China-McDonald (Flowers and Birds)

Artist: Li Lihong

Li Lihong (b.1974), China–McDonald (Flowers and Birds), 2008, porcelain, Brigham Young University Museum of Art, purchase/gift of Andrew and Sandy Lai and Curtis Atkisson

Commentary by Brett Scharffs
Professor of Law
J. Reuben Clark Law School, BYU

I am sitting at a McDonald’s™ in Beijing thinking about Li Lihong’s witty and slightly subversive homage to – for better or worse – America’s most iconic and recognizable global brand (with the possible exception of the Big Mac’s™ ubiquitous fellow traveler, Coca-Cola™). While I can go months without being pulled into any of the three McDonald’s™ restaurants I pass each day driving home from work, after about a week in China, I’m drawn irrestibly, like a moth to flame, to the Golden Arches™. Fortunately (if that is the word), there are approximately 2,000 McDonald’s™ in China alone, and while the food may be trans-fat saturated poison, at least you can count on it. And after a week of Chinese banquets, it does taste good.

There is something ironic about Li Lihong’s work–a shameless expropriation of another’s idea, claiming and reworking their intellectual property as your own, in a place notorious for its disregard of the intellectual property of others. A recent U.S. trade report claimed that Chinese failure to protect intellectual property rights costs Americans about 2.1 million jobs. To call it a “failure” may be putting it politely, because as a professor of international business law, I know all too well that protecting intellectual property has never been a priority of the Chinese government. Indeed, General Motors™ famously complained that an entire car of theirs was copied down to the last screw, the only changes being the shape of the door handles and the headlights, by a local company whose chairman was the son of a high Chinese Communist Party official. Their complaints and legal actions all met dead ends.

My own experience with Chinese attitudes toward intellectual property–primarily involving street hawkers offering pirated DVD’s at a dollar apiece–is considerably more humble. One experience particularly made an impression. In 2007 I was shopping in the popular Beijing “Silk Market,” where you can find every imaginable international brand, from Gucci™ to North Face™, on offer for a tenth of its retail price at home. I was looking to buy a t-shirt with the logo for the then-upcoming Beijing Olympics™. Walking through the market, I asked merchant after merchant for an Olympic t-shirt. No one had one. Finally, a shopkeeper with better than usual English explained, “Olympic logo protected trademark. Must go to official department store.” So I made my way across town to the official Olympic store, where I bought a bright orange Olympic shirt for $40, about the price I could have purchased ten shirts adorned with the Polo horse™. I still have it, and use it for yard work. Oh well, I thought, perhaps this is how a regime comes to value intellectual property–by having some that others find valuable enough that they want to copy.

Li Lihong’s intricate porcelain sculpture, of course, would be protected intellectual property in the United States, under the so-called “fair use” doctrine, which allowed Andy Warhol to reproduce near exact replicas of all those cans of Campbell’s Soup™. Lihong’s work is an even more interesting twist on the “pop art” theme, because it incorporates exquisite Chinese porcelain craftsmanship, a tradition more than a thousand years old, to produce something that is not a replica, but a sophisticated social commentary, as well as a beautiful work of art. Naturally, cheap knock-offs of traditional porcelain is available in the Chinese tourist markets as well. There is something thought provoking about a timeless artistic form being incorporated to represent a product with a shelf life of about fifteen minutes.

Most American law students, and a fair number of law professors, could not tell you that the only right specifically named and protected in the (pre-Bill of Rights) U.S. Constitution relates to intellectual property, specifically the right to patent. For this business law professor, Li Lihong’s work, is an occasion for reflecting on the intersections of East and West, the deep symbiosis of the American and Chinese economies, and the tensions that seem destined to flare up from time to time between these, the world’s two largest economies.
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