The Question of Lu Xun's Right to Likeness:
Intellectual Property and China
Dr. Peter Feng
Visiting Professor, Harvard Law School
March 10, 2002

Leading his own firm the Kollen House Consulting Group (KHCG) in Massachusetts and teaching as Professor of Law in both Harvard Law School and Oriental School of Law and Business, East China Normal University in Shanghai, Dr. Feng skillfully integrated his practical experience with his scholarly background, as he did in his extensive writing on law, literature and religion. On March 10, he delivered a thought stimulating talk to a roomful Harvard China Review audience "The Question of Lu Xun's Right to Likeness". Through a fascinating case about Lu Xun, a giant of modern Chinese literature, selections of whose writings are studied by all Chinese school children, Dr. Feng illustrated how Lu's case pushed the frontier of intellectual property law in China while raising profound questions at the same time about the intricate relations between social and economic development and legal development.

As Lu Xun's image has been widely used by stamp makers, credit card makers, restaurant owners and other businesses for profit-making purposes, Zhou Hai-ying, Lu's only son, brought a case against these businesses in the mid-1990s and asked the court to stop them from using his father's image. His appeal of the local court's adverse ruling to a higher court, combined with his father's fame, made it a much-celebrated case, which is complex and multi-faceted.

First of all, does Zhou satisfy the legal standing of a plaintiff? Does a dead person have a right to likeness? If so, in what domain for how long? Is Zhou qualified to protect this right after his father's death by the sheer fact that he is Lu's only son? Based on conventional Chinese law, a dead person does not have rights to anything intangible, such as name, likeness, privacy and the like. But Zhou's lawyer argued that a dead person's right to likeness should be interpreted as his interest in his likeness, which in this case still exists after his death, affecting his living relatives' feelings and interests; therefore, this interest to likeness should be protected. In China, the relationship between a dead person and his living relatives tends to be closer than that in the West. So since 1989, Chinese law acknowledges the need for preventing defamation of dead persons. It was formalized in 1993 that close relatives of a dead person have the right to sue to stop defamation of the dead.

Second, does the plaintiff have a substantive right? On this question, Dr. Feng discussed three aspects: the nature of the case, imported institutional framework, and ethical interpretations. He sees Zhou's demand as a typical demand rising from capitalistic economic development. Lu's widely recognized image obviously has a commercial value after his death, so there is interest involved; and thereby Lu's image is a property, which is legitimate and publicly acknowledged in today's China. When a commercialized personality is bundled with tangible goods, it becomes a symbol similar to a trade mark, independent of the person, even if he is dead.
With respect to the imported institutional framework, Dr. Feng pointed out the inverted order of the Chinese legal establishment. For example, Chinese intellectual property law is more elaborate on paper than laws on tangible property, whereas in the West, property law came much earlier than intellectual property law. In the Anglo-Saxon case-law tradition, legal decisions follow precedents. In Chinese legal tradition, rights originate with the state and are defined in written statutes or regulations. A new law is often established on the basis of negating an existing law. This pattern repeats itself, giving a transitory nature to Chinese laws, which is one of the reasons for Chinese lack of respect for or willingness to abide by laws.

On ethical interpretations, Dr. Feng said that the modern legal profession doesn't like talking about the ultimate ethical goal of the legal framework, but believes in laws' natural evolution and development. This line of thinking leads to a legal interpretation that laws must protect the image, the trade mark for their commercial value; otherwise this value will be lost. But this interpretation is not appropriate for Lu's case because there is a question about whether protection of commercialized personality in a legal framework that protects property is socially desirable. Since the right to publicity in practice is an issue only for social celebrities, a minority of the people, it is fundamentally different from basic human rights. It is not one of those "natural" or "common" rights, defended by John Locke. The justification for protecting this right of publicity of a dead celebrity should be very different from that for human rights.

Dr. Feng then led the audience to consider the instrumental value of private property, originated by Aristotle. Aristotle argued that private ownership comes from human nature of loving oneself, but this self-love must be moderate. Only by recognizing private ownership can it be meaningful to give things to others and to help others. Thus private ownership is an instrument to manifest these two virtues, not an end in itself. Property cannot create value; its value only manifests itself when humans use it in action. Aristotle emphasized the limitations of property through moderation, which varies depending on what purpose it serves.

Dr. Feng concluded that extreme protection of property limits the freedom of imitation, which is a prerequisite for competition, and thereby allows monopoly. The question then is to what degree to protect property. This question itself corresponds to a particular stage of capitalistic development, and is unique to today's China, where capitalist economic behaviors and institutions are becoming increasingly prevalent.