Plagiarism and copyright infringement are often misunderstood as being the same, but are not: they may overlap, but are separate wrongs. Plagiarism is a violation of ethical norms and policies, typically in academic and professional disciplines, but is not necessarily unlawful. Plagiarism connotes appropriation of another’s original work as one’s own without acknowledging the work of the original author. Academic convention allows plagiarism to be avoided by, for example, using literary quotation marks and/or including a reference note to a full bibliographic listing of sourced authorship. The word derives from the Latin noun plagiarius: kidnapper.
Copyright infringement is an unlawful violation of an author’s exclusive intellectual property rights to control use of their original work. In other words, stealing another artist’s work and publishing it as one’s own original creation risks infringing the original author’s copyright and moral right to be identified as originator. However, copyright legislation worldwide has embraced the academic convention for avoiding plagiarism, by permitting fair use/dealing with another’s original work for limited purposes including, for example, non-commercial research or criticism or review or quotation – so long as sufficient acknowledgement is given of the original work’s author.
In Anglo-American common law systems, authors’ intellectual property rights are typically split between exclusive economic rights (to reproduce, publish, distribute, communicate, adapt an original work, and so on); and personal rights (to be identified as the author of an original work, and to prevent its distortion or mutilation or derogatory treatment). The bundle of economic rights is invariably labelled as copyright; and personal rights are classified as moral rights.
In civil law systems, which originated in 19th Century continental Europe and have since been adopted and adapted by most countries in the non-Anglo/American world, authors’ personal rights are prioritised – driven by a philosophical and ethical view that an author’s personality is inseparable from their work. Accordingly, authors’ intellectual property rights are typically undivided and form a unified collection, invariably described in civil law legislation not as copyright, but as ‘the author’s right’ (in France, for example, as le droit d’auteur). In civil law countries’ courts, authors’ rights lawsuits are often referred to – and are translated into English – as allegations of plagiarism.
A court case recently decided in mainland China, which operates a civil law system, concerned violation of an artist’s rights. In a rare publication of an authorised English language translation of the court’s final judgment, the Chinese court throughout referred to the issues involved and arising as being questions of plagiarism.
Ye Yongqing was the defendant artist, who was also a professor at the prestigious Sichuan Fine Arts Institute, from which he graduated in 1982. Over a forty-year artistic practice, his artworks had been acquired by major public-facing institutions and private collectors, including high-profile figures such as Bill Gates and Rupert Murdoch. A prominent presence in China’s domestic auction market, Ye’s artworks had regularly fetched between $200,000 and $500,000 USD, reaching a record price of over $1 million in 2011.
Christian Silvain was the complainant artist, is Belgium-based, and studied at the Academy of Fine Arts in Liège. His works, combining painting and collage, are included in the collections of the Centre Pompidou in Paris, Museum of Modern Art in New York, and Stedelijk Museum in Amsterdam; and are typically priced between €5,000 and €15,000 EUR ($6,000-18,000 USD).
The legal dispute began in 2019, when Silvain read an article published in the Belgian newspaper Het Nieuwsblad, highlighting striking similarities between both artists’ works. Silvain immediately conducted wide investigations and found that Ye had exhibited another work in London, also strikingly similar to his own, at a group exhibition of China-based artists’ works. Then, an Amsterdam-based gallery dealer, familiar with Silvain’s work, reported to him having recently seen a ‘substandard version’ of one of Silvain’s paintings.
Later that year, Silvain first publicly accused Ye of ‘plagiarism’ in Belgian’s popular newspaper Het Laatste Nieuws, claiming that Ye had made substantial financial gains from copying his paintings for over 25 years. For example, Silvain said, ‘Birds, bird nests, bird cages, red crosses, airplanes – everything is there. Except my name. Otherwise, it looks exactly the same.’ Silvain’s recurring bird motifs in works throughout his career appeared to have been repeatedly included in Ye’s works since the early 2000s.
Towards the end of 2019, Silvain filed a lawsuit in Beijing’s Intellectual Property Court (BIPC) accusing Ye of copying 87 of his works between 1993 and 2018. The suit claimed that most of Silvain’s violated works were originally created by him in the 1980s, and that Ye had produced and exhibited and sold remarkably similar works in the 1990s. Silvain also demanded over ¥50m CNY (around $7m USD) in damages, and Ye’s public apology. Ye contested many claims, and cross-sued Silvain for defamation of character. The BIPC tried together Silvain’s claims and Ye’s defamation counter-suit.
In its 2023 judgment, BIPC ruled it was satisfied that Ye had first encountered Silvain’s paintings in the early 1990s, then went on to consider whether ‘plagiarism’ (‘copyright infringement’ was not the phrase translated) had occurred. Judicial considerations under China’s intellectual property laws closely resemble infringement/violation tests in most jurisdictions worldwide. BIPC examined the visual characteristics of the disputed works ‘from the perspective of an ordinary observer’; and, if viewed in their entirety and appeared to have only ‘subtle differences’ that an ordinary observer was likely to ignore, the court could determine them to be ‘substantively similar’.
Moreover, BPIC reasoned that when the number of disputed works was large (as in this case) all the works involved could be considered as a whole, together with other relevant factors including the original artist’s personal creativity and method and style. All in all, such considerations would enable a comprehensive judgment to be made as to whether plagiarism had occurred. The BIPC examined all the disputed works accordingly, and ruled that infringement of Silvain’s artist’s rights had occurred because Ye’s allegedly infringing works were ‘substantively similar’ to Silvain’s pre-existing works.
BIPC ordered Ye to cease infringing activities forthwith, to issue a public apology in a Chinese newspaper, and to pay Silvain ¥5m CNY (around $700,000 USD) in compensation – believed to be a record damages award in China in any fine art case. Ye’s counter-claim for defamation was dismissed. Both parties were granted the right to appeal the court’s decisions.
Ye appealed to the High People’s Court of Beijing Municipality and handed down its appellate judgment in January 2025, which upheld BIPC’s decisions. The court confirmed that 122 of Ye’s works had infringed 87 of Silvain’s, and the financial damages award. Ye was ordered to issue an apology in a major Chinese newspaper within ten days, and warned that failure to comply could result in imprisonment.
On 23 January 2025 Ye published his apology in China’s Legal Daily publication, as follows: ‘I, Ye Yongqing, have received the final judgment of the Beijing Higher People’s Court for the copyright dispute with Christian Silvain. The appeals court upheld the original judgment … and ruled that some of my works infringed. I respect the court’s judgment, sincerely accept the criticism, review the lessons, and sincerely apologize to Mr. Silvain.’
Legal Daily is a leading state-owned publication circulated throughout China, and is supervised by the Chinese Communist Party’s Central Political and Legal Affairs Commission. It focuses on legal developments and important court rulings within the country, and is the key source of information on Chinese legal matters for the public and legal professionals.
The outcome of Silvain’s court case, followed by Ye’s published apology, caused widespread indignation across Greater China. Some of Ye’s collectors accused him of fraudulently selling works as his own originals. Several institutions removed Ye’s works from their collections and/or replaced them with Silvain’s. Jia Fangzhou, a leading art critic and curator and academic, publicly commented that Ye’s decades-long actions ‘humiliated all of Chinese modern art.’
This is a landmark art law case: it is the first time a foreign artist has won an intellectual property rights violation claim against a China-based artist in a Chinese court. Reliable reports of court cases tried in mainland China are seldom seen in the West, especially when China’s courts rule in favour of Westerners. It is therefore commendable that the courts in Silvain’s case not only demonstrated judicial impartiality and competence in dealing with the art and law issues involved and arising, but also authorised an English language translation of their processes and reasonings.
As for Ye, the case has been widely regarded within China as a national cultural scandal, and has severely damaged his character and reputation – even stimulating public protests from art students. Ye’s published apology has also been strongly criticised online, for example: ‘He did not admit plagiarism, but only said he lost the case. He apologised because the court made him … The platform on which he chose to publish the apology and the wording showed his insincerity …He should also apologise to the collectors who spent a large sum of money on his work.’ Ye has not held an exhibition of work since 2018.
As for Silvain, he says he is ‘pleased … satisfied’ with the eventual Chinese judicial support for his plagiarism lawsuit, despite having been awarded a far lower sum in damages than he had claimed. And, when Ye complies with the court’s order to pay him compensation, Silvain plans to use the money to meet his lawyers’ fees and support his many collaborators. He continues to pursue his Belgium-based practice.
Henry Lydiate is an art lawyer and adviser to www.artquest.org.uk.