Unauthorized use of donated works by art gallery constitutes infringement

Comment on Ren Zhigong and the case of infringement of copyright in Shaanxi Art Museum

[case number]

(2017) Shan 01 min Chu No. 52

[gist of the referee]

When questioning the identity of the copyright owner, evidence shall be provided to prove that, otherwise, the person who provides the negative film of the photographic work can be identified as the copyright owner; the photo records and letters can not be used as the basis for identifying the copyright owner alone; the donor, as the user of the work, has the duty of examination and attention when accepting the donation of the work, even with the consent of the donor; the donor has no permission The use of the work of the copyright owner in the exhibition activities and the books it compiles constitutes an infringement; one of the legal circumstances for determining the amount of damages is the subjective fault of the actor.

[brief introduction of the case]

Wang Ziyun is a famous Chinese art historian, art educator, painter and sculptor, and a pioneer of modern art education and art archaeology in China. Ren Zhigong is the husband of Wang Qiang, Prince Yun's eldest daughter. On March 9, 2016, Shaanxi Provincial Art Museum (hereinafter referred to as the Art Museum) signed a letter of intent for donation with Wang Qian, the second daughter of Prince Yun, and Wang Peng, the eldest son: Wang Qian and Wang Peng donated the film and photo of Prince Yun's art archaeological materials to the Art Museum, and donated the ownership and publishing right of the work. Wang Qian promised that the photo, negative film, CD-ROM and other materials were owned and held by him, and he donated the donation The source and authenticity of ownership guarantee its legitimacy. After paying the deposit and handing over the donation, the gallery has the right to carry out publicity, exhibition, reproduction, compilation and distribution, etc. After paying the donation bonus to Wang Qian, the Art Museum held the "Yunkai Huazang - Exhibition of Wang Ziyun's works and documents in Shaanxi Art Museum", which was composed of three volumes. According to the donation collection contract signed between the museum and Wang Qian and Wang Peng, Wang Qian and Wang Peng voluntarily donated historical materials of Wang Ziyun's art archaeological research activities to the museum, including 2652 negatives and 2354 photos, totaling 5006. Wang Qian and Wang Peng guarantee that these negatives and photos are legally owned by themselves according to the law, and that the donated negatives and photos are collected by Prince yunben before his life, and there is no forgery or forgery. The museum paid 2.2 million yuan to Wang Qian and Wang Peng as donations. The museum has the right of exhibition, copyright, assembly and network information dissemination after collecting the negative films and photos.

Ren Zhigong believes that the museum, without permission or signature, uses its works without permission and infringes its copyright, so he appealed to the court to order the museum to stop the infringement and apologize immediately. During the trial, Ren Zhigong submitted the records and letters of taking photos and other photos taken at the same time with the photos involved in the case, in order to prove that he is the copyright owner of the photos involved in the case. The art museum argued that Wang Qiang, as the representative of Prince cloud's children, recognized the exhibition when the exhibition was launched. When the donor donated the photos left by his father to the art museum, he did not agree on the signer of the donated photos, and the art museum legally owned the rights of exhibition and publication of the photos. The art museum, on behalf of the state, carried out a "rescue" collection of Wang Ziyun's historical documents, There is no fault. Request to dismiss Ren Zhigong's claim.

According to the trial of Xi'an Intermediate People's court, Ren Zhigong holds two negatives of Prince cloud portrait, which can be identified as the copyright owner of the two photos, and the remaining 16 negatives, which are not recognized as the copyright owner; without permission, the art museum uses two photos of Ren Zhigong in the exhibition and the book "Yunkai huacang" compiled by it, without signature, which is not enough Ren Zhigong shall stop the infringement and compensate for the loss in case of infringement of Ren Zhigong's copyright. Ren Zhigong requests the art gallery to publish a statement of apology in the people's daily, and does not support it because it fails to prove that the infringement of the art gallery has caused damage to its reputation. Therefore, it was decided that the art gallery should stop infringing on Ren Zhigong's copyright; the art gallery should compensate Ren Zhigong for the loss (including the reasonable cost to stop the infringement) of 3000 yuan; the rest of Ren Zhigong's claims should be rejected. After the sentence was pronounced, Ren Zhigong refused and appealed. After the trial of Shaanxi high court, the original judgment was upheld.

[judge's comments]

1、 On the recognition standard of the right holders of photographic works in the sense of copyright law

Photographic works refer to art works that record the image of objective objects on sensitive materials or other media with the aid of instruments, such as people's photos, landscape photos, etc. There are two ways to obtain copyright: registration and automatic. China's copyright law adopts the system of automatic acquisition of copyright. This Law stipulates that works of Chinese citizens, legal persons or other organizations, whether published or not, shall enjoy copyright in accordance with this law. The copyright owner is the person who enjoys the right to the work, including the original subject and the successor subject. The original subject of copyright is the person who creates the work, that is, the author enjoys the copyright based on his creative behavior. The successor subject of copyright refers to the person who obtains the copyright from the original subject of copyright by means of transference, inheritance, donation and other ways. China's copyright law stipulates that if there is no proof to the contrary, the citizen, legal person or other organization who signs the work shall be the author. In judicial practice, if there is no evidence to the contrary, the signature of the work and the copyright registration certificate can be used as the preliminary evidence to identify the copyright owner. Of course, the materials that can prove that the author actually created the work can also be used as evidence to prove the identity of the copyright owner, such as the manuscripts of literary works. For photographic works, the most direct evidence for determining the copyright owner is the signature on the works and the copyright registration certificate. Generally speaking, the collected and published photography works and the exhibition photography works have the author's signature. With the development of technology, more and more photographers sign their works in the way of adding the author's watermark to their works on the Internet and print. In addition, some photographers choose to register the copyright of their own photographic works to prove their identity as authors. In the absence of signature and copyright registration certificate, how to identify the author of a photographic work has become a difficulty in judicial practice. Similar to the manuscripts of literary works, the negative of a photographic work can be used as a proof of the creation process. In the absence of evidence to the contrary, the owner of the negative can be identified as the copyright owner of the photographic work. In this case, Ren Zhigong submitted two negatives of the photos and 18 photo taking records and letters as evidence to prove that he is the owner of the photos. The negatives of the two photos provided by Ren Zhigong can be identified as the copyright owner of the two photos. For the remaining 16 photos, because Ren Zhigong failed to provide evidence, he could not prove that he is the copyright owner.

2、 The duty of care of the donor in examining the copyright of the donated work

Duty of care refers to the duty of the subject of duty to act cautiously and carefully without causing damage to others. The duty of care requires the actor to take reasonable action or omission to eliminate the dangerous state when he has or should foresee that his act has violated the law and is about to cause damage to others. In the copyright law of our country, the users of works are required to "examine the duty of care" and "reasonable duty of care". As the user of the work, the donee shall have the obligation of examination when accepting the donation of the work. He shall carefully verify whether the donor enjoys the copyright of the donated work, so as to avoid the risk of infringement in the subsequent use. As far as photographic works are concerned, the donee may verify the copyright owner through signature, copyright registration certificate, negative film, etc. If it is not the original copyright owner, it is necessary to check the evidence of its subsequent copyright, such as transfer agreement, negative film, etc. In this case, in the process of accepting Wang Qian and Wang Peng's donation, Wang Qian and Wang Peng did issue a letter of commitment and declaration to the museum to ensure that the donation was legally held, but the holding of the donation did not equal to the corresponding copyright, and Wang Qian and Wang Peng did not submit the negatives of two photos in which Ren Zhigong enjoyed the copyright to the museum. The fault of the museum lies in The copyright owner of the photos involved in the case was not examined. Therefore, the museum used two photos of Ren Zhigong in the exhibition and the book "Yunkai huacang", which did not fulfill the duty of examination and attention.

3、 The subjective fault of the actor is the legal circumstance considering the amount of compensation

Unless otherwise provided by law, unauthorized use of another's work constitutes an infringement of copyright. Generally speaking, the subjective fault of the actor does not affect the determination of his tort, but it will affect the determination of the amount of damages. Theoretically speaking, intellectual property infringement is a kind of absolute right damage, so we should recognize the claim of omission. There are two conditions for the establishment of this kind of right of claim: one is the objective existence of the illegal tort; the other is the real danger of the right being infringed, or the danger of repeated or continuous infringement by the same aggressor to the same obligee. The conditions for the establishment of such a claim do not consider the subjective elements of the actor. For the court, as long as the copyright owner proves that the defendant has committed an illegal act, the claim of omission should be supported. Therefore, whether the art gallery has subjective fault and whether it represents the national collection of works is not the judgment standard of whether it constitutes infringement, only to be considered in the judgment of tort liability and compensation amount. The principle of compensation for tort damages depends on the purpose of compensation for tort damages and the conditions for its realization. As the general purpose of tort compensation is to compensate the loss of the victim, and the social purpose is to restrain the aggressor, the principle of full compensation becomes the basic principle of tort compensation. Compensation for intellectual property damage also follows this principle, that is, the infringer should compensate for all losses caused to the infringed due to his intellectual property infringement. There is also a certain basis or principle of liability fixation in the compensation for intellectual property infringement. Most foreign intellectual property legislation stipulates that whether there is fault is not the premise of identifying the infringement, but the premise of exemption or reduction of liability for compensation. China's intellectual property law also has similar provisions, that is, the subjective fault of the actor as "the circumstances of the tort", will affect the amount of compensation to the obligee. The guidelines for the trial of copyright infringement cases issued by Beijing Higher People's court also pointed out that: in case of malicious infringement, the plaintiff's claim can be supported within the legal compensation limit or the compensation amount can be determined from a high level. In this case, the museum took the responsibility of compensation for the infringement of two photos, which also reflected the court's consideration of the museum's subjective fault.