This case involves the following legal issues:
1. The Jurisdictional Issue: Under the Jurisdiction of Courts in Shanghai or Under the Jurisdiction of Courts in Hong Kong?
After the case was filed with the former Intermediate People's of Shanghai defendants raised several jurisdictional challenges, holding that the case should be under the jurisdiction of Courts in Hong Kong. The reason for the challenges was that the auction took place outside mainland China, and should be governed by the commerce law of Hong Kong, the internationally accepted practices of auctioneers, and the rules of auction of Hong Kong Yongcheng made known to the public. If the case was placed under the jurisdiction in mainland China, it would be as if a traffic accident that occurred in Hong Kong was adjudicated in a court in mainland China in accordance with the traffic rules of mainland China. The courts in this case held that according to Article 29 of the Civil Procedure Law of the People's Republic of China, a suit of tort should be under the jurisdiction of the people's courts whose jurisdiction covered the place of tort or the domicile of the defendant. The auction by the two defendants involved a series of activities including collecting paintings and calligraphic works, editing, printing and distributing the Picture Catalogue, and settling the accounts after the auction. A number of the printed copies of the Picture Catalogue which contained the painting in question were sent to and distributed in Shanghai. This fact shows that Shanghai was one of the places of the tortuous acts. Besides, the auction of the painting in question was organized jointly by Shanghai Duoyunxuan and Hong Kong Yongcheng, and Shanghai Duoyunxuan's domicile was in Shanghai. On account of this, we held that plaintiff Wu Guanzhong acted in conformity with relevant provisions of our civil procedure law when he, claiming that Shanghai Duoyunxuan and Hong Kong Yongcheng had jointly committed a tort, brought the case to a court whose jurisdiction covered the domicile of one of the defendants Shanghai Duoyunxuan. In light of either the " place of tort" theory or the "defendant's domicile" theory, we held that the relevant people's courts in Shanghai, in asserting jurisdiction over the case and in applying the laws of the PRC, acted in conformity with relevant provisions concerning suits of tort under the Civil Procedure Law of this country. The position of Shanghai Duoyunxuaa and Hong Kong Yongcheng that the case should be governed by Hong Kong law and should be under the jurisdiction of courts in Hong Kong had no factual and legal support.
2. One Case for One Dispute, or Two Cases for One Dispute?
The Higher People's Court of Shanghai, after reviewing the procedural aspects of the case; held that a party should not bring two suits on the basis of different claims that arose from the same legal act or event, i.e., there should not be two suits for one dispute. On October 8, 1994, plaintiff Wu Guanzhong petitioned to the civil case section of the Intermediate Court to drop the suit he had brought thereto, stating that he "waives his claims against the two defendants for 4amage to his reputation and infringement upon his rights regarding his name, in order to speed up the hearing of the case of copyright infringement against the two defendants". Since the civil case Section of the Intermediate People's Court granted Wu Guanzhong petition for dismissal of the said case, the Higher People Court held that the plaintiff, in bringing the case to a court whose jurisdiction covered the domicile of defendant Shanghai Duoyunxuan, and in basing his' claims on the joint infringement by Shanghai Duoyunxuan and Hong Kong Yongcheng upon his copy-right, acted in conformity with relevant provisions of the Civil Procedure Law of this country regarding jurisdiction. The Higher People's Court affirmed the ruling of the intellectual property section of the Intermediate People' S Court with respect to the jurisdiction of the case.
3. Burden of Proof
Plaintiff Wu Guanzhong alleged in his complaint that the two defendants jointly held an auction in Hong" Kong, at which a painting entitled Portrait of Mao Zedong was sold. The painting had the inscription (in Chinese) "Bombarding the Headquarters-a Big Character Poster of Mine, Mao Zedong" on it, and contained the Chinese characters "Wu Guanzhong, at the Institute of Arts and Crafts, in 1962". Wu held that the painting was a counterfeit with a forged signature of his. A key question related to the question of whether the painting was a counterfeit or not was who had the burden of proof, the plaintiff or the defendants.
One answer to the question was that the claimant should have the burden of proof; and so the plaintiff should have the burden of proof in this case. Though the plaintiff produced the forensics report provided by a department of public security stating that the signature of Wu Guanzhong on the painting Portrait of Mao Zedong was forged, we could not infer logically from this that the painting itself was a counterfeit. The forensics report only established that the signature was a forgery. It did not establish that the painting in question was a counterfeit. A forged signature on a painting does not necessary mean that the painting itself is counterfeited. A painting is composed of the painting itself, and the inscription and signature on it. In real life the three component pans may hive been completed by the same person or by different persons. Sometimes the painting itself is genuine, but the inscription and signature have been forged, or the painting itself is a counterfeit but the inscription and signature are genuine. Therefore, the proof provided by the plaintiff was only a partial performance of his obligation to provide proof. He had yet to prove that the painting itself and the inscription were counterfeited.
Another view was that plaintiff Wu Guanzhong was a claimant in this case. Though he stated that he never painted the painting in question, he still had to prove that the signature on the painting was not his genuine signature, because the painting had his signature. Since Wu Guanzhong provided proof to establish that the signature was a forgery, the burden of proof was shifted onto the defendants. Defendant Shanghai Duoyunxuan provided some proof, but the proof it provided was not adequate to establish that the painting in question was indeed created by Wu Guanzhong. On account of this, Shanghai Duoyunxuan should hold itself resposible for inadequacy in producing proof. Hong Kong Yongcheng, in failing to respond to the summons, waived its rights and responsibilities in connection with the issue of burden of proof Besides, though defendant Shanghai Duoyunxuan provided some proof, such proof still fell short of establishing that Wu Guanzhong called a work genuinely his a
counterfeit, or that the painting in question was indeed by the hand of Wu Guanzhong
The courts adopted the second view. The courts concluded after hearing the case that on the basis of available evidence, the painting Portrait of Mao Zedong, which was the focus of dispute in this case, was not signed by Wu Guanzhong, and was a painting with a forged signature of Wu Guahzhong.
4. A Case of Copyright Infringement, or a Case of Infringement on a Person's Right to His Name?
One view on this question was that under the Copyright Law of this country, "making and selling paintings with forged signatures included acts of making and selling works completed by the artist himself but carrying a forged signature of his, as well as acts of making and selling works which the artist never painted but which carried a forged signature of his. People with this view also held that the legis1ative intent behind the Copyright Law of this Country was to strengthen the administration of the market of paintings, to enhance the protection of the artists' right to their names, and to combat more forcefully the making and selling of paintings with forged signatures. Works of fine arts are prone to be counterfeited. A piece of work with the signature of a famous artist may sell for an enormous price, but, without the signature, the same piece of work may not sell at all. The signature of the artist is closely related to the price of the painting. The artist's right of authorship is protected by the provision in the General Principles of Civil Law of this country, which says that citizens shall enjoy the right of personal name and shall be entitled to determine and use their personal names or change their personal names in accordance with relevant provisions. Interference with, usurpation of and false representation
of personal names shall be prohibited". At the same time, the artist's right of authorship is also protected by the provision in the Copyright Law of this country, which prohibits the making and selling of works of fine art with forged signatures. This, in legal theory, is called overlapping of laws. When there is an overlapping, the application of law should follow the principle of " special laws take precedence over general laws". On this principle, the acts of the two defendants in this case should be defined as copyright infringements in accordance with the copyright Law of this country, instead of infringement upon the right regarding a person's name in accordance with the General Principles of Civil Law.
The second view was that the acts of the two defendants infringed upon the plaintiff's rights to his name. This view is based on the theory that the object of protection under the copyright law is the creative works. Protection of copyright would be water without source or wood without roots, if it is isolated from the created works. In other words, if the copyright owner claims the protection of his copyright by law, the legal protection is available only when there exists a relevant work of the claimant. Besides, we may take a look at the provisions of the Copyright Law of this country. Article 46 specifically mentions works of fine art as objects of and punishes only the making and setting of that have forged signatures. On this theory, the claimant can not assert his right without proving the existence of a relevant piece of his own works. The plaintiff in this case Wu Guanzhong never painted Portrait of Mao Zedong, so how could he claim protection of his copyright? Those who held this view thought that the infringing acts in this case should be better defined as infringement upon rights regarding a person's name, and the persons who committed such infringement should be pursued for liability for infringement regarding a person's name.
The courts held that the law protected the right of citizens to affix their names to their works, and at the same time the law prohibited the making and selling of works of fine art with forged signatures. Shanghai Duoyunxuan and Hong Kong Yongcheng, in selling works of fine art that had the forged signature of Wu Guanzhong in an auction held jointly by the two according to their mutual agreement, jointly infringed on the copyright of Wu Guanzhong.
5.The Nature of Auction and the Liabilities of the Auctioneer
The courts decided after deliberation that auction was a special form of sale which was accomplished through bidding. It was an activity with a profit motive. The relationship between the auctioneer and the person who authorized the sale is one of commission instead of agency, because the auctioneer does not conduct the auction in the mime of the person who authorizes such sale. Neither is the relation-ship between the two one of intermediacy, because the auctioneer acts not as an intermediary- but as a seller as far as the purchaser is concerned. The auctioneer acts as a sort of factor, and should be held accountable for the legal consequences of its acts- in all its external relations. It can not assert its right against a bona fide third party.
6.The Difference Between the Judgments of the Trial and Appellate Courts
The appellate court held that Shanghai Duoyunxuan and Hong Kong Yongcheng, in insisting on auctioning the piece in question in spite of efforts of relevant departments to dissuade them from doing so, committed a serious infringement and should be held liable for such infringements and be enjoined to stop their infringing acts, to apologize, to eliminate the negative effects and to pay damages. The trial court's findings of fact were supported by adequate evidence, and its application of law was correct. However, in view of the fact that the painting in question was entrusted to Hong Kong Yongcheng directly, and Shanghai Duoyunxuan forwarded the opinions of the relevant departments and of the artist to Hong Kong Yongcheng several times, and in accordance with principle that joint offenders should be held jointly and severally liable and that liabilities should be judged in accordance with each party's respective share of fault, the appellate court decided that Hong Kong Yongcheng should be held chiefly liable for the infringing acts, and Shanghai Duoyunxuan, as a co-sponsor of the auction, should be partially liable and the two defendants should be held jointly and severally liable to each other. The appellate court changed the decision of the trial court that "The defendants shall pay jointly to plain-tiff damages in the amount of RMB73, 000', into "Shanghai Duoyunxuan and Hong Kong Yongcheng Antiques Auction, Ltd. of Hong Kong shall pay jointly to Wu Guanzhong damages in the amount of RMB73, 000, of which 27,000 shall be paid by Shanghai Duoyunxuan and 46, 000 shall be paid by Hong Kong Yongcheng Antiques Auction, Ltd. "
(by Lv Guoqiang)
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