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Choice of Law Problem in China Copyright Sale Contract

Today I am going to talk about a case I discussed with my colleagues in our law firm. I was asked whether I have any thoughts on this?

- A would be seller has an offer to by photographs made by her husband. The pictures were literally taken in another country decades ago.
- The deceased husband was a noted photographer in this other country. He published some of his own works. However, the collection runs in the 100s or 1000s and there may be extra copies of works for hire the deceased photographer kept for himself.
- Seller shouldn't warrant all title, exclusive rights, etc, as she simply doesn't know the status of copyright for each picture.
- Can she simply assign whatever rights she has without guaranteeing anything?

 

With the caveat of any choice of law issues that would make non-China law apply, sure – just like a quitclaim.  Be clear that she’s disclaiming any warranties or representations of ownership / rights / ability of recipient to exploit.  Get indemnities as well.  Not only could they be owned by someone else, they could be in the public domain.  Does she have “hard copies” she can transfer?  She likely owns those.  Transfer of those won’t vest any copyrights, but they could have value as prints.

 

Depending on the nature of the photos and the stature of the photographer, it may be worth getting an appraisal if they are high quality original prints in good condition made by the photographer direct from the source.

I hate to barge in like a bull in a China shop after some sound advice, however one issue sticks out in my mind, partly for my own edification. Given choice of law issues, what about  the moral rights to the work? Do the transfer on death? Are the alienable? Would a "quitclaim" need a carve out for such?

Moral rights are very narrow in China, generally only applicable to a limited subset of visual arts; however, they’re very powerful in some European countries (notably France).  In China they are waivable (and one author can waive on behalf of the other!)  The governing law would determine that, and as that goes (like with anything), the buyer would be stuck with the governing law.  Governing law is ... well, the law, something that is more ‘caveat emptor’ (although it can’t hurt to note/disclaim issues in an assignment).  Representations of copyright ownership, though, are personal, and I would be much more concerned that those disclaimers are clear.

Intellectual property law cases emerge a lot and as an IP lawyer you have to keep up with the pace of IP law development.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.