Time back to the Renaissance in the fifteenth century, when Leonardo da Vinci was still in the Florentine Verrocchio workshop to learn to paint eggs, according to the teacher's instructions to draw hundreds of eggs, he finally painted the perfect egg, after that, he painted apples, landscapes, figures, etc. according to the requirements of the studio teacher Verrocchio, the painting skills gradually matured, with the blessing of talent and diligence, Leonardo da Vinci gradually grew into a well-known painter at home and abroad.
Obviously, the treatment of the painter before and after fame is completely different, Da Vinci's paintings have changed from the lack of interest in the past to "hard to find", close friends and Da Vinci discussed whether they could give away paintings, so that Da Vinci felt that "duck (press) pear (force) mountain", after all, he could not make a special trip to paint in order to meet the expectations of his friends, but it seemed that there was also a hurt side to refuse, at this time, he suddenly thought of a logical and best of both worlds, so he confirmed to his friend:
As long as it's my painting? Assignments are also available? ”
Of course. In fact, the assignments are better and more collectible. Leonardo da Vinci's friend smiled and said, for the sake of convenience, let's call him Mr. B.
Leonardo da Vinci clapped his hands: "Perfect, it just so happens that I still have a lot of study work at Verrocchio's workshop, so I'll give it to you." ”
Mr. B was a safe man, and immediately asked Leonardo da Vinci for a copy of the "Letter of Gift": "You are so famous now, let's sign it in advance to confirm." I'm afraid others will get ahead of me. “
Leonardo da Vinci readily agreed to the request. However, when Mr. B and Leonardo da Vinci arrived at the Verrocchio workshop, the owner of the workshop showed a look of embarrassment: "Oh, those studies have been sold a long time ago, and the workshop was not doing well at that time, so they sold some of the well-painted studies to interested rich businessmen X."
Leonardo da Vinci was angry, and Mr. B was even more angry, he felt that his cake had been snatched away by someone else.
Mr. B confronted the wealthy businessman X: "Please return the painting of Leonardo da Vinci to me." “
The rich merchant X leisurely brewed a pot of tea: "Taste it, this is tea from the far east—you say that Leonardo da Vinci's study is yours, what proof do you have?" ”
Mr. B took out Leonardo da Vinci's gift book, and the rich businessman X flipped through the gift book and read it carefully, and then returned it to Mr. B, "Unfortunately, this does not prove that Leonardo da Vinci's painting is yours." “
Mr. B was so excited that he was about to drop the teacup: "This is signed by Leonardo da Vinci himself!" Rich businessman X said lightly, "But these exercises were commissioned by the studio at that time, and the studio was almost unable to hold on, and the boss found it and said that he was willing to help me create some art works, and I agreed, and at that time it was also an old friend who was helping an old friend, who would have thought that there would be a Leonardo da Vinci later." I have here the commission agreement that I signed with the studio at that time. “
The first opinion was that since the Verrocchio workshop was commissioned by the wealthy merchant X at that time, and da Vinci was an apprentice in the workshop at that time, then it was natural that the work belonged to the wealthy merchant X, not to mention that the commission agreement was obviously signed earlier than the gift.
On the other hand, the opposing view is that the opinion of the original creator of the painting should be respected, and that the transfer of the work by the studio without the permission of Leonardo da Vinci is actually "water without roots" and "fountain without source", which is invalid, and should naturally be awarded to Mr. B in accordance with the opinion of the original author's gift.
Ladies and gentlemen, what do you think, and if you are the chief judge, to whom will Leonardo da Vinci's study be awarded? In fact, around the above two schools of opinion, two schools of opinion have gradually formed until now, that is, the "original school" and the "employer school".
Contrary to what many people have in mind, the United States, which hyped up the sanctity of originality, insists on "employers": The United States copyright law establishes the concept of work made for hire, and Article 201(a) of it states that the author of a work is the creator of the work without any assignment, unless it is a "work created for hire." In other words, works created by employees of companies or enterprises will undoubtedly belong to the employer, in addition, since 1955, the United States has gradually adopted a process of legislative amendment to allow some works of commissioned works (i.e., similar to those created by wealthy businessmen x commissioned art studios above) to be judged according to the principle of hired works, and finally clarified in the Copyright Act of 1976 that commissioned or commissioned works are used as part of the creation of collective works and as an integral part of films or other audiovisual works. As a translation, supplement, edit, instructional text, test questions, test answer materials or atlases, the work shall be deemed to be a work for hire if expressly agreed to by each party in a signed writing. In contrast, the German Copyright and Related Rights Act is more focused on protecting the interests of the author, but if the author is an employee, the judge can also presume that the copyright belongs to the employer based on the nature of the employment contract – that is, according to the American or German copyright law, Leonardo da Vinci's study must have belonged to the wealthy businessman X. Thinking about it from another angle, this is also in line with the usual concept of capitalist society, that is, the capital side has the main right to speak.
In order to encourage the development of innovation, China's copyright law pays more attention to the interests of "originality", even in the employment relationship: according to Article 18 of the Copyright Law, a work created by a natural person to complete the work tasks of a legal person or unincorporated organization is a service work, and except as provided in paragraph 2 of this article, the copyright is enjoyed by the author, but the legal person or unincorporated organization has the right to use it preferentially within the scope of its business. Within two years of the completion of the work, without the consent of the unit, the author shall not permit a third party to use the work in the same way as the unit. In other words, except for special works such as engineering design drawings, product design drawings, maps, etc., even if the employee is employed, the works created during his work in the unit are not due to belong to the unit, so according to this logic, Leonardo da Vinci's study must belong to Leonardo da Vinci, and the studio cannot obtain the copyright as a matter of course by virtue of its status as an employer.
Except for special works such as engineering design drawings, product design drawings, maps, etc., even if the work created by the employee during his or her work in the unit is not due to the employer, then according to this logic, Leonardo da Vinci's study must belong to Leonardo da Vinci, and the studio cannot obtain copyright as a matter of course by virtue of its status as an employer.
However, in the case of commissioned works (such as the commissioned creation agreement signed between Rocchio and Fu Shang X above), Article 19 of the Copyright Law of the People's Republic of China also stipulates that the ownership of the copyright of the commissioned work shall be agreed upon by the client and the trustee through a contract. If the contract does not expressly stipulate or no contract is concluded, the copyright belongs to the trustee.
In such a situation, Mr. B and the wealthy businessman X may still fight:
Before 2023, most of the relevant ** (CNKI Search) only conducted a detailed analysis of commissioned works and service works, but did not mention in detail the above contradictions between the two.
China Copyright Magazine, Issue 1, 2023, "Unification and Reshaping of Copyright Ownership Rules for Commissioned Works and Service Works".Research on Copyright Rule of Law (Professor Zhang Weijun of Guanghua Law School, Zhejiang University) formally proposed: in the case that the commissioned work is a service work, the trustee in the entrusted creation contract should be the unit, but when the client wants to obtain the copyright of the commissioned work, unless it is a special service work, the prior consent of the employee (author) of the original general service work must be obtained. Otherwise, it is an invalid act of disposing of the rights of others and should not be recognized by law, so whether the unit, as the trustee, agrees in the entrusted creation contract that the copyright belongs to the client must be valid, depends on whether the unit is the original subject of the copyright of the work (in the case of special service works) or whether it has obtained the consent of the original right holder (in the case of general service works), and thus has the right to dispose of the copyright of the work.
In other words, in China, there is a high probability that Mr. B will be able to obtain Leonardo da Vinci's study. There have been similar cases in reality, and the "People's Court Daily" published a case on May 11, 2021 "After using the authorized work, it was sued for infringement by the author's original owner": from 2013 to 2016, Fu Mounan put forward creative ideas and presided over the creation of the "Three Sheep Kaitai" art works including the art work "Longhorn Pattern Sheep" involved in the case, after Fu Mounan resigned, in April 2015, Fu Mounan issued a letter of authorization, The defendant company produced and sold the works of "Sanyang Kaitai", and then a company sold the series of works in its **. In December 2015, the plaintiff Xin Mouhong Company (i.e., an affiliated company of Sai Moujia Home Decoration Company, where Fu Mounan worked for Nanyuan) obtained a work registration certificate for the art work of "Longhorn Pattern Sheep". In July 2017, Fu Mounan obtained the work registration certificate of "Sanyang Kaitai" art works. The presiding judge of this case held that this case distinguishes the rules for the determination of service works and their authors in accordance with the law, clarifies the position that the registration certificate of the rights of the work and its author is not the direct basis for judging the copyright, and adheres to the principle that "the copyright is automatically obtained by the author from the time the creation of the work is completed". At the same time, this case strictly distinguishes between service works and legal person works, emphasizing that the factor of "creating on behalf of the will of the legal person" is not equivalent to the unit's decision to create, the employee's discussion of creative ideas, or the suggestion of amendments during the creation process, etc., so as to determine that the disputed art work should be a service work rather than a legal person's work. In addition, this case determined the use of service works in accordance with the law, and after clarifying the attributes of the service works in dispute and the copyright owner should be the creator, the use of service works was accurately applied, emphasizing that legal persons only have the right of priority to use employees' service works within the scope of business in accordance with the law, but have no right to transfer the copyright of the works.