As long as he does not make a profit, it does not count. Publication in newspapers is recognized by law.
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Article 120 of the General Principles of the Communist Party of China stipulates: Citizens’ rights to name, portrait, reputation, and honor Those who have been infringed have the right to demand an end to the infringement, restore their reputation, eliminate the impact, apologize, and demand compensation for losses
Portraits and fine arts (or photography) have the same meaning. Portraits refer to paintings and paintings.
Portrait rights in the legal sense imply general legal characteristics arising from the interests enjoyed by portrait rights holders:
1. Portrait art reproduces the external appearance of the image
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The author’s judgment on whether the external image of the object constitutes a portrait should be considered in conjunction with the expression part of its form of expression
First of all, the image of the object must be characterized by the form of a portrait, and its expression must be The form is to reflect the image of a specific citizen through photography; the second is the portrait image of the citizen. Photographic works must reflect the image of a specific citizen; secondly, the portrait must reflect the main characteristic posture, demeanor, and expression of the specific citizen; thirdly, the portrait must be a portrait of a person who is truly defensive and turns a blind eye
In fact, it must be Portraits of specific citizens Portraits of citizens should occupy a prominent subject position in the entire picture and serve as a foil for specific image expressions; the same purpose reaches directly to the eyes through the use (means) of portraits
2. Portraits have physical properties
The artistic representation of a portrait should be specific, a portrait right derived independently of a specific fixed material carrier (photo paper, TV screen, newspapers, magazines, etc.). ) is independent of the portrait right. It is a place where the objective visual image can be dominated and controlled, and has certain property interests.
3. The object of the portrait right originates from the portrait. Expressed special interests
The so-called property interests do not come from the external characteristics of the portrait itself, but are actual interest protections that grant legal protection to the portrait rights based on the granting of property interests in the portrait and the need to reflect the same interests. Requirements
The so-called right of portrait is an exclusive right in a legal sense: the exclusive right to an image (portrait) reproduced through plastic arts or objective material carriers in its form
Citizens obtain portrait rights stipulated by law from the interests embodied in the portrait. The portrait rights protected include spiritual interests and property interests based on the interests embodied in the portrait
The so-called property interests refer to those that are not based on physical characteristics. It is produced by itself and is based on the objective material carrier of the image embodied in the portrait.
Features:
1. The subject of portrait rights can enjoy portrait rights for his own portrait and portrait rights, or for his objectively existing social organization and portrait that can independently reflect his appearance (corporate image refers to the business operations, scale, management, efficiency, credit and products of the enterprise) Portraits of comprehensive conditions such as quality and social evaluation)
2. The right of portrait has a property interest derived from the right of portrait, which allows the transfer of the right of portrait within the scope of the right of portrait, allows the production and use of the portrait, and allows the use value of the portrait
3. The right of portrait is a right with identity characteristics, and its basic function is to identify each specific self (the right of name identifies the image through text symbols)
Contents of the right of portrait:
1. Exclusive right of portrait production
The right of portrait production is a property interest derived from the property interest of portrait.
The right to produce a portrait is the entire process of transforming the portrait into a portrait through the film, photographic paper or material carrier that fixes the portrait from its photographic appearance
The content of the exclusive right to produce a portrait includes:
1. Exclusive right to produce a portrait: 1. The holder of the portrait right has the right to decide to make a portrait of himself or herself according to the needs of the self or society, or if the person whose portrait is being produced is disturbed; 2. The holder of the portrait right has the right to prohibit unauthorized production. Self-consent of the portrait or the infringement of the self who authorized the production of the portrait to the non-production of the portrait
Understanding the portrait
2. The exclusive right to use the portrait
Once the portrait is fixed in material form (production), it is at the disposal of the world and can be used independently without restriction. Although the use value of the portrait is in a general sense, the enjoyment of the portrait exclusive right to use. You have the right to use your own portrait and decide to use it for a fee (you need to sign a portrait use contract and negotiate with the user on an equal footing) 3. The right to prohibit the use of your own portrait
3. The right to protect the interests of your portrait
Citizens' portrait interests are the content of interference when citizens' exclusive interests are infringed. Citizens have the right to prohibit the production of their own portraits without their permission; secondly, citizens have the right to prohibit the use of their own portraits without their permission; thirdly , citizens have the right to prohibit damaging, defacement, vilification, and distortion of their own portraits
General principles: Citizens’ right to reproduce their own image—the right to consent or consent to the reproduction of their own image in objective material media space; citizens The right to use one's own portrait, the right to allow others to use one's own portrait, and the right to prohibit others from using one's own portrait
Civil liability for infringement of portrait rights
Confirmation of the infringement of portrait rights The fixity of portrait rights
Whether the property benefits obtained by infringing the portrait rights of the portrait owner can be reduced, including direct losses and indirect losses, including mental damage and material damage 2. The subjective fault of the infringer (including intentional misconduct), that is, the wrongdoing prohibited by photography warranty laws and regulations, is deemed to be a fault that infringes the portrait right. 3. The relationship between the fact of infringement and damage must be the wrongdoing of the photographer and the end of the damage.
Strictly speaking, the inclusion of photographic works in the case is regarded as an infringement of the right of portrait
Citizens enjoy the right of portrait, and those who use citizens’ portraits for profit-making purposes without consent Article 139 of the High People's Court of Conduct "On the Implementation of the General Principles of the People's Republic of China (Trial Implementation)" Limitations on types of infringement in Article 12: Using citizens’ portraits for profit-making purposes such as advertisements, trademarks, window decorations, etc. without consent. Scope specified in Article 120: Request to stop when a citizen’s right to name, portrait, or reputation is damaged. The right to infringe, restore reputation, eliminate influence, apologize and compensate for losses
The non-profit use of portraits without consent is reported in the news on the grounds of hindering infringement, and the public security organs arrest suspected criminals. Issuing wanted notices for artificial reasons
Portrait rights and name rights are exclusive. Portrait rights can be attributed to the firm from the occupation and use space of the portrait. The act of using a citizen's portrait for profit without consent is respected. On the premise that citizens have exclusive rights to their portraits, they are not restricted by the type of portrait. The use of citizens’ portraits for purposes such as reproduction, dissemination, and exhibition must obtain the consent of the citizen.
The second type is unauthorized creation. Agree to make portraits (including photos) without authorization and occupy the so-called candid photo line in portrait (photo) photography
The right to portrait is an additional right of citizens to decide whether to copy their own image, as long as the production (photography) The portrait works are published publicly and kept privately
which affects the infringement of portrait rights.
At present, there is another theory that affects the infringement of portrait rights: although the public use of the same infringing photo studio privately prints and saves customer photos
3. Malicious insult and tarnishing of portrait means malicious insult, vilification, defacement, Infringement of portrait rights or destruction of the integrity of portrait rights in the form of destruction, including tampering, distortion, burning, tearing or inverting photos is only an infringement of portrait rights and often an infringement of reputation rights
Comprehensive of the above photography Three situations of infringement of portrait rights have been constructed in practice:
Recent reports of so-called infringement of portrait rights seem to be getting more and more intense. The author believes that they can be summed up into three types: one is that the photographer knows the law and breaks the law; The person intentionally infringes the right of portrait with the intention of making a profit; thirdly, the photographer understands the meaning of the right of portrait stipulated in the law and when he sees the self-portrait, he will publish it in the newspaper and sue for compensation
1. The purpose of making profit must meet two conditions at the same time : The act of infringing on portrait rights by using the portrait for profit without the consent of the portrait right holder for two purposes: that is, the portrait right holder subjectively hopes that the portrait right holder will use the portrait to make profits; that is, the portrait right holder subjectively hopes to obtain economic benefits through the use of the portrait, which is the so-called Profit-making, as I understand it, must be based on subjective intention and objective profit-making, regardless of whether the purpose of profit-making is achieved, it constitutes actual profit-making
2. Any form of infringement of portrait rights (rights of reputation, rights of honor) must be borne Corresponding legal liability: Whether it is for profit and the only prerequisite for deciding whether to infringe on citizens' portrait rights is to determine the important circumstances of infringement liability
3. Although the citizen's portrait rights holder agrees to use his or her portrait works. If the use of a portrait exceeds the scope, area, and limit permitted by the portrait right holder, such cases need to be based on whether the actual damage caused by the portrait right holder is a tort liability. Such cases are generally contractual liability issues.
Civil liability for infringement of portrait rights
1. Civil liability for infringement of portrait rights Subjects' civil liability for infringement of portrait rights include stopping the infringement, stopping the infringement, eliminating the impact, making an apology, and compensating for losses Non-property liability types Compensation for losses Property liability types The determination of tort liability in my country's practice is generally: for profit-making purposes. For profit-making purposes, the standard of compensation is, whether the circumstances are serious, whether to make a profit, and whether the circumstances are serious. The criteria for judging the severity of the circumstances are general. Judgment of material damage compensation for minors
According to the approach of the Ministry of Justice (mainly) based on some specific circumstances of social and public interest****, the plaintiff is reasonable after obtaining the consent of the portrait right holder Use of one's own likeness:
Generally speaking, the act of using the likeness of the person without the consent of the person with the right to the likeness. In some cases, the use of the likeness even with the consent of the right holder of the likeness constitutes infringement of the right holder of the likeness. Infringement, at this time, the defense grounds for use provided by the portrait right holder shall be the defense grounds for use provided by the portrait right holder. Reasonable conditions of use to prevent the infringement of using the portrait without the consent of the portrait owner
Although the author has not formulated specific legal provisions, this is a general understanding of practice:
1. To safeguard the interests of the public, use public portraits with news value and use portraits in reports on the advanced deeds of leading cadres’ families and politicians
Public figures with a certain status and news value are generally from all walks of life. The public image used in family, political, economic, social, cultural and entertainment activities that celebrities often participate in. When reporting on their deeds and using their portraits in politics, economy, society, culture and entertainment, etc., the use should be reasonable. Whether it is necessary to use the portrait of a public figure to safeguard social interests. Public figures have a certain identity and news value. Celebrities in general society often participate in politics, economy, Social, cultural and entertainment activities. Portraits of family presidents, statesmen, diplomats, inventors, writers, artists, actors, transporters, successful industrialists, statesmen and statesmen should be used appropriately when reporting their deeds and using their likenesses. The use of his likeness in newsworthy reports, although without his consent, does not constitute infringement of the copyright infringement dispute case filed by CCTV host Chen and public security teacher Li against Yuanda Pharmaceutical Company.
A case involving a dispute over infringement of two people’s portrait rights was heard by the Fengtai District People’s Court of Beijing on July 5, 2000. During the trial, Chen and Li failed to present the facts of the case as the plaintiff Yuanda Company’s photography exhibition. pictures, and downplayed the backgrounds of the plaintiff’s advertising brochures and photos. Chen and Li recognized that Shanxi Yuanwei Company had infringed their right to portrait and sued the court. After investigation, the court approved Chen and Li’s claims. The photography exhibition jointly taken by Li to commemorate Yuanwei Company was of public interest nature and was entirely for the benefit of the public. It is publicly disseminated to the public, and the technical processing of the photos does not affect the distorted expression of the main content. Yuanwei Company publishes advertising brochures to increase corporate visibility and create a good corporate image. The act of direct profit-making does not violate relevant regulations. It is stipulated that every citizen in the country enjoys the right of portrait, and the exercise of the right of portrait should be subject to certain restrictions. The court ruled that Chen used photographic creation objects as embellishments or took photos as certain occasions and objects;
4. Exercise the right to supervise public opinion (the constitution stipulates: the right of citizens to supervise), criticize, condemn or educate certain civilized behaviors, so that the public can abide by discipline, respect social morality, and maintain social order, such as publishing their Civilized behavior uses portraits of citizens to photograph behaviors that damage public property and pollute the environment.
5. The right of portrait is the main interest. The use of one's own portrait is the main interest of oneself. The right of one's own portrait is the main interest.
5. The interest of portrait rights, and the social and public interests among his own interests require the use of his portrait to find missing persons notices published in newspapers and television. Use this photo
6. Citizens’ portraits are used as evidence in litigation (criminal or civil litigation stages); national agencies are forced to use citizens’ portraits when performing official duties; public security agencies use their portraits to create wanted warrants when chasing fugitives or suspected crimes.
7. Carry out by family planning agencies
8. Use portraits within the scope of scientific research and cultural education projects (mainly refers to the social scope) on specific occasions in clinical medical research projects or in professional newspapers and magazines Publication of disease photos and other uses of citizen portraits
The author believes that the current use of citizen portraits should pay attention to several aspects:
First, understand article illustrations, illustrations, photos and news pictures;
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Second, we must standardize picture descriptions (naming of works, etc.).
3. Believe in verbal agreements
4. Use magazine cover pictures with caution
5. Pay attention when submitting articles (newspapers, magazines, various photography competitions) Description of the face and restrictions on the use of the work
6. When participating in various photography activities that hire models, you should pay attention to the content of the agreement between the organizer and the model
Fourth, participate In various model photography activities, attention should be paid to the content of the agreement between the organizer and the model
Seventh, the key is to have a written agreement on portrait rights
Although the law has already punished infringement of citizens' portrait rights However, with the development of our market economy, especially after joining the WTO, the use (scope) of photographic works is increasingly unaffected by interests, especially the penetration of economic factors. Generally speaking, our legal The protection of portrait rights is still relatively principled, such as defining what is a for-profit news media and whether pictures and texts are for-profit; the right to portraits of public objects, especially the right to use the portraits of politicians, entertainment circles, etc. ; Definition of the right to use the portrait of the deceased, etc.
The problems I encounter in portrait photography tend to be non-specific. I deal with them in abstract terms, and I don't struggle with concrete things. For profit, given the subjects involved in shooting portraits as a celebrity photographer, When using, you should pay special attention to: caution, compliance and basis - the three points and ten requirements I mean are that every right to use the portrait must be approved by the owner of the right to use the other person's portrait - guarantee (so I specially brought a few books about portraits Contracts and agreements on use, work agency, etc., for home reference only)
Some opinions on the issue of portrait rights:
1. Does the company have the right to use employee portraits
Answer yes
2. Does the right of portrait take care of face?
Every time I look at the portrait, I always think of the characteristics of the legal subject and modern business society. An important resource and its potential huge commercial value, especially (recently inviting Korean movie stars for TCL mobile phone advertisements)
A visual image with distinctive characteristics and its body parts enable the recording of the legal characteristics and subject of the subject The legal characteristics of the subject The visual image of its body parts that have distinctive characteristics enables the recording of the legal characteristics of the subject and the legal characteristics of the subject The body parts that have distinctive characteristics. Portraits falling within the scope of portrait right protection
Portraits without structures have the same appearance as those with structures. The cognitive level of ordinary people in society should be examined, and the judgment requirements should be viewed with comprehensive and comprehensive judgment. The side or part of the expression, the portrait of the structure that the average person is familiar with and can judge the side or part of the expression
3. Portrait rights in group photos
Homepage Understand the portrait rights in group photos. Portrait rights exist independently. Once the right of portrait is infringed, you can claim your rights against the infringer
Portrait rights in group photos
Portrait rights of group photos
The right of portraits of collective portraits, but each right of a collective portrait has its own characteristics. An independent portrait collection has the characteristics of independence and identity. Each portrait photo enjoys Independent rights; other substantive rights of collective portraits have special characteristics (each rights holder can independently assert their own rights)
At present, our company’s approach is generally: targeting specific portraits of users of collective portraits It is not difficult to see whether the proportion of the malicious damage, tarnishing or vilification of the right is serious enough to cover all the portrait rights of the infringement of the portrait.
Judge whether the user of the collective portrait has used the collective portrait to infringe the specific Portrait rights should be based on whether the user of the collective portrait is for profit and commercial use.
It can be seen that the degree of protection of collective portraits by law is lower than that of portrait rights: on collective portraits The right of portrait must be subject to certain restrictions to ensure that all people can reasonably use the group (the current law has not yet been perfected)
4. Whether taking demonstration photos infringes on the right of portrait
Check whether there are any reasons that hinder the infringement. There are situations in which store clerks quarrel with customers and have heinous attitudes. Social benefits: Look at the bad attitudes of clerks, reasoning with customers, and other negative social phenomena that violate the professional ethics of clerks. Disclosure of some negative phenomena is beneficial to social progress. The incident is suspected of social news. The right of news reporting. The right of any citizen to gather news. The type of news shooting method. Any use of special photos. Public posting of special photos. Such postings and related text descriptions cause negative comments from a specific number of people. It is easy to constitute portrait rights. The above-mentioned theft incidents can be solved through combination methods and procedures. Even if they constitute a crime, they can be implemented by the civil court in accordance with the prescribed fixed procedures. Announcement
According to the provisions of the Administrative Penalty Law, the types and ranges of administrative penalties can be The types of administrative penalties are set by laws, regulations, and departmental rules based on the principle of normative documents: that is to say, government agencies can do it if the law does not authorize it; citizens can also do it if the law does not prohibit it.
After checking all the laws, regulations, and rules, we found that the form of punishment imposed by the public security organs on citizens for posting photos in public places is decided by the police faction, which is an arbitrary infringement