Great painters, plagiarists and the art world: "Don't expect to talk openly about it on a large scale"
"After four years of waiting, we won the trial in China." On September 1, 2023, Beijing time, Belgian painter Christian Sylvain announced on his personal social account.
Belgian artist Sylvain. (Photo courtesy of interviewee)
In February 2019, a gallery friend in Amsterdam reminded Sylvain that a work highly similar to his paintings was exhibited in Bonn, Germany. The paintings came from contemporary Chinese artist Ye Yongqing. Both use poster forms, and some original elements such as red dots, birds and birdcages, dragonflies, children, etc. also exist in their works. Sylvain also found that at auction, a painting signed by Ye Yongqing sold for as much as 400,000 euros, nearly a hundred times the price of his own painting. Six months later, Sylvain formally filed a copyright civil infringement lawsuit.
The two protagonists in the event are famous artists in their respective countries. Born in 1950 in Oypen, Belgium, Sylvain is self-taught, has had hundreds of solo exhibitions in dozens of museums in Europe and in the private collections of the Belgian royal family. After the 1990s, Ye Yongqing gradually became famous, a representative figure of the "Southwest Art Group" and even the entire contemporary art world, a former professor at the Sichuan Academy of Fine Arts, friends and people who knew him used to call him "Ye Shuai".
This event has shaken the Chinese contemporary art scene. The well-known critic Li Xianting first apologized to the art world for writing the preface to the joint exhibition of Ye Yongqing and Liu Wei, and called on Ye Yongqing to apologize publicly. Liu Yiqian, a collector who spent more than 10 million yuan to purchase many works by Ye Yongqing, also spoke out later. On the other hand, among art critics, collectors and curators, there are also people who defend and explain Ye Yongqing, classifying this incident as "embezzlement" and "borrowing". Ye Yongqing himself did not give a substantive explanation for the alleged plagiarism. At press time, Ye Yongqing's lawyer had not responded to an interview raised by Southern Weekend through multiple channels.
Sylvain's A Sleeping Sky (left) and Ye Yongqing's The Skater (right). (Infographic/Figure)
The Chinese contemporary art market has also been affected. At the 2019 Hong Kong Spring Auction, except for the works of art standard-bearers such as Wu Guanzhong and Zao Wou-ki, which were as strong as ever, the contemporary art sector was cold and sales were weak. Some industry insiders pointed out that this incident caused damage to the credibility of Chinese contemporary art, including art production, art criticism, art market and other links.
Four years of rights protection
For Sylvain, the road to rights defense has been tortuous and difficult. For four years, living alone, he still painted ten hours a day in his studio, but sales of his paintings stalled as the European market watched the lawsuit. The psychological burden is even heavier," and "the lawsuit dragged on for the last three and a half years, and he was already experiencing severe mental anxiety and depression. Wu Tao, Sylvain's Chinese lawyer, told Southern Weekend.
Although the Beijing Intellectual Property Court accepted the case as early as 2019, Ye Yongqing evaded receiving the litigation documents sent by the court. On October 13, 2020, the Beijing Intellectual Property Court issued an announcement to serve Ye Yongqing with litigation documents by public announcement, which is only used when the whereabouts of the addressee are unknown or otherwise cannot be served.
In other words, Ye Yongqing's status in 2020 was "missing", but in December, Ye Yongqing raised a "jurisdictional objection". After being rejected by the Beijing Intellectual Property Court, Ye Yongqing again appealed the ruling of the jurisdictional objection to the Beijing Higher People's Court. In August 2021, the Beijing High Court dismissed the appeal and upheld the original ruling.
During this period, in March 2021, Ye Yongqing filed a lawsuit in the Federal Court of East Flemish in Belgium, claiming that Sylvain had caused him reputational damage. Wu Tao said that Sylvain went to the court several times to make notes, and "each time it was quite long, four or five hours." However, Ye Yongqing's move did not slow down the progress of the Beijing Intellectual Property Court's trial of copyright infringement. Wu Tao analyzed that after the Chinese court ruled in favor of Sylvain, the Belgian judge may withdraw the case.
In addition to filing a lawsuit against Ye himself, in 2020, Sylvain also sued Sotheby's and Christie's, many of Ye's infringing paintings had been sold at their auctions. Wu Tao revealed that Sylvain and the auction house reached a settlement, the content of which was confidential, but the two auction houses may never sell Ye Yongqing's paintings again.
Sylvain's Letter in the Sky (left) and Ye Yongqing's Birds Without Their Nests (right). (Infographic/Figure)
After Ye Yongqing was accused of plagiarism, the Sichuan Academy of Fine Arts, where he worked, issued a statement that it would check for academic misconduct. In April 2020, after more than a year, the Sichuan Academy of Fine Arts responded to the "temporary dismissal of the investigation" of retired teacher Ye Yongqing. For this reason, Sylvain filed an administrative lawsuit in the Chongqing No. 1 Intermediate People's Court. On November 12, 2020, the First Intermediate Court of Chongqing Municipality accepted a lawsuit filed by Sylvain v. Education Commission for inadequate supervision. The Chongqing Municipal Education Commission, on the basis of Article 23 of the Measures for the Prevention and Handling of Academic Misconduct in Colleges and Universities (Order No. 40 of the Ministry of Education of the People's Republic of China), proposed that Ye Yongqing's academic misconduct should be investigated after the litigation judgment of the Beijing Intellectual Property Court. Wu Tao said that "the judgment does not refer to the first-instance judgment, but to the effective judgment", "so after the infringement judgment in Beijing comes into effect, Ye Yongqing may face an investigation into academic misconduct."
On August 22, 2023, the Beijing Intellectual Property Court rendered a first-instance judgment, requiring Ye Yongqing to immediately stop the infringement involved in the case, publish an apology statement in the middle page of the Global Times, and pay the plaintiff Sylvain RMB 5 million in damages.
Wu Tao told Southern Weekend: "There are two most important points in this case. First, this is the first time that a Western artist has come to China to defend their rights; The second is the award of 5 million yuan, which is generally lower than that of trademark patents, and 5 million yuan is the second highest amount of compensation ever awarded to a work of art by a Chinese court. "At present, the highest amount of compensation is in the 2021 Universal Pictures v. "Minions" cartoon image copyright dispute, five Chinese companies were sentenced to jointly pay 5 million yuan, and another company paid 100,000 yuan.
122 infringing paintings, 5 million yuan in compensation
Wang Kaimei works as an art critic and independent curator, has lived in Sweden for a long time, and is very familiar with European art. When she heard that Ye Yongqing was exposed to plagiarism, she vaguely remembered that she went to Beijing around 2005 to participate in the opening of Ye Yongqing's solo exhibition, "the pomp was very large, and the whole feeling was like a star." When she saw the exhibition, she wondered, "Why did such an artist who painted birds in Chinese landscape paintings suddenly come up with this cut-and-paste method?" She also told friends that it looked particularly like the work of the European North.
Sylvain's Fallen Leaves (left) and Ye Yongqing's Winter Memories (right). (Infographic/Figure)
"I was shocked, I didn't expect that such an artist called 'Ye Shuai' would do such a thing." Wang Kaimei told Southern Weekend that after four years of tug-of-war, the final result of the incident met the expectations of most people in the art world. However, she and another art critic, Liu Huatong, believe that the 5 million yuan compensation is not high, especially considering Ye Yongqing's income from paintings that often earn hundreds of thousands of millions of yuan. Liu Huatong bluntly said that this may not have a deterrent effect on the art world.
According to the complaint, Sylvain had claimed 50 million yuan in damages. Regarding the amount of compensation, Wu Tao explained that the Copyright Law stipulates that the plaintiff needs to prove his own losses or the other party's illegal gains, but sometimes this is difficult, "You can't prove that his buyer will definitely buy your painting if he doesn't buy his painting, so the plaintiff's loss is difficult to prove; It's also hard for you to prove his profit, he's in the auction, but there are a lot of factors that make the auction profit."
The 5 million yuan awarded in the first instance is the highest amount of statutory damages under China's new Copyright Law. Wu Tao told Southern Weekend that statutory damages take into account various factors, mainly including the popularity of Sylvain and his album, Ye Yongqing's popularity, the severity of the infringement, the economic benefits obtained from it, and his attitude towards the entire case during the litigation. "We believe that the amount of compensation of 5 million yuan is an appropriate amount and reflects the fairness of the Chinese courts." Wu Tao said.
In the past four years, except for the amount of compensation that cannot be determined, Wu Tao has always been confident of winning this case. For this reason, in the months leading up to the first instance verdict, he spent a lot of time comforting Sylvain.
The album submitted by Sylvain to the Court was printed in Belgium in March 1990 for use in the promotion of exhibitions of that period. In the early 1990s, Ye Yongqing went abroad and became one of the first Chinese painters to communicate with the West. Since 1993, he has traveled to Europe every year. This constitutes the possibility of Ye Yongqing's access to Sylvain's paintings.
Silwanfang looked for evidence of infringement from Artron's auction records and physical publications, and the number of infringing paintings increased from a few initially found to 122 that the court finally found. Wu Tao revealed that the judgment in the case is nearly 200 pages, most of which is devoted to assessing the infringement of the works involved in the case. This work was cumbersome and complicated, and the judge placed Sylvain's rights works on the left and Ye Yongqing's infringing works on the right, comparing them in terms of color, line, character structure, and overall layout. There are different types of infringement involved, some as a whole and some as partial, "like a combination of permutations".
Wu Tao, who has represented a large number of intellectual property litigation cases, said that the key to the comparison and evaluation of works of art is to assess whether the similarities are original, and the original earlier paintings constitute works, and the subsequent paintings cannot be the same or similar to the earlier works. For example, if you also paint birds, suppose that the previous painter presented the bird as two large wings that were beautiful and upturned, plus a long, thin beak. If there really is such a form of bird in nature, then later painters can also depict it in this way, because such wings and beaks belong to elements of the public domain; If there is no such bird in nature, then the earlier painter's portrayal of the bird is original and constitutes a work of art, and if the later painting is the same or similar to the earlier work, it constitutes infringement. Such details require a "one-to-one comparison" between the rights work and the infringing work.
After the first instance was declared victorious, the news was published in the largest newspaper in the Dutch-speaking region of Belgium. "The European art community has also seen the determination and strength of China's intellectual property protection, which has played a huge role in promoting China's image of intellectual property protection." Wu Tao said.
Trauma and silence in the contemporary art world
This infringement has come to an end with the recent verdict, but its impact on the art world is far from disappearing. "As in all industries, it takes a long time, opportunity and various people to make up for the collapse of credibility," Wang pointed out. ”
"When it happened, the various operations carried out by his PR team made it even more untrustworthy." For example, Wang Kaimei talked about the tolerance of copying and imitation in ancient Chinese art, "The imitation of masters by ancient masters and plagiarism are two different things. ”
Wang Kaimei is saddened that for the contemporary art world, Ye Yongqing's generation originally represented a very important era of enlightenment. The Southwest School and Shanghai Abstraction, which were born at that time, laid the foundation for Chinese contemporary art and formed their own position in the international arena.
Liu Huatong analyzed that, similar to Ye Yongqing, some Chinese contemporary artists were exposed to plagiarism in the 1990s, all of which were taking advantage of information asymmetry. "China's contemporary art scene was integrated into the world in the mid-1990s, for example, participating in the Venice Biennale in Italy and the São Paulo Biennale in Brazil, and the real connection was established after 2000, and the Internet popularization was also after 2000. He copied it at the time, because China's artistic exchanges with the world were not so frequent, it was not easy to be exposed, and intellectual property rights were not yet (explicitly) regulated. ”
Considering the time of circulation of the infringing work, this major plagiarism case lasted for more than 25 years. Over the years, Ye Yongqing's infringing paintings have continued to be published, auctioned, and exhibited, but why was it not exposed until the discovery of the owner in a foreign country? Liu Huatong said, "First of all, art is very niche; Second, the interests of various groups of people in the art world are mixed. Under normal circumstances, for example, the person who bought Ye Yongqing's work should be defended, but they will not expose it - 'I bought it at a high price, once it is exposed that it is plagiarized, I am in the secondary market (auction), can I get my hand?' It's an asset loss for me'. ”
After Ye Yongqing's infringement verdict, Southern Weekend reporters tried to contact a number of industry insiders, most of them were reluctant to discuss too much, some people were worried about "offending people, offending the Sichuan Academy of Fine Arts", and one curator responded that "I feel that it is difficult to participate, he used to be a very good and respected elder, but the whole thing and the way of responding are unacceptable." When asked by Southern Weekend if it was possible to find contemporary artists to talk about the incident, Liu Huatong said that he reposted the news in his circle of friends, but his painter friends were basically silent, "You don't expect the art world to talk openly about this on a large scale."
In the field of curation, there is currently no mechanism to avoid the participation of infringing works, and it is entirely up to the curator to check it. Wang Kaimei told Southern Weekend that she had formed some methods for selecting artists and works. Before deciding to do an exhibition, she would visit the artists' studios and ask them questions such as "Where did your painting come from, where did your action, this shot, and the relationship between the thing you are focusing on and you?" Many of the young people she contacted were post-80s and 90s, and when she talked to them about the "books and audio" she usually dabbled in, she had a grasp of the scope of this person's knowledge.
"The process of tracing the origin is to make sure that the road you have traveled is real, not to say that this thing appears in front of you in a flash." In Wang Kaimei's view, 100% originality in art does not exist, and an artist's creation should be examined from the perspective of sincerity. Similarly, in Ye Yongqing's infringing paintings, she does not see the continuity of her creation, and the content he writes is separated from the background of personal growth, which inevitably makes people wonder: "What is the relationship between this cross and me, I don't have such a window at home, why should I paint it like this?" ”
In a sense, plagiarism and imitation are one of the persistent diseases of Chinese contemporary art. Contemporary art originated from the West, and big-name international artists who led the trend appeared in art fairs and exhibitions, playing a kind of call-to-action influence. "If you're the one following the trend, you're going to lose your way in the end." Wang Kaimei analyzed that under the trend of anti-globalization after the epidemic, Chinese contemporary artists paid more attention to the domestic market.
Liu Huatong is personally pessimistic about the frequent plagiarism in the contemporary art world. Wang Kaimei also has deep worries, she sees that the two precious artistic qualities of "sincerity" and "adventure" are constantly peeling off today, "If the treasures obtained by artists are recognized in the art market, and if this development, the most important thing in art is to think independently, reflect reality, and have a relationship with the world, with the surroundings, and with their own hearts, these things that require sincerity to bear will be less and less." ”
Southern Weekend reporter Zhu Yuan
Editor-in-charge: Liu Youxiang