[IP CHINA] Xu Beihong painting and the NFT copyright dispute

Recently, an NFT copyright dispute of Xu Beihong’s 8 most representative works has led to discussion among China.

Xu is a very famous artist in the history of modern China: he died on September 26, 1953, aged 58, but his stallion drawings have been passed down, and original copies of these are worth a fortune.

On May 29, 2022, the operator of the Xu Beihong Museum of Art issued a statement alleging that the NFT collection of Xu provided for sale on the “Huanhe” platform was not authorized. At the same time, the Xu Beihong Museum of Art claimed that some of the NFT works sold by Huanhe were produced by forgeries, and publicly commented that only the NFT collections on platforms such as “Shu Zi Mao” and “Jing Tan” had received their authorization.

The focus of the dispute proceedings is whether the platform constitutes copyright infringement by selling the NFT collection of an artist who has been dead for more than 50 years. To give you a clear hint, we can start from the following questions:

Who owns the copyright to these disputed works?

According to Chinese copyright law, the protection period for the ownership of a work is 50 years after the death of the author. Meanwhile, the protection period for the author’s personal rights to attribution, revision and protection of the integrity of the work is not limited. Mr. Xu Beihong’s death is more than 50 years, therefore the platform distribution of the digital collection related to the work has no legal deficiency in copyright law. Moreover, it is not necessary to obtain the consent of the Peon Generation (Xu Beihong Museum of Art) or Xu’s descendants, as long as the platform does not violate the author’s personal rights.

However, since the original works must be used to create the digital version, it may exceed the exhibition rights of the owners of the original works. (Article 10.8 Copyright Law RPC), or, in other words, the right to publish original copies or reproduced copies of works of art and cinematographic works. Therefore, if the platform did not obtain the consent of the original work owner, and distributed the digital version to others, the owner has the right to claim copyright infringement.

In addition, because the owner of the original work only has the right of exhibition (Article 20 Copyright Law RPC), if the NFT works are generated from counterfeit pieces of Xu’s work, it is difficult for the owners of the original work to complete a lawsuit using the copyright infringement as argument.

Does Xu Beihong Museum of Art have IP rights to these NFT works?

According to the Chinese copyright law, the protection period for a work is 50 years after the death of the author. The museum is only the owner of the original work and cannot claim the personal rights to the work. Therefore, it is difficult for the museum to win with copyright claims.

However, they mentioned that they own the trademark of “Xu Beihong”, which is likely to be the entry point in the potential lawsuit against the NFT platform. In this case, if the original works are fake, it is a violation of the trademark law, as it will cause confusion for consumers by using Xu’s name under Chinese trademark law. What should be emphasized here is that if the original works are genuine, it does not infringe on Xu Beihong’s trademark owner, as it can also be considered a guiding use when selling Xu Beihong’s NFT works.

In short, NFT work is still a very controversial topic as it is not regulated by the laws of most countries, but if we understand the content of intellectual property rights, it is not difficult to find solutions via current laws and regulations. In this case, it may still be protected under applicable trademark and copyright law.