Traditional Chinese painting Master Xu Beihong’s works embroiled in NFT copyright dispute

In 2021, the global NFT (Non-Fungible-Token) market ushered in a major explosion, and waves have also been made in the domestic NFT collection market, with a series of NFT collections combined with domestic traditional cultural IPs. Taking NFT of Dunhuang series as an example, it was a hit after being jointly launched by and Dunhuang Art Academy.


A natural link seems to have been generated between traditional art pieces and the latest technology, nevertheless, related legal disputes have arisen accordingly.


Last month, with the release of a batch of NFT collections, the protection of copyright for expired artworks has risen to public attention.


This batch of NFT collection is traditional Chinese painting master Xu Beihong's ink horse series, with 8 pieces in total, which are the most representative works among Xu’s masterpieces themed galloping horse. In the history of modern Chinese art, Xu Beihong's "horses" are iconic symbols, as Xu combined the realism of Western painting with the animation of traditional ink and brush of Chinese painting in his painting technique, which opened up a new era of art. Unfortunately, Xu passed away on September 26, 1953, at the age of 58, but his stallion drawings have been passed down, the original copies of which are worth a fortune.


The series of NFT collections was put up for sale on Tencent's NFT trading application "Huanhe" in May 2022 and sold out within a minute after its launch, showing its popularity. According to statistics, the total revenue from the sale of this work was 3,686,400 yuan.


But it was this sale that sparked a copyright controversy. On May 29, the operator of the Xu Beihong Museum of Art, Peon Generation, issued a statement alleging that the NFT collection of Xu provided for sale on the "Huanhe" platform was not authorized, which led to the suspicion of infringement. At the same time, Xu Beihong Museum of Art also argued that some of those NFT works sold by Huanhe were manufactured from counterfeits, and publicly commented that only the NFT collections on platforms such as "Shu Zi Mao" and "Jing Tan" had gained its authorization.


In the face of this accusation, Huanhe's reply was: "The collection currently released is exclusively authorized" and "We strictly control the authorization of the cooperation material and works, and the works on sale are all authorized before release".


By far, the two parties are still at an impasse.


In order to clarify the causes and consequences of this dispute, one should first clarify the concept of NFT collections. "NFT", is actually a token or code generated by a public blockchain platform through a specific process to identify a specific digital asset (e.g., text, image, audio, video, etc.). Each digital asset has a unique token, and each copy of a digital asset is referred to by a string of unique metadata, resulting in the effects of "uniqueness" and "scarcity", and therefore has special collection value.


Returning to the NFT copyright dispute over Xu Beihong's works, the NFT collection offered by the "Huanhe" platform is actually a digital version based on the original eight paintings of Xu’s "Horse" series.


According to the Chinese Copyright Law, the copyright protection period of a work is 50 years after the death of the author. In other words, 50 years after the author's death, the work enters the public domain and anyone can exploit its property rights, such as distribution and reproduction.


Therefore, based on this provision, Huanhe's distribution of the digital collection related to the work has no legal defects in copyright law, but since the original work must be used to create the digital collection, the focus of whether it constitutes infringement is whether Huanhe has the right to use the original Xu Beihong "Horse" series of paintings to create the digital version.


In response to this, the Huanhe platform replied: “Mr. Xu Beihong's death is more than 50 years, so the owner of the auction proceeds has independent authorization to cooperate with Huanhe," implicating that Huanhe's NFT collection release is based on the authorization of the owners of the original copies of "Horse" series of paintings, and there is no need for Huanhe to obtain consent from Peon Generation (Xu Beihong Museum of Art) or Xu’s descendants.


Of course, the Xu Beihong Museum of Art is not willing to take things lying down. From the public statement, in addition to the copyright infringement accusation, they also specifically mentioned that they own the trademark of "Xu Beihong", which is likely to be the entry point in the potential litigation against Huanhe over this issue.