EUR 2,453 per individual character: Chinese brush pen calligraphy works and fair use

Chinese brush calligraphy is a traditional art form of writing ‘Hanzi’ (in Chinese: ‘汉字’, Chinese characters). For thousands of years, it has been an enduring form of self-expression. With simple tools – normally four: ink brush, ink, paper and inkstone, which are called ‘the four jewels of the study’ in China – calligraphers could freely present an infinite variety of works by controlling the pressure of the brush, the ink intensity, or the speed of wielding the brush. The combination of simplicity and myriads of changes have bestowed calligraphy works inexhaustible appeal throughout history.

There are some standard styles in brush calligraphy, e.g. the square, straight and neat ‘Kaishu’, the unruly and allegro running ‘Caoshu’, and the in-between style ‘Xingshu’.

Yet, even when written in the same style, works from different calligraphers can easily present distinctive personal characteristics, as brush calligraphy is the combination of visual aesthetics, literary meaning and the state of mind and body of the calligrapher. A calligraphy work then, to some extent, is more of a pictorial work. Maybe that is one of the reasons why Picasso once said, ‘Had I been born Chinese, I would have been a calligrapher, not a painter.’ A piece of calligraphy work is able to convey rich emotions and artistic conception of calligraphers.

A friend's handwritten calligraphy is a gift to treasure.
The calligraphy above is by Dr. Li Yi. 

Recently, as part of the routine practice of the nationwide systematisation project of unifying judicial standards in China, the Beijing IP Court released ‘the 15 Model IP Cases of 2019’. The 12th case in the collection, Xiang Jiahong v Dreamer Film Ltd. et al., was selected specifically to show the boundary of fair use regarding calligraphy works.

The plaintiff, Xiang Jiahong (Mr Xiang), is a well-known calligrapher. In December 2013, Mr Xiang registered his work ‘(the collection of) Xiang Jiahong Xingshu style calligraphy’ under the category F, i.e. ‘work of fine art’, with the Guangdong Provincial Copyright Administration.

The work of fine art, as stipulated in Article 4(8) of the Regulation for the Implementation of the Copyright Law of China (2013 Revision), refers to ‘two-or-three-dimensional works of the plastic arts created in lines, colours or other media which impart aesthetic effect, such as paintings, works of calligraphy and sculptures.’

Mr Xiang, in the description of the work, made a statement as follows:

‘The reason why I applied for copyright registration is to make my work available for the public to download for free to promote the development of personal art and personalised fonts; at the same time, it is also to prevent businesses from using my work for commercial profit (without my consent).’

In March 2014, the Guangdong Provincial Copyright Administration issued the certificate of copyright registration to Mr Xiang, which recorded the first publication date of the work as 7 October 2013.

On the other side, in April 2014, Dreamer Film Ltd. and three other defendants (‘the defendants’) signed an investment cooperation agreement on producing the film named Chronicles of the Ghostly Tribe (in Chinese: ‘九层妖塔’, ‘the Film’).

The Film was released in September 2015. As shown in the judgments, the Film used a total of seven Hanzi registered by Mr Xiang in five instances:

• ‘鬼族史’ (‘history of the ghost race’) was shown on a book cover (as the title of the book) for two seconds;

• ‘华夏日报’ (Huaxia Daily) was shown on a newspaper (as its name) for one second;

• At 57:07, the Film showed once again a fleeting scene of the ‘华夏日报’ newspaper.

• At 0:38 of the 1-minute long pilot trailer showed a flash of the book cover with the characters of ‘鬼族史’ on it;

• At 0:42 of the 1-minute and 58 second ultimate trailer showed the book with ‘鬼族史’ on it again.

The screenshots of the seven Hanzi appearing in the Film*

Mr Xiang sued the defendants for having infringed his copyrights in the seven Hanzi, namely, 鬼, 族, 史, 华, 夏, 日, 报 and requested CNY 500,000 in damages.

Trial at first instance

[Civil Judgment No. 50488 [2016], First, Civil Division, 0105, Beijing, of Beijing IP Court, full text of judgment is accessible here (in Chinese)]

The main point of confrontation concerned fair use. To establish that, the defendants argued that (1) the seven Hanzi at issue were merely used in their basic function to explain the names of the two props, i.e. the aforementioned book and newspaper. Such uses actually had become ‘transformative’, as they intended to mainly convey the meaning of the Chinese language it carries, rather than showing its artistic value as a work of art; (2) the seven Hanzi merely occupied a secondary and subordinate position in the Film and gained new meaning and function. That did not affect the normal uses or exploitation of the seven Hanzi as works of fine art, thus having no substantial impact on Mr Xiang.

In view of the above, the defendants argued that they had acted in accordance with the ‘appropriate quotation’ of fair use under Article 22.1(2) of the Copyright Law of China (2010 Amendment):

‘In the following cases, a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon:

…

(2) appropriate quotation from a published work in one's own work for the purposes of introduction of, or comment on, a work, or demonstration of a point;’

The Court held that the dual functions carried by the seven Hanzi at issue, i.e. expressive and artistic, were not contradictory or exclusive to each other. The seven Hanzi indeed worked as explanations of the props’ names, they also presented an aesthetic feeling of art, and this could also be proven by the fact that the defendants had not chosen any other commonly seen fonts but the specific one from Mr Xiang.

Further, the uses were not considered to be sufficiently transformative, as no new value or function had been added to the seven Hanzi: their original art value remained unchanged. By authorising others to use his work, Mr Xiang obtained economic benefits. Thus, the defendants’ unauthorised and unpaid use of Mr Xiang’s work did conflict with Mr Xiang’s normal use.

Given the foregoing, the claimed fair use exception of ‘appropriate quotation for the purposes of introduction of, or comment on, a work, or demonstration of a point’ was rejected.

The defendants also tried the ground of author’s duty of care, by arguing that both the seven Hanzi at issue and the whole collection they belonged to, could easily be accessed and downloaded online, and there were no copyright statements shown, which showed the laissez-faire attitude of Mr Xiang. As a result, users should not have excessive care obligations imposed on them.

The Court noted that whether the works at issue could be easily obtained through public channels or not had nothing to do with whether their uses constituted infringement. Moreover, the ascertained evidence showed that, meanwhile, plenty of websites containing ‘Xiang Jiahong Xingshu style of brush calligraphy’ with proper copyright notice could be easily found.

Trial at second instance

[Civil Judgment No. 1428 [2018], Final, Civil Division, 73, Beijing, of Beijing IP Court, full text of judgment is here (in Chinese). the court trial can be re-watched via here]

The defendants added that the description of the works provided by Mr Xiang contained the following statement:

‘This work of mine could be downloaded for free, in order to meet the needs of friends in the design community and art circles. I’d love to make a modest contribution to society.’

To that, the Court opined that the very description of works also contained Mr Xiang’s explicit words (as mentioned above) that he would like to, in the meantime, ‘prevent businesses from using his work for commercial profit without [his] consent’. Thus, it shall not be assumed that Mr Xiang had granted permission for commercial use for his works, nor deny the defendants’ fault for their unauthorised use.

Further, the Court at second instance added that every single one of the seven Hanzi at issue constituted an independent work of fine art, the ‘appropriate quotation’ of which shall not be evaluated by its proportion in the Film.

Thus, the appeal request with regard to fair use was dismissed. The judgment at first instance was upheld, and the defendants were ordered to pay CNY 140,000 in damages. So roughly speaking, it cost CNY 20,000/EUR2,453 per individual Hanzi. The amount was calculated based on the commercial licensing fee of Mr Xiang’s brush calligraphy work.

Comment

Chinese brush calligraphy works, particularly those like Mr Xiang’s, who has come up with a whole collection with thousands of calligraphic Hanzi, often cost a great amount of effort (one can imagine it is much demanding than just ‘sweat of the brow’). Given the relatively large number of Hanzi (altogether over 50,000 Hanzi, of which the frequently used ones are around 8,000. [BBC]). It is a massive project to write down each character, scan it digitally, make adjustments, and finally make it available to users (see a Quora discussion here). For the sustainable enjoyment of culture and calligraphy arts, legally prescribed incentives must be given for authors’ creativity.

As one of the ‘Model Cases’ selected by the Beijing IP Court, this legal saga is a wake-up call for the fluke mind who had been unaccustomed to paying or deliberately avoided paying for the use of others' calligraphy works. The main takeaway of the case is clear: one must check the ownership of copyrights in advance before use, and seek to obtain the relevant authorisation if needed.

*The screenshots of the seven Hanzi appearing in the Film are from the Beijing Higher People's Court.