A few weeks ago, I did a post, “Sino-Foreign Film Co-Productions in China,” outlining the requirements for doing film co-productions in China. We received the following comment in response to that post:

Thank god I ignored all this when I shot Shangdown: The Way of the Spur in Shanghai last year 😉

The person who left this comment even linked over to his website.

Dan and Steve tell me they are used to people leaving comments here and elsewhere bragging about how they violated Chinese law and got away with it and implying that anyone who actually follows Chinese law is a sucker. Me, I was stunned. I have been handling Chinese legal matters for going on ten years now and I live in Beijing it was not the law-breaking that stunned me. No, not at all. Rather, I was stunned by how people tout it online and act as though simply because they have (at least so far) gotten away with it, everyone else should be doing it. Self-justification perhaps?

As lawyers who constantly see what happens to people who violate the law in China, we would be fools not to take the law seriously. We have dealt with enough businesses that have been shut down and people deported, and even jailed, to know that there are very real risks to not following China’s laws. Our job as lawyers is to tell you how to follow the laws. If you choose to violate them, that is obviously up to you.

Though we pride ourselves on providing practical advice and practical commentary, our approach is always based on what the law says and how the law is applied in China. What the law says, and what people may sometimes be able to get away with in China, are two completely different things. So, when someone tells us that they got away with something in China, they generally imply that there is no need to follow the rules. A particular instance, they say, is to be mistaken for a universal principle. Someone who smoked like a chimney their whole life yet lived to 77 is proof that cigarettes do not cause lung cancer.

Though I am not familiar with the Way of the Spur, it sounds as though it is one of many films produced in China without complying with the rules. Usually, this occurs when the producer is indifferent as to whether the film will ever be screened in China or when the producer determines that the film will, because of its subject matter, never be approved for screening in China anyway. Mao’s Last Dancer, a well-known Sino-Australian co-production directed by Bruce Beresford, is generally regarded as falling into the latter category. This film took in more than $15 million at the box office and was the highest grossing Australian film of 2009. But did it get a theatrical release in China? Did the producers and investors get a slice of that famously burgeoning Chinese box office? No, because it cannot legally be shown in Chinese theaters.

If The Way of the Spur was not made according to the rules then it too cannot lawfully be exhibited in China. Its producers and investors will not see any China box office. But there is more in the way of disincentives for not following China’s co-production rules. Those rules and regulations also provide for the following punishments:

  1. Confiscation of equipment
  2. Independently producing – minimum fine RMB 300,000
  3. Movie contains prohibited content – minimum fine RMB 300,000
  4. Movie exhibited in China or overseas without authorization – 5 year ban on making a film in China

My initial post on Sino-foreign co-production was aimed at those who wish to operate legally in China and by so doing, be able to exploit China’s massive and burgeoning film market. For that, you have to follow the rules. For those who do not wish to abide by Chinese law, we maintain a list of top tier Chinese criminal lawyers. And we use it more than we would have liked.

  • What do you think is the situation with foreigners – say, X or Z visa-holders – acting in Chinese films? And by “situation”, I mean the strictly legal definition of what work such visa-holders are allowed do in China. If, say, a guy’s here on a Z visa and does a little acting job on the side, just for the hell of it – it can be quite fun on a film set – is he in breach of his visa, do you think?

  • Kathy Roberts

    Mathew makes some very good points. I too am always amazed at people who go online bragging about how they have violated or are violating Chinese law. They may be right about the Chinese government not reading it, but their competitors do.

  • Alison the Lawyer

    There will always be people who operate illegally and that is exactly what we criminal lawyers are for.

  • Mark

    They don’t need to follow the rules because they’re not making enough money for the government to notice them. I think they’re bragging to compensate for the fact that they’re broke.

  • Joe

    People always like to brag about how they got away with things. Can China actually do anything to them if they’re sitting comfortably in the United States?

  • Ricardo M.

    There is, in fact, no good/cheap investment vehicle available in China for him to use for a one-off project. I also seriously doubt whether the filmmaker had any intention of having he film distributed/shown in China. The criticism of him based on that premise is potentially quite invalid. HIs coming to China was his choice and his risk and was almost certainly in this case part business decision, and China Law Blog’s ”holier than thou” nature in this piece does not sit well. It would be useful to hear from the maker of ”Way Of The Spur” how we fared, but I suspect you’ve burned your bridges in getting this guy to tell his tale.

  • AM

    People love to brag about what they are getting away with. It’s stupidity, but it’s also human nature. I think people particularly like to brag about it in China because it makes them feel like native. I’ve been here 8 years and it’s always been like that. The nice thing about being here so long though is that I have seen almost all of those people leave either because they failed or got pushed out.

  • Logan

    I thought that comment was hilarious and if you’re an indy filmmaker why not? It’s grassroots promotion.
    If you really want to go the legal route the film will end up as garbage with all the content restrictions. Basically it’s for sell outs only. I appreciate that lawyers aren’t going to agree with that, otherwise they wouldn’t be very good lawyers.

  • Green Gables

    His film would never have got made following the legal route. Good on the guy for ignoring the lawyers and just doing it! CLB called this entrepreneur wrong!

  • neil

    For what its worth, I completely agree with the dissenters. I don’t think any moral laws are broken in making a film in china that hasn’t been approved by the chinese censors. Its just a business risk, you might end up in jail or with a hefty bill, but thats a risk some people will take, and good luck to them. No one has ever achieved anything in business without taking risks.
    I’ve read this blog for several years, and whilst its advice is very valuable I can’t help noticing that it is increasingly geared towards established businesses with large amounts of capital behind them, where compliance is a major issue and they have resources to deal with it from the outset. It’s worth bearing in mind that a lot of people have built up businesses in china from nothing, dealing with regulatory issues as the businesses have expanded. In fact, thats how most businesses grow, rightly or wrongly, wherever in the world they are located.

  • Good Information… Thanks for sharing.

  • Hello

    Has it occurred to anyone that the filmmaker posted about flaunting the laws so they could use this blog as a cheap way to generate some free publicity, however small it might me? I have no doubt that they flaunted the law and I actually don’t fault them for doing that, but the bragging about it appears to be more of an attempt to get some buzz for the project on a blog that has a large number of visitors. Shameless self promotion.

  • Artiste

    This is exactly right. Foreign films are kept out of China strictly as a means to regulate content, not as a means to protect Chinese filmmakers, for whom the Chinese government has little love. So in that respect, both foreign and Chinese filmmakers have a shared interest in expanding the pie as to what is allowed and in having a thriving industry. Since having a thriving industry means protection from copying, the two should share that common goal. I agree.

  • Paul

    For fun I would like to make a no budget film zombie film with some friends.
    Do I risk a 300,000 rmb fine?

  • Hi, I am a film student studying Chinese at Tsinghua University for a year and while I am here I want to do a small movie with some students here at Tsinghua as well as over at The Beijing Film Academy. This is as much an experiment in how to do film in China as much as it is in making the actual film, if that makes sense. That being said I want to play by all of the rules and legally speaking do the right things. Can you direct me to some resources or perhaps be willing to provide some legal counsel to a student trying to do the right thing? I am, unfortunately, not very well versed in Chinese Law and as such I find the task of finding and going through the right legal steps to be confusing to say the least.