Whilst more and more graffiti works have been created at the planned sites nowadays, many were painted in other areas, and carry on the traditional nature of ephemerality of graffiti. Like in anywhere else, graffiti artists in China are struggling to preserve their works and protect their copyright.
In China, the legal consequences for creating graffiti [1] without the consent of the owner of the property would be an administrative warning or a warning with a fine. The governments have taken tolerant attitudes towards graffiti, provided that the contents of such works are legal, and local authorities usually provide designated spaces for graffiti artists. Whilst more and more graffiti works have been created at the planned sites nowadays, many were painted in other areas, [2] and carry on the traditional nature of ephemerality of graffiti. Like in anywhere else, graffiti artists in China are struggling to preserve their works and protect their copyright. [3]
The majority of graffiti artists have been proactive in commercialisation of their works; stories of commercial success are often heard, together with recognitions in the scene. For instance, Zhang Dali, a pioneering graffiti artist in Beijing, has become one of the most celebrated in China and gained appreciations internationally. Dali’s early works were deemed “illegally placed”, his works have been widely recognised and seen as critical and rebellious content-wise. [4] Indeed, the genre of graffiti in China is diverse. Whilst Banksy, known for his striking “copyright is for losers” represented anti-capitalist or anti-establishment approach [5], opened a so-called “Graffiti war” to Robbo in 2011 [6], the commercial success is predominate incentive to the Chinese graffiti artists, so as gaining copyright protection to their works; many have registered photos of their graffiti works with the copyright authorities and sell the photographic prints of the works to public.[7]
Article 3 of the Copyright Law of China (CCL) specifies the scope of subject matter and provides protection in line with the Berne Convention, including a category of “works of art”, to which graffiti works belong. The CCL defines copyrightable works as "intellectual creations with originality in the literary, artistic or scientific domain, insofar as they can be reproduced in a tangible form" [8], which set a twofold criteria for copyright protection, whether a creation is original and whether it can be reproduced in a tangible form. Whilst the level of originality may vary one from the other, graffiti works are usually temporary. It is thus important to understand the assessment of originality and if the ephemeral nature of graffiti works may affect their attribute for copyright protection.
The statutory law provides no clarification for the test of originality for artworks in general, though the courts have elaborated such assessment regarding works of art in numerous cases and have seldom disapproved the originality of any disputed artworks, [9] even when the debated artwork was very simple or contained minimum divergence in comparison with a previous artwork. For instance, in the 2012 landmark case of Jinqing Hu and Yunchu Wu v. Shanghai Animation Film Studio, the Shanghai Second Intermediate People’s Court maintained that the test of originality concerning artworks should include: if a work was created by hand drawing, if the work combined with the use of lines and colours to form a specific and fixed shape, if it held any aesthetic meaning, and if its artistry, originality and reproducibility were in conformity with the requirements of subject matter stipulated in the Chinese copyright law and that thus should be protected by the law.[10] Whilst the interpretation seemed mainly a repeat of Article 3(4) of the CCL and Article 4(8) of the regulations, and offered no further explanation for the terms “originality”, “artistry” and “reproducibility”. The courts reading of the law was controverted by many and was considered taking an akin Anglo-American approach as regards the bar of originality assessment.[11] The courts’ decisions were hence criticised as lacking proper comprehension of the different originality requirement in the systems of common law and civil law.[12] Some of the court decisions were found “a confusion of the logical relationship between intellectual creation and physical labour” and were urged to raise the bar of the assessment.[13]
Nonetheless, the benchmarks applied in the Chinese courts’ examination of originality of an artwork have been further evolved in Shaoxing Water Conservancy Bureau v. Wang Juxian Company (SXWCB Case), the Supreme People’s Court (SPC), upholding the decision of the Zhejiang Province High People’s Court, has established that the test of originality should be mainly two steps, i.e. if the artwork was created independently and if the creation involved creator's intellectual judgement. Regarding the reproducibility test, the SPC stated that it should be satisfied once an expression of idea being fixed and the duration of fixation should be irrelevant to copyrightability.[14] In Beijing AVIC Zhicheng Technology v. Shenzhen Feipengda Boutique Manufacturing, one of the “Ten Representative IP Cases of the year of 2015”, the Beijing High People’s Court stated that “originality” requires that the work must originate from the author and the work must have some degree of novelty, of which the former means the artwork must be created by the author through an independent concept, rather than imitating or plagiarising the works of others, and the latter means that to be recognised as a work protected by Chinese copyright law, minimum level of creativity must be vested in the work. [15]
These interpretations of the courts have been confirmed in the Guiding Case 80 that issued in March 2017, i.e. Hong Fuyuan and Deng Chunxiang v. Guizhou Wufufang Food Co., Ltd. and Guizhou Jincai Ethnic Culture Research and Development Co., Ltd.. In Founder Group v. Procter & Gamble Co., the court set that single word, single-coloured or single-lined calligraphy would meet the criterial of copyright protection for works of art.[16] According to the Chinese courts’ interpretation, most graffiti works meet the requirements of originality and reproducibility for copyright protection under the current law, and the character of ephemerality would not stand in the way.
In practice, most graffiti works are considered original and able to be reproduced in a tangible form regardless of the levels of creativity, and thus saw numerous ephemeral graffiti works, including “illumination graffiti”[17], registered with the copyright authorities.
The Chinese Courts’ interpretation of originality is similar to the decision made by the United States Supreme Court, where in Feist Publication v. Rural Telephone Service, departing from the traditional "sweat of the brow" common law approach, the judgement established that some degree of creativity is essential to originality, although the requisite level of creativity is extremely low, even a slight amount will suffice; “no matter how crude, humble or obvious” it might be. Thus, the vast majority of works make the grade quite easily, as they possess some creative spark. [18] Identical to the situation in China, the “creative spark” requirement has been called for modification, it is proposed that to “foster a diverse and stimulating culture”, the criterial of originality should be interpreted requiring “a significant degree of novelty as a precondition for copyright protection”. [19]
Graffiti are protected under the Chinese copyright law, in line with the international conventions, for the purpose of encouraging creativity and enriching culture. It must be reminded that the essence of copyright law is the power of securing private property rights, which should be recognised as one the fundamental rights of any right holders, including graffiti artists. Unlike other IPRs, copyright is granted as soon as a work has been created, namely an idea has been expressed/fixed, and that particular form expression satisfies the requirements of copyright protection, which include originality. Such nature of copyright law is vital for safeguarding the protection of graffiti artists, as well as for preserving the freedom of expression. It is on the matter of the latter that the Chinese courts’ approach of a minimum requisite level of creativity not only should be carried on but also should be promoted. Graffiti works, a representative of the expressive street culture, have no doubt been acting as means of freedom of expression, ought to be protected by copyright law, and the Chinese courts are moving forward positively in that aspect.
[1] Note that works of graffiti and street art are all called ‘tuya’, graffiti, in Mainland China.
[2] For example, those soon-to-be-demolished venues.
[3] For instance, 80 percent of Xinghua Qi’s street artworks were destroyed <https://new.qq.com/omn/20181108/20181108A20DIF.html> accessed 23 April 2020.
[4] For photos of those works and biography of the artist see < http://www.zhangdaliart.com> accessed 23 April 2020.
[5] Banksy, Banksy: Wall and Piece, Century (2006).
[6] When Banksy created a figure of man papering over a colourful tag made by Robbo in 1985, which almost went over Robbo’s work entirely. Marta Iljadica, Copyright Beyond Law: Regulating Creativity in the Graffiti Subculture, Hart Publishing (2016) 251.
[7] For example, Dali’s “Dialogue and Demolition” <http://www.zhangdaliart.com/en/sale.html> accessed 23 April 2019.
[8] Regulations for the Implementation of CCL, Article 3.
[9] 王迁: 著作权法借鉴国际条约与国外立法：问题与对策, 载《中国法学》2012年第3期第 28-38页; Qian Wang, ‘Copyright Law Refers to International Treaty and Foreign Legislation: Problems and Countermeasures’, (2012)3 China Legal Science, 28-38.
[10] 胡进庆、吴云初诉上海美术电影制片厂著作权权属纠纷案,（2011）沪二中民五（知）终字第62号民事判决书; Jinqing Hu and Yunchu Wu v Shanghai Animation Film Studio, Shanghai Second People’s Court Civil (IP) Judgment Number (2011) Final Decision 62.
[11] 刘春田:《知识产权法》，中国人民大学出版社 2014年第五版第 4页; Chuntian Liu, Intellectual Property Law, Renmin University of China Press (5th Edition 2014), 4.
[12] 金渝林: 论作品的独创性, 载《法学研究》1995年 第4期第 51-60页; Yulin Jin, ‘On Originality of Works’, (1995)4 Chinese Journal of Law, 51-60.
[13] 刘春田:《知识产权法》，中国人民大学出版社 2014年第五版第 4页; Chuntian Liu, Intellectual Property Law, Renmin University of China Press (5th Edition 2014), 4.
[14]绍兴市水利局诉王巨贤公司侵害著作权纠纷案, (2013)民提字第15号; Shaoxing Water Conservancy Bureau v. Wang Juxian Company, SPC Civil Judgment Number (2013) 15. Note that this case was selected as the “Case XII of the 2014 Chinese Court 50 Typical IP Cases” and the “Case Summary 32 of the SPC IPR Annual Report 2014”.
[15]北京中航智成科技有限公司与深圳市飞鹏达精品制造有限公司侵害著作权纠纷上诉案, (2014)高民(知)终字第3451; Beijing AVIC Zhicheng Technology Co., Ltd. v. Shenzhen Feipengda Boutique Manufacturing Co., Ltd, Beijing High People’s Court Civil (IP) Judgment Number (2014) Final Decision 3451.
[16]（2011）一中民终字第5969号; Beijing First Intermediate People’s Court Civil Judgment Number (2011)Final Decision 5969.
[17] Graffiti that created with rapid moving light(s) at night.
[18] Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
[19] William Fisher, (2016) 54:2 Houston Law Review 437-468.