On August 17, 2010, the Beijing Dongcheng District People’s Court heard a case brought by painter Zhao Menglin (Plaintiff) against the Beijing Arts & Crafts Group Co. Ltd. and the Fujian Fuguihong Culture Development Co. Ltd. (Defendants) for copyright infringement.

Zhao testified that, he finished the album of paintings Facial Makeup in Peking Opera in 1992. The album of paintings consists of 272 types of Peking Opera facial makeup and some figure paintings featuring the Peking Opera. Zhao’s lawyer found that eight kinds of facial makeup were used by the two defendants on their porcelain works and subsequently filed suit against them. The defendants argued that the plaintiff’s facial makeup lacked distinctiveness and thus could not enjoy copyright protection.

It is not the first time Mr. Zhao has brought actions on the grounds of copyright infringement. Previously, he had sought relief from South Beauty, Microsoft, Amoi Electronics and many other large companies. Zhao’s lawyer said, “Over the years, I have helped him file dozens of lawsuits. However, I estimate that those dozens of proceedings only account for less than 1% of the total actual infringements. ”

As a kind of folk art, whether the Beijing Opera facial makeup has distinctiveness and whether it should be subject to copyright protection has become the focus of debate in each case. The Beijing Opera facial makeup, which is rich in historical and cultural innovation, faces unprecedented challenges.

Embroiderer’s Puzzle

New challenges are not only faced by the Peking Opera. The Suzhou embroidery The Drunken Beauty was also involved in a copyright infringement action. The Shanghai Chinese Quintessence Art Co., Ltd. (Plaintiff) sued Suzhou Goulswon Handcraft Co., Ltd. (Defendant) for using Liu Linghua’s famous work The Drunken Beauty as a sample without authorization. The Goulswon Company produced and sold The Drunken Beauty embroidery, which was regarded by the plaintiff of copyright infringement. The defendant argued that the embroidery work was rough in quality and not produced by the Goulswon Company. Nevertheless, since the defendant could not provide additional evidence of non-infringement, the first instance court ruled that the defendant’s action had infringed the copyright of the plaintiff. The defendant appealed. During the appeals hearing, the dealer, Beijing Ya Bo Jia Shang Culture Development Co., Ltd., admitted its infringement. The case was eventually settled through conciliation. According to incomplete statistics, Suzhou embroidery artists have been successively sued for copyright infringement over the last two years.

Does the process of embroidering which replicates paintings belong to a recreation? How to define the copyright protection involved in that process? Suzhou embroidery, which has a history of 2,600 years, also has to face the challenge of copyright infringement.

The Application of Copyright Law

Most of the traditional folk arts including Peking Opera facial makeup, embroidery and paper cutting art which survive the tide of industrialization and maketization are often trapped in the vortex of intellectual property issues. Whether they positively safeguard their rights or passively respond to the suits, the traditional folk arts which carry the unique cultural heritage face the same problem - how to adapt to the modern legal environment and how to achieve a healthy and sustainable development.

“This case draws a seemingly simple but very serious topic: how to clearly define the copyright infringement issues involved in the succession and development of intangible cultural heritage such as embroidery,” said Zhu Jiechun, the presiding judge of the IP Division of the Suzhou Intermediate People’s Court and the judge of the Suzhou embroidery infringement case. “The focus of the problem is laid on the doubt whether the embroidery work featured with the Beijing Opera facial makeup enjoys copyright protection. Up now, the insiders have reached a consensus that the copyright should be recognized on the embroidery works,” said Zhang Zhenye.