According to Article 17 of my country’s Copyright Law: “The ownership of the copyright of a commissioned work shall be agreed upon by the client and the trustee through a contract. If the contract is not expressly stipulated or the contract is not concluded, the copyright belongs to the trustee. According to this, when a party entrusts others to take photos, portraits or statues of himself, he can first agree on the ownership of the copyright through a contract. If there is no agreement or the agreement is unclear, the copyright belongs to the creator. However, my country's Copyright Law does not clearly limit the rights of the copyright owner of commissioned works (portrait works), and because the client and the trustee may not care much about the ownership of the copyright of the work and the non-transferability of the personal rights of the work, they must clearly stipulate it through the contract. There are not many, and conflicts between the two rights may still occur.
The National Copyright Administration of my country’s “Reply on Copyright Issues in Studio Photos” (hereinafter referred to as the “Reply”) regulates to a certain extent a large number of cases in real life where the copyright ownership of commissioned works is not agreed upon or the agreement is unclear. Condition. The third stipulation in the reply: "Since the photos may also involve the customer's portrait rights, the photo studio should abide by Article 100 of the General Principles of the Civil Law when exercising copyright: "If a photo is used for profit, it must obtain the portrait rights holder in advance. license. "Obviously, this clause adopts the theory that personality rights are higher than copyright, and stipulates that when a trustee uses his or her copyrighted portrait for profit, he has the obligation to obtain permission from the portrait right holder in advance, but it does not clarify whether the trustee should obtain permission from the portrait rights holder. According to the principle of equity in the civil law, this provision should be interpreted as the copyright owner should pay remuneration to the portrait owner. In addition, whether the portrait owner has the right to use the copyright owner's portrait works for profit is a question. Item 4 of the "Reply" stipulates that if the client (portrait right owner) and the trustee (copyright owner) clearly stipulate in the agency contract that the client has the right to use the photos for profit by copying, advertising, etc., the client has the right to If the client and the trustee do not agree that the client has the right to use the portrait for profit within the scope of business activities, and there is sufficient reason to believe that the trustee knows that the client will use the portrait for profit. If no objection is raised, although the copyright belongs to the trustee, the client still has the right to use the photos for profit within the scope of his business activities. If the client and the trustee do not expressly express that the client has the right to use the portrait for profit. , or there is no reason to believe that the trustee knows that the client will use the portrait for profit. When the copyright belongs to the trustee, the client should obtain the trustee's permission in advance if he wants to use the portrait for profit. But in any case, When the client uses the portrait work, he should pay corresponding remuneration to the trustee. As can be seen from the above, the reply adopts a "mutual license system" when the copyright owner and the portrait rights holder are inconsistent. If one party uses a portrait for profit, it must obtain the consent of the other party and pay corresponding remuneration. This kind of ex-post remedy cannot fundamentally solve the conflict between copyright and portrait rights. Therefore, when my country's copyright law is revised again, there should be clear restrictions. The rights of the copyright owners of commissioned works (portrait works) should be defined by clear legal provisions, and the rights and obligations of the copyright owners and portrait rights holders should be defined to fundamentally resolve the conflict of rights between the two.
The answer comes from Zhihu’s Wei. lawyer.
How to apply for the copyright of a Zhihu novel? 1. The author’s ID card and work ID
When registering, you need to upload pictures of the front and back of your ID card and holding your ID card. The original ID of your work is also essential. For novel works, the work must meet the format requirements of the novel, such as cover, chapter layout, etc. Once submitted, they will be reviewed by a consultant. If it does not meet the requirements, it will be recalled for revision and then submitted to the Copyright Office for application. If you register offline or with the National Copyright Office, you generally need to provide (mail) paper materials. You can ask clearly about the requirements in advance before applying.
2. Information about the work
Nature of creation: original creation, adaptation, translation, compilation, annotation, and organization. If it is not original, but is a secondary creation based on someone else's work, copyright registration can only be carried out if authorization from the author of the original work is provided.
Work registration categories: written works, artistic works, sound recordings, video recordings, oral works, etc. For articles and novels, just choose the written work.
Whether it has been published: whether the work has been published after completion, whether the novel has been published in paper media or online. If it has been published, the publication time and publication link must be provided.
3. Ownership information of rights
Who owns the rights to the work, in whole or in part? For individuals, there are personal works, commissioned works (requiring a contract), and collaborative works (requiring a contract); for companies, there are job works (created by company employees), commissioned works (commissioned by others, requiring a contract), and collaborative works (multiple people). Collaborative works (requires contract) and legal person works (financed by legal person, legal person is responsible). Just choose according to the actual situation. For novelists, most of them are original works, and individuals enjoy all rights, including personal rights and property rights. If it is an adapted work, such as a comic adapted into a novel, authorization from the comic author is required.
Can I post a picture on Moments without copyright? Zhihu's portrait right infringement involves commercial purposes, and Moments generally does not involve it
And commercial use is not enough to infringe on portrait rights.
2. In special circumstances, Moments can also constitute an infringement of portrait rights, such as
WeChat business (typical commercial use)
3. Even if it is not enough Infringement of portrait rights cannot be considered as definitely not infringement.
That’s right. Photos in special circumstances may involve things like privacy.
That’s right.