|
|
|
Wu Guanzhong v. Shanghai Duoyunxuan and Hong Kong Wing Sing Fine Arts Auctioneers (A case involving sale of a fine art work with a fake autograph)
|
|
吴冠中诉上海朵云轩、香港永成古玩有限公司出售假冒其署名的美术作品纠纷案
|
|
|
|
Wu Guanzhong v. Shanghai Duoyunxuan and Hong Kong Wing Sing Fine Arts Auctioneers (A case involving sale of a fine art work with a fake autograph)
(A case involving sale of a fine art work with a fake autograph)
吴冠中诉上海朵云轩、香港永成古玩有限公司出售假冒其署名的美术作品纠纷案
|
|
|
|
|
|
|
Wu Guanzhong v. Shanghai Duoyunxuan and Hong Kong Wing Sing Fine Arts Auctioneers
(A case involving sale of a fine art work with a fake autograph) | | 吴冠中诉上海朵云轩、香港永成古玩有限公司出售假冒其署名的美术作品纠纷案 |
BASIC FACTS | |
|
Plaintiff: Wu Guanzhong, male, born in July 1919, professor of Central Academy of Arts and Design | |
原告：吴冠中，男，１９１９年７月生，中央工艺美术学院教授。 |
Attorney: Shen Zhigeng, lawyer of Beijing Zongheng Law Firm. | |
委托代理人：沈志耕，北京市纵横律师事务所律师。 |
Attorney: Liu Sanhong, lawyer of Shanghai Tianren Law Firm | |
委托代理人：柳三泓，上海市天人律师事务所律师。 |
Defendant: Shanghai Duoyunxuan Auctions Co., Ltd. | |
被告：上海朵云轩。 |
Legal representative: Zhu Junbo, general manager of this company. | |
法定代表人：祝君波，总经理。 |
Attorney: Dai Xiaojing, employee of this company. | |
委托代理人：戴小京，上海朵云轩职工。 |
Attorney: Tao Wuping, lawyer of Shanghai Shenda Partners. | |
委托代理人：陶武平，上海市申大律师事务所律师。 |
Defendant: Hong Kong Wing Sing Fine Arts Auctioneers (International) Limited | |
被告：香港永成古玩拍卖有限公司。 |
Person in charge: Huang Hao | |
负责人：黄豪。 |
Attorney: Wang Yinsheng, lawyer of Shanghai Shifang Law Firm. | |
委托人代理人：王寅生，上海市十方律师事务所律师。 |
In respect of disputes over copyright with the defendants, Shanghai Duoyunxuan Auctions Co., Ltd. (“Shanghai Duoyunxuan”) and Hong Kong Wing Sing Fine Arts Auctioneers (International) Limited (“Hong Kong Wing Sing”), the plaintiff, Wu Guanzhong, brought an action in the No.2 Intermediate People's Court of Shanghai. | |
原告吴冠中因与被告上海朵云轩和被告香港永成古玩拍卖有限公司（以下简称拍卖有限公司）著作权纠纷案，向上海市第二中级人民法院提起诉讼。 |
The plaintiff, Wu Guanzhong, alleged that: on October 27, 1993, the defendants, Shanghai Duoyunxuan and Hong Kong Wing Sing, jointly auctioned a painting named Mao Zedong Portrait in Hong Kong, on which there were a line of words as “Cannon the Command, my own placard, Mao Zedong” and an inscription “painted by Wu Guanzhong at Central Academy of Fine Arts and Design in 1962.” Before this auction, the plaintiff notified Shanghai Duoyunxuan through relevant authorities that this work was a counterfeit with a fake autograph of the plaintiff. However, after receiving the notice and a written letter, Shanghai Duoyunxuan still auctioned it jointly with Hong Kong Wing Sing, and even presented expert opinions to certify that this was the work of Wu Guanzhong, as a result of which this counterfeit was bought by someone in an amount of HKD 528,000. The acts of the two defendants had infringed upon the copyright of the plaintiff and inflicted undue damage upon the reputation and the sale of the genuine work of the plaintiff. Therefore, the plaintiff requested the court to order the defendant to desist from infringement, eliminate effects, make a public apology and compensate for economic losses of HKD 528,000. | |
原告吴冠中诉称：１９９３年１０月２７日，被告上海朵云轩、拍卖有限公司联合在香港拍卖出售了一幅画《毛泽东肖像》，画上有“炮打司令部，我的一张大字报，毛泽东”字样，落款为“吴冠中画于工艺美院一九六二年”。拍卖前，曾通过有关单位转告上海朵去轩这幅系假冒原告署名的伪作。但是，上海朵云轩在接到通知和书面函件后，仍与拍卖有限公司联合拍卖，甚至出具专家鉴定意见称，这是吴冠中的作品，致使该伪作被他人以港币５２．８万元购去。两被告的行为侵犯了原告的著作权，使其声誉和真作的出售均受到了不应有的损害。为此，请求法院判令被告停止侵害、消除影响、公开赠礼道歉，赔偿经济损失港币５２．８万元。 |
The defendant, Hong Kong Wing Sing neither made a plea nor appeared before the court. | |
被告拍卖有限公司没有答辩，亦未应诉。 |
PROCEDURAL POSTURE | |
|
In an open trial, the No.2 Intermediate People's Court of Shanghai found that: the defendants, Shanghai Duoyunxuan and Hong Kong Wing Sing entered into an Agreement in December 1992, agreeing that they would jointly hold auctions of Chinese modern calligraphies and paintings in March and September 1993 in Hong Kong, and they also reached agreement on the selection of auction items, profit distribution and other matters. On July 27, 1993, Shanghai Duoyunxuan air-expressed the auction items selected by it to Hong Kong as agreed on, and sent its staff to preside over the authentication, selection and consultation on the base prices of auction items collected overseas by Hong Kong Wing Sing. | |
上海市第二中级人民法院经公开审理查明：被告上海朵云轩和被告拍卖有限公司于１９９２年１２月签订《协议书》，双方约定于１９９３年３月和９月在香港联合主办近代中国书画拍卖会，并对拍卖品的选择、利润分成等事项达成协议。１９９３年７月２７日，上海朵云轩按照约定将其选定的拍卖品空运至香港，并派员对拍卖有限公司在海外征集的拍卖品主持鉴定、选择、商定底价的工作。 |
On October 2, 1993, a Hong Kong client, Zhao, signed a Power of Attorney on Sale with the defendant, Hong Kong Wing Sing, to empower the latter to auction a painting named Mao Zedong Portrait carrying an autograph of Wu Guanzhong; the value of this painting was estimated to be between HKD300,000 and HKD350,000; and in the column of remark it was stated that the date of auction should be October 27, 1993, etc. The two parties also agreed on the auction commission, insurance, etc. In early October of the same year, Hong Kong Wing Sing compiled a Catalogue of a total of 382 auction items collected by it and supplied by Shanghai Duoyunxuan, with its front cover stating that: “Wing Sing Auctioneers (International) Limited and Shanghai Duoyunxuan will jointly sponsor an ‘Auction of Chinese Modern Calligraphies and Paintings and Ancient Paintings' at 2:30 p.m. on Wednesday, October 27, 1993.” The No.231 picture in the Catalogue was the Mao Zedong Portrait carrying an autograph of Wu Guanzhong, with a line of vertical words on the right upper corner as “Cannon the Command, my own placard, Mao Zedong” and a vertical inscription on the left lower corner as “painted by Wu Guanzhong at Central Academy of Fine Arts and Design in 1962.” The size of the painting was 38 cm in width and 66 cm in length, and the indicated estimated price was between HKD300,000 and HKD350,000. Besides the public distribution of the Catalogue, Hong Kong Wing Sing also gave 50 copies of the Catalogue to Shanghai Duoyunxuan. Before the opening of the auction, Shanghai Duoyunxuan presented the Catalogue to the relevant entities and individuals in Shanghai. | |
１９９３年１０月２日，在港客户赵某与被告拍卖有限公司签订《出售委托书》，委托拍卖有限公司拍卖署名吴冠中的画《毛泽东肖像》；估价为３０－３５万港元；备注栏中载明：拍卖日期１９９３年１０月２７日等。双方还就拍卖品佣金、保险等作了约定。同年１０月上旬，拍卖有限公司将其征集和上海朵云轩提供的拍卖品总计３８２件编印成《图录》，封面上载明：“永成古玩拍卖有限公司、上海朵云轩于１９９３年１０月２７日（星期三）下午２时３０分联合主办‘中国近代字画及古画拍卖会'”。《图录》中编号第２３１号图系一幅署名吴冠中的《毛泽东肖像》，右上角竖体草字为“炮打司令部，我的一张大字报，毛泽东”，左下角落款竖体草字为“吴冠中画于工艺美院一九六二年”，尺幅宽３８厘米，长６６厘米，估价标示为３０－３５万港元。拍卖有限公司除将《图录》向外界散发外，还给上海朵云轩５０册。拍卖会召开前夕，上海朵云轩将此《图录》赠送给上海有关单位和个人。 |
In the mid-October 1993, after knowing the above information, the plaintiff, Wu Guanzhong, considered that he had never painted the Mao Zedong Portrait and it was even ridiculous for the date of creation to be 1962. Therefore, he entrusted others to complain about it to the relevant authorities, trying to prevent the auction of this painting. On October 25 of the same year, Shanghai Culture Administration notified Shanghai Duoyunxuan by a document No.95 [93] that: “if the Mao Zedong Portrait was a counterfeit, it must be dropped forthwith, and the auction of it should stop; if there is any other counterfeit, this notice should also apply, and please report the review results to this administration.” To this, the defendant, Shanghai Duoyunxuan responded that: this painting was a work accepted by Hong Kong Wing Sing in Hong Kong; the auction was held in Hong Kong and presided over by a Hong Kong legal person, and the decision right rested on Hong Kong Wing Sing; and it would certainly send the above opinions and author requirements to Hong Kong Wing Sing, and try to persuade it to drop this work. Afterward, Shanghai Duoyunxuan called many times its visitation panel that was observing the auction in Hong Kong to ask it to convey the notice of the relevant authority and opinions of Wu Guanzhong to Hong Kong Wing Sing and also conduct authentication of this painting. After receiving the notice and opinions forwarded by Shanghai Duoyunxuan, Hong Kong Wing Sing immediately invited relevant Hong Kong experts to conduct authentication of this painting, who after analysis of such aspects as creation features concluded that the grounds of Wu Guanzhong for holding this painting counterfeit were untenable and affirmed that this work was created in 1966, not 1962; and learned information on the purchase of the painting from its client who offered a guaranty. Hong Kong Wing Sing presented a proof stating that: “The representation, publicity, bidding and other matters in relation to the above work are all conducted by this company in line with the provisions, and were unrelated to Shanghai Duoyunxuan … This company has decided that it may be auctioned according to Hong Kong law and auction rules of this company.” In late October 1993, the experts from Shanghai Duoyunxuan went to Hong Kong to participate in the action work. On the afternoon of October 27 of the same year, the auction of Chinese modern calligraphies and paintings and ancient paintings sponsored by Hong Kong Wing Sing and Shanghai Duoyunxuan was held in Hong Kong Kawloon Hai Sing Hotel, and the Mao Zedong Portrait was sold at a price of HKD528,000, of which HKD48,000 was auctioneer commission.
．．．．．． | |
１９９３年１０月中旬，原告吴冠中获悉上述情况后认为，自己从未画过《毛泽东肖像》，创作日期落款为一九六二年更是荒唐可笑。于是，吴冠中委托他人向有关部门反映，设法制止对该画的拍卖。同年１０月２５日，上海市文化管理处以沪文社字（９３）第９５号文通知上海朵云轩：《毛泽东肖像》“如确系伪作，须迅速撤下，停止拍卖；如有其他伪作，也须照此办理，并请将核查情况上报我处。”对此，被告上海朵云轩作出如下答复：该画系拍卖有限公司在香港接受委托作品；拍卖活动在香港举行并由香港法人主持，决定权在拍卖有限公司；一定向拍卖有限公司转告上述意见及作者要求，尽力说服撤下该作品。之后，上海朵云轩多次电告其在港观摩拍卖的考察组，向拍卖有限公司转达了有关部门的通知及吴冠中的意见，同时也对该画进行了鉴定。拍卖有限公司接到上海朵云轩转告的通知意见后，当即请香港有关专家对此作品进行了鉴定，从创造特点等方面进行了分析，认为吴冠中称假的理由不能成立，同时确认此作品创造于一九六六年而非一九六二年；并向此作品的委托人了解了购买《毛泽东肖像》画的情况，并由委托人作了担保。拍卖有限公司学出具证明称：“有关上述作品的代理、宣传、竞拍等事项均由本公司照章办理，与上海朵云轩无关……本公司根据香港法律以及公司的拍卖规程，我们可以决定拍卖。”１９９３年１０月下旬，上海朵云轩专家赴香港参加拍卖工作。同年１０月２７日下午，由拍卖有限公司和上海朵云轩联合主办的中国近代字画及古画拍卖会在香港九龙海城大酒店举行，《毛泽东肖像》以５２．８万港元成交，其中４．８万港元为拍卖人所得佣金。
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥500.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|