竞天公诚律师事务所

艺术授权——艺术赋能产业发展的新动能及其风险管控

作者：奚敏洁时间：2020-01-16

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This article was firstly published in the Licensing International Special Edition in January 2020.

In the last thirty years, China has grown into the Top 3 of the World’s Largest Art Market, in 2011, China even took the largest share of the World Art Market, which represented 30% of the global art business sales revenue. Since then, China has been playing a stable role of being the No. 2 or No. 3 in the market. According to The Art Basel and UBS Global Art Market Report 2019, the global art business in 2018 reached US$67.4billion, China was the No. 3 in the market, representing 19% of the global art business sales revenue. Besides, according to the TEFAF Art Market Report: The Chinese Art Market (2019), China has more than 20 art fairs a year and over 4000 galleries now.

In China, people's passion and love for art are much more beyond art collection, instead, people are more interested in artistic lifestyle in which art are comprised and embraced in dining, drinking, playing,clothing, living, travelling, and almost in everything, in one word -lifestyle. Of all people who enjoy art as lifestyle, including these who crazily fought for the KAWS x Uniqlo T-shirts, these who were born in the 1990s- who love wearing the "Lu Duan" sweater jointly developed by Li Ning and the Palace Museum, or you and I who might fly to Guangzhou solely for the purpose of spending some time in Van Gogh SENSES Bistroin Guangzhou K11, to enjoy eating, drinking and playing, art inspires us all and makes us happy,thanks to the joy from art, art licensing and the industries it empowers. In your morning milk time, you start with a new Yili collection milk called"Satine Jersey British Treasure", per license from the British Museum, when you walk into the meeting room in office, a stunning new PC catches your sight, it is Lenovo's "AIO AIO 520X Max", which Lenovo newly developed per cooperation with the Palace Museum, presented as a co-work of high technology amd unique Chinese cultural heritage. You have a business trip to take, so you quickly pack with your Samsonite Keith Haring and run for airport, when you get there, an AR show is on in Terminal 1 hall, with Monet's classic paintings... As you may see, art is with you, empowered by art licensing...

Coincidentally, in art licensing, China (Hong Kong SAR included) has also grown into Top 3 in the world. According to the Annual Global Licensing Industry Survey 2019 Report, the United States, United Kingdom and China are Top 3 in the world in retail sales of licensed merchandise in art licensing, which represent 61%, 8.5% and 7.9% of the global total sales. In 2018, the global retail sales of licensed merchandise grew to US$280.3 billion, although art licensing constituted only 1% of that, it has been the category grew the fastest for consecutive recent years, with a YOY increase at 9.5% for Year 2017 and 2018, and a YOY increase at 39.4% for Year 2016 and 2017, which was much much higher than any of the other categories.

So, what is the magic power of art licensing, why it can empower industries? Let’s do an analysis step by step

What is art licensing? What rights are licensed under art licensing?

艺术授权，即Art Licensing，是指将艺术作品本身所蕴含知识产权、和/或创作该作品的艺术家个人品牌和/或收藏该作品的博物馆、基金会等机构品牌“一揽子”授权予第三方使用、开发或运营，由该第三方支付授权金的商业模式。

因此艺术授权远非简单的画作高清图片授权，也不是简单下载图文、加以拼贴就能运营管理的业务。

如艺术家足够出名且有商业价值如美国的Kaws、Keith Haring、墨西哥的Frida Kahlo、日本的村上隆或中国的吴冠中等，其艺术授权目前都是由专业机构在运营。在中国，博物馆艺术授权成功案例比比皆是，无论是因为“故宫口红”等爆款走红的北京故宫博物院，或是由于“朕知道了”文创大热的台北故宫博物院。

According to different sources of the rights, art licensing may also be divided into artist art licensing and museum art licensing. If the artists are famous enough, who might bring tremendous commercial value such as Kaws, Keith Haring from the United States, Frida Kahlo from Mexico, Murakami Takashi from Japan or Mr. Guanzhong Wu of China, the art licensing of whom are all taken care of by professional art licensing institutions at the moment. And different from that, museum art licensing are mainly operated based on the driving force of the branding and reputations of the museums. In China,there are numerous success stories of museum licensing, such as Palace Museum and its well-known “heritage lipsticks”, and Taibei National Palace Museum’s famous stationary products. British Museum was another good example, which grew to be the No.1 of daily sales in the same industry, within two weeks since launch of its flag store on Tmall, and in 2018, the total retail sales of its licensed merchandise grew to be more than US$30 million.

What are industries that can be empowered by art?

艺术授权可赋能产业无数。时尚配饰、服装、鞋履、电子产品、食品饮料、健康美容、家居装饰、家用产品、婴幼儿用品、纸质产品、出版、体育、玩具、礼品、推广及营销、游戏、汽车零部件等。而在中国，提及近年最活跃的艺术授权形式不得不提商场营销活动，俗称location - based event。 In theory, there is no industry that art cannot empower. Taking the Annual Global Licensing Industry Survey 2019 Report as an example, following were listed as products/services/industries that are extensively and deeply empowered by art licensing: fashion accessories,apparel, footwear, CE, food and beverage, health and beauty, home decor,housewares, infant, paper products, publishing, sports, toys, gifts,promotions, games, auto parts and the etc. And of all, fashion accessories,gifts and home decor represented the Top 3 in respect of sales, respectively at the percentage of 17.3%, 15.2% and 13.2%. In China, of various art licensing forms and modules, location based events is one of the most popular types, and Shanghai K11 was a pioneer and has been very successful in this field.

Museum licensing has been continuously growing fast.According to data from Ali, the sales revenue for Ali in 2019 till the end of August were already 3 times of such in 2017, the industries benefited most from the museum licensing include: beauty and skincare, culture and entertainment,CE, home decor and housewares, food and beverage, infant, maternity and the etc., among which, the YOY increase for beauty and skincare reached 2329%, for CE reached 1144% and for food and beverage reached 260%.

What are the real examples of successful art licensing?

就增长最快三个产业，各举一个实例为证：

1. “Perfect Diary”Beauty in Art Licensing

作为电子商务公司旗下美妆品牌，天生自带网红基因，成功实例包括：2019年双11，完美日记打败国际美妆MAC、名列天猫美妆销售榜第一。

2. Mobile phones in Art Licensing

手机品牌常常是艺术的忠粉。2018年小米与大英博物馆的“小米MIX 2S艺术特别版”以及差不多同时期由美图推出的“美图V6大英博物馆限量版”。

艺术，带着“英伦范儿”

Take Yili’s "Satine Jersey British Treasure” milk as an example, the milk was introduced as 100% from Jersey, and the packaging thus was created based on British Museum’s selected English paintings.

同时如何管控风险？

It is important to involve legal to empower industries with art and art licensing,throughout the whole process of art IP creation, IP verification, IP licensing,licensing management and IP enforcement.

首先，创权是授权的权利来源，无论来自艺术家著作权，或基于授权后二次开发形成新著作权，采用艺术家、博物馆基金会商标，或联名商标或新设计商标等，都需要严格管控风险。 First of all, art IP creation is the source and base for art licensing. Whether it is from the artist’s original copyright, from the new copyright created based on the art licensing, relating to licensed use of the trademark(s) of the artist(s), museums or foundations, or the co-branded or designed new trademarks, risks shall be clearly identified and carefully management. In practice, the most critical risks usu. exist in the ambiguity of IP ownership,e.g., a vague commitment of making contribution to a company via using IP,right to create or artwork, a commitment based on “Work for Hire” however without a legal employment relationship, and description of general relationships such as joint development, further creation, commissioned work and the etc.

其次，确权是保障授权安全开展的前提条件，必须佐以真实有效的证明文件，建议以独立调查且结果令人满意作为合作及付款前提。 Secondly,IP verification is condition precedent to ensure a licensing can be successful,and it shall be supported by authentic and valid written documents. It is advisable to engage an independent third party for DD and set satisfactory result as condition precedent for cooperation and payment. The verification shall be carried out with clearly-defined scope, period, categories,restrictions, and the copyright protection period of each jurisdictions.

再次，授权是授权过程中重中之重，是成功与否的关键。授权权利、范围、限制、性质（独家/排他等）、地域、期限及提前终止等、授权金、税费、双方责、权、利，违约、审批、审计、质量、保险、适用法律、争议解决等。

对授权方而言，需授并管、授且协助，对被授权方而言，需受并服管、受且配合协助，双方应一开始就授权审批、违约追究、危机管理等作出明确约定。

建议在开始商业合作讨论时就应纳入议题并明确各自责、权、利，如决策机制、费用分摊及权益分享等，以避免决而不策、效率低下的不利局面。

Besides,it is also advisable to pay special attention to regulatory compliance during licensing, such as strict industry regulatory compliance in respect of beauty,skincare, food and beverage, as well as crisis management, customs and import/export compliance, tax and customs duty risks.

综上所述，艺术授权于商业而言，不仅可以活化和提升艺术品资产价值，更可以创造、活化其无形资产价值，以及艺术家、博物馆、基金会的品牌价值，加以善用、并使艺术有助于促进各产业的可持续发展。

<p style="max-width: 100%;min-height: 1em;line-height: 1.5em;font-family: -apple-system-font, BlinkMacSystemFont, " helvetica="" neue",="" "pingfang="" sc",="" "hiragino="" sans="" gb",="" "microsoft="" yahei="" ui",="" yahei",="" arial,="" sans-serif;font-size:="" 16px;letter-spacing:="" 0.544px;white-space:="" normal;background-color:="" rgb(255,="" 255,="" 255);text-align:="" justify;margin:="" 15px="" 8px;box-sizing:="" border-box="" !important;overflow-wrap:="" break-word="" !important;"=""> To sum up, art licensing is a power to empower commercial operations, so as to empower industries, which may not only enhance value of the artworks property values, but also to promote and develop their intangible values, as well as the brands value of the artist(s), museum(s), foundation(s). If appropriately utilized, it has strong power to empower industries with driving force, for sustainability.