As in some foreign countries courses in art law should be offered in fine art universities or colleges so that every artist knows what their rights and interests are and how they can protect them by law.
B. Two Meetings
Ever since the promugation of the copyright law of the People’s Republic of China, the issue of protecting the rights and interests of artists has gradually aroused the attention of both law and art circles. Experts and scholars in the two branches of learning, who had few contacts with each other in the past, now have come together.
On December 11th, 1990, the Association of Chinese Artists, Wu Zuoren International Foundation of Fine Arts, the Copyright Society of China and Legal Daily jointly held a symposium（73）, inviting the celebrities in the circles of art and law in the capital of China, to have a discussion on the Copyright Law and to offer their opinions on the implementation of those provisions in the Copyright Law which concern the copyright of fine arts. Present at the symposium were more than 20 persons, including artists, critics from the Association of Chinese Artists, the Central Academy of Fine Arts and the magazine “Fine Arts”, officials from the National Copyright Administration and the Bureau of Legality under the state council, experts from the Law Institute of China Academy of social sciences and the Legal Daily, and representative from the Fine Art Gallery of China, Rongbaozhai Art Gallery, and other units.
All the participants at the symposium agreed that the Copyright Law is an important law intended to protect the rights and interests of the authors, to bring the initiative of intellectuals into full play and to assist in building up the spiritual and material civilization with socialist characteristics. They believed that the few special provisions in the Copyright Law, meant to protect the copyright of artists, would be very forceful in the protection of artists’ rights and interests, but they still hoped that the relevant legal departments should formulate and consistly improve necessary rules for the implementation of the Copyright Law before it formally came into force. In consideration of the various existing infringement acts on the copyright of artists, they advanced many important suggestions on such issues as the implementation of the Copyright Law and the effective protection of the rights and interests of artists. Based on the international practice in the protection of artists’ copyright and on the premise of adhering to the basic principles of the Copyright Law, they raised issues such as the artists’ Droit de Suite for the legislative body to consider while formulating rules for the implementation of the Copyright Law.
On June 30th, 1995, in order to deal with the frequent infringing acts on artists’ copyright in China, the Intellectual Property Teaching and Researching Center of the Chinese People’s Uniuersity and the Intellectual Property Center of China Academy of Social Sciences invited a few painters, art critics and lawyers to a seminar（74） in Beijing on the construction of legal system for China’s art markets. They had discussions on cases such as the auction of the work with the forged signature as Wu Guangzhong’s, Zhang Leping’s “Sanmao” copyright dispute, Zhong Guoquan V. Beijing Masses’ Art Gallery for the missing works, and Huang Ming V. the Association of Chinese Artists for the return of the exhibited works at the Eighth National Exhibition of Fine Arts . They not only had a profound discussion and analysis of the existing law intended to protect the rights and interests of artists, but also put forward many beneficial proposals on the construction of legal systems for China’s art markets.
The case of Huang Ming V. the Association of Chinese Artists aroused great interests among the participants at the seminar, because this was the first case in which an artist had ever sued the Association of Chinese Artists. Some lawyers present at the seminar hald that, the right of exhibition is the artists’ exclusive right to their works and therefore is under the protection of the Copyright Law of China. By the law, nobody is allowed to use this right without the consent or authorization of the owner; otherwise, it will constitute an infringement. Any unit who will take paintings abroad for exhibition for any reason should obtain the authorization of and enter into a contract with the artist.
A warm discussion also took place at the seminar on how to give full scope to the Associatwn of Chinese Artists in the art markets, how to coordinate the relationship between individual artist and the Association of Chinese Artists, and how to protect artists’ rights and interests by law.
C. Teaching of Art Law
The marriage of art and law also aroused the attention of Chinese art universities or colleges. Between September and October, 1994, on the invitation of the department of art history of the Central Academy of Fine Arts, Zhou Lin from the Intellectual Property Center of China Academy of Social Sciences gave a four-week course of lectures on art law, which was the first of its kind ever offered in China. These lectures focused on the protection of artists’ intellectual property rights, law issues related to artists’ activities in art markets, the basic theory of contract law, and the relationship between artistic creation and freedom of expression, etc, were warmly received by both teachers and students of this department, which has now decided again to invite Zhou Lin to conduct another courses on art-law-related subjects starting from September, 1997, and even to fit this course into its entire curriculum.
In September, 1995, on the invitation of another famous university - China Academy of Fine Arts, Zhou Lin gave a lecture on art law. He focused this lecture on two issues__the protection of artists’ rights and interests, and the relationship between artists and art dealers. He also answered many questions brought forth by the students and teachers present at the lecture.
In the lectures mentioned above, Zhou Lin first introduced the concept and content of art law and then pointed out that the study of art law is necessary in the building of China’s art markets. Under the system of planned economy, artworks were only a kind of subsidiary or a kind of tool and therefore art law was of no use. Nowardays, artworks are no longer tools but a kind of commodity in nature. Once artworks are put into the markets, there should be some definite rules to regulate them. Art markets are not made up of bugers and sellers only: they also need the participation of critics, appraisers, agents and lawyers. The activities of all these participants should be placed on the track of legal systems. Cheating and illegally dominating markets are not allowed. Under the system of market economy, the fundamental aim of law is to protect the freedom of market participants to the largest extent. The freedom of expression should cast away the high-handed power and the fetters of money（75）. The freedom of expression is provided in almost all the constitutions of the countries ruled by law. However, the freedom of expression is not unlimited,it is bound by the law. By law, expressions of slanders, subversion of the government and obscenity are forbidden. But there should be a criterion by which to judge what is forbidden by law, the value and the legitimacy of an artwork will not, as it often is, be judged by a certain person according to his own taste（76）. Artists should strengthen their own sense of protecting themselves by law, and make good use of laws against any infringement acts.
Up to now, courses in art law have never been established in any law schools in China（77） and the related contents, such as intellectual property law, contract law, tax law, cultural relics law, and auction law are taught in other courses comparatively, art universities or colleges obviously take the lead in the establishment of courses in art law. I believe that, with the progress in China’s construction of its legal system, with the accumulation of legal experiences in art law, and with the changes in the traditional teaching ideology of law, art law will sooner or later be brought into the curriculum of law schools in China. A lot of lawyers who are acquainted with both art and law and are willing to devote themselues to defending the purity and sacredness of art are urgently needed in the building of China’s art markets.
D. The Publications of Art Law
At the beginning of the 1990th, after ten years of economic reform, China with its own development form and speed, became the focus of world attention. Reople began to take note of China’s art and culture which can, in a certain extent, reflect the spirit, phylosophical thinking, moral concepts, aesthentic standards of the Chinese nation（78）. While the Chinese artists were trying to draw their inspiration of expressions and materials from the western art with a kind of desire and freedom which they had never had before, the modern Chinese art in various immature forms entered into the circulation of world “art industy” through various channels（79）. Some keen, enthusiastic, energetic art critics caught this tide and started several publications, such as the Art Market（80） series, the Art Gallary（81） magazine, etc. They focused their attention on the construction of China’s art markets as well as on China’s contemporarhy art, in the belief that the development of contemporary art is unseparated from the construction of art markets. In the first volume of Art Market published in 1991, the editor pointed out that, in spite of the fact that China is not short of outstanding artists or excellent artworks, the corresponding art markets have not been established in China for historical reasons. As a result, the investors, collectors, and critics of artworks as well as the administrators of art organs are now confronted with a new problem - how to establish in China an art market which is adapted to both the world art markets and China’s actual conditions. The first article in this volume raised the two issues “the standardization of art markets” and “art law”（82）.
Question: Then, what do you believe is the key point in the establishment and development of China’s art markets?
Answer:The standardization, of course. Standardization is the first premise to the exchange on the basis of equality between China’s art markets and world art markets. First of all, there should be an “art law”. The reason why the U.S. has become another world art centre next to Paris of France is mainly because, besides other elements, the art law wcich has played an important role there. An art market without art law is unimaginable.（83）
Nearly in every volume of the series of nine books published one after another, there was an article concerning the issue of art and law. For example, starting from the first volume, serialized were parts of the book “How to Sell Your Artworks”（84） written by an American expert in art market, and translated by Wu Sun and others; the third volume explains how the U.S. through its Visual Artist Right Act, provides sufficient protection to the artists’ moral rights; In olume 5 and volume 6 was published in installments the article.“ Art, Money and the Law” translated by Li Fanglin. The nineth volume carries the article “On Art Agency”, etc. All these articles, although not a systematic study of art law, did impart a rudimentary knowledge of art law. The executive editor of this series clearly pointed out in a speech that, athough the buying and selling of scripts and paintings has been more and more frequent and active in China, there has, in a strict sense, never been an art gallery which conforms to the mode of management and the principle of operation in the world art markets, that is to say, there has never been an internationally accepted art market in a broad sense. This is because there is neither division of labour nor legal guarantee in the market. There are art laws in foreign countries, but there is none in China. The Chinese legislative bodies have a lot of legislative work to do, including the legislation of art law. Art as a commodity is a very special intellectual product, and therefore, the formation of China’s own art law must be based on a thorough research of the characteristies of both art and art markets. The absence of art law will result in the absence of order, affect the formation of art market and even make it possible for “black markets” to come stealthily into being.（82）
Following the series “Art Market”, the magazine “Art Gallery’, which is intended to introduce contemporary Chinese art, made a comprehensive change in its contents starting from Volume 47, and for the first time in a Chinese media set up an “Art and Law “ column, inviting Zhou Lin as the column host. Starting from Volume 47, it carried in succession such articles as “what is art law”?“droid de suite - a special right for artists”,“the legal liability for the auction of forged paintings”,“how to handle the relationship between artists and their agents”?“art dealers and art markets”,“authentication: expert opinion and liability”, etc（86）. These articles aroused interests of more peaple in the study of art law.
In fact, the first translation which systematically introduced art law is the book “Art Law in a Nutshell” （87）written by professor Leonard D. DuBoff, a famous American expert in art law, translated by Zhou Lin et al, and published in April, 1995. In the preface to the first edition of this book former Chairman of theAmerican National Endowment for the Arts Livingston Biddle points out:
We are told of the plundering of art, from the epics of Homer to Nomer to Nazi Germany and later, of desecreations of art... and in contrast, of art as the exceptional ambassador of good will in international exchange. Our minds inquire, why not more of this exchange, how can it be facilitated, what are the legal impediments that need to be removed?
We are given insights into great thefts of art, clever forgeries, and struggles to preserve art of integral value to a given country. We are told of art as a form of protest and how freedom of expression is involved, the safeguards of freedom, the anomalies, the inconsistencies, how state and federal laws can differ, and how the basic concepts of the founding fathers can become complex in legal interpretation.
There are important passages, which deal with the authentication of works of art for potential purchasers and appraisers. There is a valuable discussion on protective warranties and how to obtain and implement them.
We learn about proper insurance procedures and about tax laws as they apply to the arts. Income taxes. Gift taxes. Estate taxes. How the heirs of Alexander Calder’s estate had to deal with heavy tax burdens. How such burdens might have been avoided, through careful planning - and knowledge.
We learn how certain artists can greatly gain through incorporation - and how others are not so benefited. We learn about alterntives, and about the technicalities of estate planning for all involved in the arts. We learn the legal protections for artists and works of art（88）.
Biddle’s remarks quoted above are not only a summary of the main contents of the book “Art Law in a Nutshell”, but also a summary of the main contents of art law as a branch of learning.
The author of the book believes: his book translated and published in China signifies another milestone in the art law field. It reveals such a fact that art law goes to the world. Art plays an important role in social lifes which is recognized by all countries including China.（89）
Before coming to the end of this artiele, we perhaps have got a basic idea of the existing state of the art law in China. Our preliminary conclusion is that art law has come to China not out of thin air, but out of the practical need of China’s art market construction. What we should be doing now is, on the basis of a serious study of the combination of art and law, to privide useful opinions and suggestions to the legislation and implementation of art law so as to make a greater contribution to the art prosperity and modernization drive of China.
※This article is the preface of Art Law Handbook chiefly edited by Zhou Lin.
※※The author here should give his thanks to Pro.Zheng Chengsi,Patrick O’KEEFE and Mr. Peter Lee, for their comments on this article. Many thanks also to Mr. Jerome for his excellentan work in English edit.
(1)The start point of contemperary Chinese art history in this article is 1949.See Wang Hongjian and Yuan Baolin, An Introduction of Fine Arts, (Higher Education Publishing House, 1994) pp.20～521.
（2）This “slongon”stressed at 《A talk at Yanan Art forum》. In the relationship between art and politicle, “the history gave us veluable experiences and bitter teaches. See Wang Hongjian and Yuan Baolin, An Introduction of Fine Arts, （Higher Education Publishing House, 1994）pp.520～545.
(3)When the “tool theory” was rejected, the artistic creation was relatively free, and participating in exhititions was no longer the only impetus to creation, artists even began to feel puzzled: what to do with the works? See articles published around 1985.
(4)Marked by a famours painting “Dr. Gachet”by Van Gogh sold to a Japanese art dealer Hideto Kobayashi for US$ 82.5 million, the sales price in the world art markets got to the peak, and before long began to fall sharply.
(5)In May, 1991, the National Cultural Conference decided that auction markets of artworks might be established in China, and the first auction of artworks took place in Xi’an on September 8th,1992.
(6)The term “art law” has been used in China for quite a long time, but it has never been given a proper definition. Even in the United States where art law is most developed, with many monographs on art law published in the last 30 years or so, it is hard to find an accurate definition of art law. The Swiss Art Law Centre, which was set up in 1990, believes that art law concerns those legal issues involved in the creation, display, expression, reproduction and sales of artworks and cultural properties, including the management and administration of taxation and customs, copyright, moral right, the freedom of artistic expression, exchange and loan of artworks for public exhibition, authentication, sale conditions, insurance, and issues of civil, administrative and criminal laws related to acts of theft, illegal import and forgery.
(7)An artist is such a person who is very active in the art market, and also is easy to be hurt. The key point of a flourishing art market lays to the protection of their rights.
(8)See Constitution of the People’s Republic of China(1954), Article 87 and Article 95.
(9)See the Copyright Law of the People’s Republic of China, Article 3 and article 31.
(10)See the Berne Convention, Article 4.
(11)See the Rules for the Implementation of the Copyright Law. Article 4(7).
(12)See International Copyright Treaties Implementing Rules, Actidle 6.
(13)See the Copyright Law, Article 11.
(15)See the Copyright Law, Article 17.
(16)See the Copyright Law, Article 18.
(17)For example, stipulating that the owner of the orighinal copy of a work, who has obtained it through purchasing, shall not use it to reduce the artist’s fame.
(18)Making use of the Copyright Laws of other countries for reference, we may add the “right to access works” to the Copyright Law .
(19)See the Copyright Law, Article 22.
(20)Ibid. Article 46(7).
(21)As early as 1992, Mr.Bogsch, the Director General of the World Intellectual Property Organization, spoke highly of China’s legal system concerning intellectual properties. See Twenty Years of Co-operation Between China and the World Intellectual Property Organization.
(22)See Zhang Peitian, A Guide to Auction Law, China University of Political and legal Sciences Publishing House, p.6.
(23)See Leonard D. DuBoff, Art Law In a Nutshell, Translated by Zhou Lin et. al, China Social Science Publishing House,1995, p.34.
(24)See Sun Lihai and Zhao Jie, Pandects of Auction Law, China Commerce Publishing House, 1997, pp.28.
(25)The Auction Law, Article 3.
(26)Ibid. Article 4.
（27）Article 22 of Auction Law stipulate, auctioneer should not paticipate its own auction as a bidder, and he should not also commission others to bid for him. This article arouses many disputies. In “tele-bid”condition a d bidder often commision auctioneer to bid for him, it seems this possibility is avoided by Article 22.
(28)Ibid. Article 8.
(29)See Li Xiaodong, Cultural Relics: Regulations and Administration, Beijing Yanshan Publishing House, 1992, p.21.
(30)The Protection of the ancient artistic works or cultural relics is a main content in art law. Any cultural relics of significant historical, artistic or scientific value shall be prohibited to take out of the country. Cultural relics in private collections may be purchased by units designated by the departartments for cultural administration.
(31)See note (24), p.50.
(33)In some countries, such as the U.S.A, the laws stipulate that such “statement of exemption” should be printed at a noticable place in the auction catalogue and indicated in the receipt.
(34)See note (24), p.40
(35)This regulation does not provide any legal basis for any administrative department to exercise the penalty right.
(36)For example, in the “ ‘97 Pacific Jinling Auction of Public Collection” held by the Pacific International Auction Company at the Nanjing-based Jinling Hotel on March 22nd, 1997, there emerged the question “To whom the auction should be reported”. See Beijing Youth Dil, March 29th, 1997, p.3.
(37)See “Nanjing Auction of Scripts and Paintings Miscarried and Investigated”, Beijing Youth Daily, January 1st, 1997, p.3.
(38)For more information about this lawsuit, see A Nude Model Disturbance, Ningxia People’s Publishing House, May, 1989.
(39)See “The Models’ Lawsuit and the Legal Protection of Portraiture Right”, News Publishing Daily, February 15th, 1989. quoted in A Nude Model Disturbance, pp. 15-16.
(40)China Youth Daily, January 5th, 1989, quoted in A Nued Model Disturbance, pp.9-11.
(41)See “The Models’ Lawsuit and the Legal Protection of Portraiture Right”, quoted in A Nude Model Disturbance.
(42)It is learned that this ordinary civil dispute was once put under the care of the Supreme People’s Court, and opinions on the conflict between the author’s copyright and the model’s portraiture right has been solicited from experts of the World Intellectual Property Organization. But no conclusion has been drawn on this case until this article was completed in the end of 1997.
（44)This article stipulates, any party performs the contract not according to the condition in the contract, the other party has the right to ask for remedies and compensations.
（45）See Written Judgement of Beijing Second Intermediate People’s Court,（1989）Zhongminzi No.1076.
（46）If only liability of breaking contract, why the case lasted eight years? Other reasons behind should be known.
（47）There is no case report system in China, and no “leading case”, but a “good”case has an influence towards later cases. A “saying”of the portaiture right might have been hoped from this case.
(48)At that time, the College paid 1.6 RMB yuan an hour to a clothed model and 2.4 RMB yuan an hour to a nude model. It is not clarified, however, whether the remuneration for the use of the portrait was included or not.
(49)Article 100 of the General Provisions of the Civil Law, effective on January 1st, 1987, stipulates that all citizens enjoy the right of portraiture and nobody is allowed to use a citizen’s portrait for profit purposes without the consent of that citizen.
(50)Ge Pengren, “When Nude Models Came into the Palace of Art in China” in China Fine Arts, issue 1, 1989, quoted in A Nude Model Disturbance, p.3.
（51）See the Written Judgement of Shanghai People’s High Court, （1995）Hugaominzhong（zhi）zi No.48.
(52)The judge might as well have simply applied the concerning provisions of the Copyright Law to wind up this case.
(53)See Zhou Lin, “Wu Guangzhong v. Duoyunxuan Gallery, et. al”, in Inteclectual Property Studies, No.2, China Fangzheng Publishing House, December,1996, pp. 158-168.
(54)Xie Huaishi, “On Copyright”, in Selected Works in Copyright Studies, Commercial Press, 1995, p.59.
(56)Article 6 of the Copyright Law of France stipusates that the author enjoys the right to have his name, status and works respected.
(57)See Article 71 of the Copyright Law of France.
(58)Similar “interests”, such as a person’s portrait, name, voice, a part of the body, etc. with some commercial value, all fall within the “right of publicity” in the U.S.A.
(59)This tetephone answer has not been made known to the public.
(60) Quoted in the Written Judgenent by Tianjin Intermediate People’s Court (1995) Zhongzhichuzi No.1.
(61)See Lui Guoqiang, “A study of Several Legal Issues Involved in the Portrait of Mao Zedong Case” in Intellectual Property Studies, No.3, China Fangzheng Publishing House, May, 1997, p.152. An inspiration drawn from this case is that the auctioneer, through “a statement of exemption”, may exempt himself from liabilities, to the purchaser, incurred from the sale of a forged painting, but he cannot be exempted from the liabilities to the person whose name has been fraudulently used as the author of the painting. Of course, the auctioneer may, by the contract they have signed, recover his losses from the seller who has forged the painting.
(62)The examination was carried out on a photograph of the work in dispute, rather than on the original copy.
(63)On the issue of the “burden of proof”, the Civil Procedure Law of China stipulates, “the person who makes the claim bears the burden of proof”. In this case, the plaintiff at least had proved that the name of the author was forged. The defendant would lose this lawsuit if he could not find an opposite proof to reverse this proof.
(64)According to the provisions of the Civil Procedure Law of China, the litigant who applies for property preservations should provide a property of the same value as a guarantee when the application is submitted.
(65)There is a detailed account of this case in China Reading Daily, April 24, 1996, p.5.
（66）Quoted in the Written Judgement by Beijing Second Intermediate People’s Court, （1995）, Erzhongzichuzi No.87.
(67)Quoted in the Written Judgement by Beijing People’s High Court, （1997）Gaozhongzi No.27.
(68)Kang Tong, “‘Chair’ Returned to the Owner”, in China Market Economy Daily, January 7, 1997, p.2.
(69)An account of this symposium and Wu Zuoren’s speech can be found in Legal Daily, October 3, 1990. p.3.
(70)“ Droit de Suite ”means the right of an artist or his heir to enjoy a share of the profits incurred from the resale of the original copy of his work. The purpose of establishing this right is to surport the artist’s creative activities or his heir’s life, and to eliminate or lessen the unfairness in the trading of artworks. This right is confirmed in the Berne Convention and protected in over 30 countries.
(71)Zhou Lin: Copyright Protection for Artists,Beijng Industrial University Publishing House, April, 1992.
(72)See Li Song’s article in Exchange of Fine Arts, vol.3, 1992, Wuzuoren International Foundation of Fine Arts, pp.4-6.
(73)There is a detaild account of this symposium in Legal Daily, December 17th, 1990, p.1.
(74)See articles in Chinese Industrial and Commercial Times, July 5th, 1995, p.2; Qiantang Evening, July 8th, 1995, p.4; and Beijing Legal Daily, July 16th, 1995, p.2.
（75）No great artistic works found during 1966～1976 since artists suffred from the politicle pressure and short comings.
(76)There isn’t an explicit criterion for contraband works in the laws of China, and this makes it unavoidable to judge a work depending on whether a certain person likes it or not. For example, in the course of choosing the excellent works during the Eighth National Exhibition of Fine Arts, the original plan of choosing the works worthy of gold, silver and bronze pries had to be cancelled just because some people in terfered with it with the excuse that there was “undesirable tendencies” in one of the works.
(77)Courses on art law have been established in many universities in the U.S.A, and special art law research institute have been set up in Britain, Switzerland, and Australia. Lawyers in China are tending towards being specialized and lawyers who are not well-trained in art law will find it difficult to deal with problems related to it. Therefore, it is truly urgent that courses on art law be established in law schools in China.
(78)See the Editor’s Note in Art Market, vol.1, Lingnan Fine Arts Publishing House, 1991.
(80)This series published from 1991 to 1992, with the co-operation of American Association of International Art Studies, consists of nine volumes altogether.
(81)The chief editor of this magazine is Yang Xiaoyan, and the publisher is Lingnan Fine Arts Publishing House.
(82)Art Market vol.1, Lingnan Fine Arts Publishing House, 1991, pp.2-3.
(83)Ibid. “Art and Money_Wang Guangyi’s Answers to the Editor’s Questions”.
(84)This book was published by Sichuan Fine Arts Publishing House in December, 1991.
(85)See Lui Peng, “Random Talk on Art Markets”, in Railway Teachers’ College Journal, vol.2, 1993, pp.38-41.
(86)These articles are written by the column host and other writers, including the world-famous experts in art law, Mr.P.J. O’KEEFE and Mr. L. D. DuBoff.
(87)This book was published by China Social Science Publishing House, in April, 1995.
(88)L. D. DuBoff, Art Law in a Nutsholl, 1st edition, West Publishing Company, 1984.
(89)See the Preface to the Chinese version of Art Law in a Nutshell.