Article 100 of the General Principles of Civil Law "Citizens enjoy the right of portrait, and citizens' portraits may not be used for profit-making purposes without their consent." However, although our country's laws have the concept of portrait rights, they do not accurately define the connotation and extension of portrait rights in the form of law, and there is no authoritative explanation or regulation of its meaning in law. What is a portrait? According to the opinions of dictionaries or experts, for example, Professor Yang Lixin of Renmin University of China (doctoral supervisor, one of the drafters of the personal infringement part of my country's Civil Code) believes that a portrait, a portrait, is "similar, like", and "like" is more It is also an image of a person. Commonly known as "images similar to characters made by comparison with characters" [1]; that is, through art forms such as painting, photography, sculpture, video, film, and television, the appearance of citizens is reproduced on a material carrier as a visual image.
Portrait right is a specific personality right of citizens. What are image rights? The right of portrait is the personality right that citizens enjoy for the interests reflected in their own portrait. Compared with other personality rights, the object of the portrait right itself has certain property interest factors, that is, the utilization of economic interests. Among the portrait personality interests, there are spiritual interests and property interests, especially the property interests that are very obvious. Generally speaking, if a person is beautiful, he has the value of beauty, and if a person is ugly, he has the value of being ugly. However, if a person is neither ugly nor handsome, few people will ask him to advertise. This involves portraits. A matter of aesthetic value.
Rights, Latin "jus", refers to both rights and law, including the meaning of justice[2]. Rights, also known as legal rights, are permissions and guarantees that the state, through laws, allows subjects in legal relationships to do or not do certain actions, and to require others to do or not do certain actions [3]. Civil rights are divided into political rights, economic rights, social rights, etc. Civil rights are based on property content and are divided into property rights (divided into real rights and intellectual property rights) and personal rights. Personal rights refer to civil rights that are indivisible and non-transferable and have no direct property content. [4]. The object of personal rights is personality interests or identity relationships, which are divided into identity rights (enjoyed based on specific identities, such as spousal rights, parental rights, guardianship rights, etc.) and personality rights. Personality rights refer to the rights of civil subjects necessary to maintain independent personality and with personality interests as the object. Personality interests refer to the rights of civil subjects to their personal freedom and personal dignity, life, health, name, reputation, privacy, portrait, etc. The sum of the interests of civil subjects that the interests enjoy[5]. Portrait right is a type of personality right.
Portrait right is the personality identifier of a natural person, which reflects the appearance attributes of the natural person. Its basic content includes three items: one is the exclusive right to make, which means that one can make a portrait in any form at any time, and others can The right not to interfere is also represented by the right to prohibit others from illegally making one's own portrait; the second is the exclusive right to use, which is the right to prohibit others from illegally using one's own portrait, which is also attached to the right to transfer the right to use the portrait. The right to transfer the right to use the portrait; the third is the right to protect interests. Except for the right holder, everyone has the obligation not to infringe.
Regarding the concept of portrait rights, we would like to remind everyone to pay attention to several points: 1. Legal persons do not enjoy portrait rights, because although portraits reflect the physical attributes of natural persons, in terms of language, such as "□□□ □ The "glorious image of the institution" describes the image of the legal person; 2. The portrait in the portrait right lies in the "likeness", which only refers to the "likeness", which only refers to the "likeness", which only refers to the "likeness", which only refers to the "likeness". "picture". ", that just refers to the face, the image of the facial features, "face". This is inaccurate. The portrait not only refers to the "facial features" and "appearance", but also refers to the reproduction of the physical appearance of the natural person on the material carrier, of course the main It refers to the appearance of a person, and cannot be understood as just "appearance" or "facial features", but it cannot be understood as just "face" or "facial features" when the image contained in the photo is enough to identify the representation of the character. , it should be determined that the portrait is a portrait. Of course, if it cannot be determined whose portrait it is, it cannot be determined that its portrait rights have been infringed. At the first body photography art tour exhibition held in Hainan Province, the tickets were printed. A photo of a female model was used on the ticket. The photo was a portrait of the model, and the title was "Beauty." The photo used on the ticket cut off the part above the lips of the character, which triggered a lawsuit. The focus of the dispute was, Used such a "faceless" without permission.
Does the "faceless" photo constitute an infringement of portrait rights? Everyone knows, and what the plaintiff is more familiar with is that the photo is the plaintiff's face. This is a lawsuit that the plaintiff should win. 3. What is described in the article is not a representation of a portrait, such as a certain person, with a sharp mouth, monkey cheeks, and a nose that is always bad, smelly, and a pair of beetle eyes flashing annoying eyes. This requires reprocessing by the brain and does not fall within the scope of portrait rights. If the right to use portraits is infringed, it will be resolved by infringement of reputation rights. 4. Buildings do not have portrait rights, but according to the new Copyright Law, if there are written records, they are a kind of work. 5. Portrait right and copyright are closely linked. They are two rights in one thing. Portrait right is the basic right and copyright is the derived right.
2. Components of infringement of portrait rights and the exercise of portrait rights
When confirming infringement of portrait rights, according to Article 100 of the General Principles of the Civil Law, "No person shall use the copyright without his or her consent." There are only two requirements for using a citizen's likeness for profit-making purposes. The first condition is sometimes too broad in practice, and it seems that the consent of the person concerned must be obtained at all times. Adding such a clause does not "prevent the illegal reasons." As for "preventing illegal reasons", it refers to an act that cannot be carried out in principle according to the law, but there are reasons specifically provided by the law that do not constitute an illegal act, so that the implementation of the act becomes a legal act, thereby preventing the illegality of the act. Mainly include:
①Public welfare: To safeguard social needs, such as photo exhibitions of advanced deeds, notices and criticisms of uncivilized behavior, wanted fugitives, etc.;
②Personal interests: publishing missing persons notices ;
③Newsiness: In news reports, portrait rights are submerged in collections, queues, and ceremonies, and portrait rights are not allowed to be claimed. Similarly, portrait rights are not allowed to be claimed for individual group photos;
< p>④ For the purpose of recording specific public events, using the portraits of participants means that participation is equivalent to a commitment to the right to be used.On the contrary, "profit" is the essential requirement, but this view is sometimes too narrow and is not conducive to protecting the legitimate rights and interests of citizens. For example, some people illegally use other people's portraits (such as deliberately using a wide-angle lens to take a photo of "tusks" in the mouth and a wild boar image). This is not for profit, and it also constitutes infringement. So we can add the restriction "except for the insulting use of the image". To summarize the practical requirements for portrait infringement: without the consent of the individual, for the purpose of profit (except for insulting use), there is no "reason to prevent illegality".
3. Civil Liability for Infringement of Portrait Rights
Civil liability for infringement of portrait rights includes stopping the infringement, eliminating the impact, making an apology, and compensating for losses. The loss caused by infringement of portrait rights is generally compensation for mental damages, and the judge's determination will be relatively large. Regarding how to determine the standard of compensation for mental damage, Article 10 of the Supreme Court's "Interpretations on Several Issues Concerning the Determination of Liability for Compensation for Mental Damage in Civil Torts" "The amount of compensation for mental damage is determined based on the following factors: (1) The degree of fault of the tortfeasor, other laws Except where specified; (2) The specific circumstances of the infringement, such as the means, occasions, and modes of conduct; (3) The consequences of the infringement; (4) The infringer's profitability; (5) The infringer's economic ability to bear liability; (6) The average living standard in the location of the court where the lawsuit is filed. If laws and administrative regulations have clear provisions on disability compensation and death compensation, the provisions of the laws and administrative regulations shall apply." It is mainly up to the judge to exercise discretion through the above factors. At the same time, the principle of differential treatment and the principle of appropriate restrictions should be applied. It is difficult to use one standard to promote cases in different regions, different parties, different scopes of influence, and different natures. The author believes that the compensation standard can be grasped from three aspects: (1) It must have a punitive effect on the offender; (2) It must have a comforting effect on the victim; (3) It must have an educational effect on society. The amount of compensation that meets the above three requirements is correct. Various localities can set appropriate limits based on local economic conditions and per capita income levels, but in principle the amount of mental damage compensation should not be fixed and must be subject to the discretion of the judge.
Example 1: Watson Missing Person: A 19-year-old female college student in Shanghai angrily filed a lawsuit after being searched in a supermarket of Shanghai Watsons Daily Necessities Co., Ltd. The Shanghai Hongkou District People's Court recently ruled in the first instance that the defendant must apologize to the plaintiff Qian Yuan within ten days after the newspaper was published, and pay 250,000 yuan in compensation for mental damages and other expenses. On July 8, 2001, when the plaintiff Qian Yuan was leaving the Watsons Sichuan North Road store, the alarm at the door suddenly sounded. The defendant, despite the plaintiff's objections, forcibly brought her into the office for a strip search, which turned out to be fruitless.
The plaintiff protested strongly and demanded an apology and compensation from the defendant, but the defendant did not agree. The plaintiff then took the defendant to court and demanded that the defendant apologize and pay compensation of 500,000 yuan for mental damages. The first instance verdict ruled that the defendant should compensate the plaintiff 250,000 yuan for mental damages. "Watson's" appealed that the consumer did not provide evidence to prove that he was forced to take off his pants, so the infringement facts could not be determined. Regrettably, the court of second instance blurred the details of "whether Watson was forced to take off his pants" without providing sufficient evidence, and actually supported part of "Watson's" claims. "In fact, it supported part of Watson's lawsuit and changed the sentence to 10,000 yuan. This also illustrates the wide scope of the judge's discretion.
Example 2: People and dogs accompany dinner: Shanghai Concession Embassy and Consulate Area After the Opium War, the Qing government was corrupt and incompetent and erected a sign saying "Chinese and dogs are not allowed". According to reports, the Jintai District Court of Baoji City, Shaanxi Province ruled that the plaintiff lost the case. The Jintai District Court of Baoji City, Shaanxi Province ruled in favor of the plaintiff. The facts of the case are: At noon on August 1, 1999, while Wang and his wife were dining at Xiangyangge Restaurant owned by Baoji Xiangyang Catering Co., Ltd., two women took Jing with them. BaGou fed the dog food purchased from the restaurant at the dining table, using the public tableware of the restaurant. Wang believed that his personal dignity had been violated, so he sued the restaurant in accordance with the Consumer Rights Protection Act, demanding compensation of 25,000. Article 14 of the Consumer Law of the Yuan Dynasty stipulates: "Consumers have the right to have their personal dignity and national customs and habits respected when purchasing and using goods and receiving services." It is a matter of moral compensation for human dignity. Unfortunately, the court rejected the plaintiff’s claim on the grounds that the restaurant had no intention of doing so.
IV. Some cases regarding portrait rights
Case 1 , Carina Lau and Shantou Yalisi Cosmetics Company
Shantou Yalisi Industrial Company printed Hong Kong movie star Carina Lau's portrait on cosmetic packaging bags without her consent. After Carina Lau obtained evidence in Shanghai, she sued Yali in Shanghai. The silk company demanded an end to the infringement, an apology, and compensation for losses of 1 million yuan. The case was settled with 100,000 yuan through mediation, and I heard that most of it was donated to Project Hope.
Strictly speaking, in In photography activities, any one of the following circumstances can be considered as infringement of other people's portrait rights.
1. Using the portrait without the consent of the owner of the portrait rights without violating the law.
The act of using a portrait without the consent of the portrait owner is also called "improper use of another person's portrait." The legal provisions of my country's civil law on portrait rights basically provide for this kind of "improper use" of portraits. Improper use is divided into "profit-making" and "non-profit" illegal use. We cannot think that as long as it is not for profit, or with the consent of the portrait rights holder, a citizen's portrait can be used arbitrarily for non-profit purposes. The understanding is one-sided. Article 100 of my country's General Principles of Civil Law stipulates that "citizens enjoy the right to portrait, and citizens' portraits may not be used for profit-making purposes without their consent." Opinions of the Supreme People's Court on the Implementation of Several Issues (Trial). "Article 139 limits the scope of infringement to "the use of citizens' portraits for the purpose of profit without the consent of citizens to create advertisements, trademarks, window decorations, etc." Article 120 stipulates: "Citizens' rights to name, portrait, and reputation are affected. If there is any damage, you have the right to demand that the infringement be stopped, reputation restored, influence eliminated, apology made, and losses compensated."
In the case of using another person's portrait without the other person's consent and not for profit, only if it is illegal Actions that obstruct the cause are legal. Such as news reports, "wanted orders" issued by the public security organs to arrest criminal suspects, etc.
The right to portrait, like the right to name, is exclusive. The possession, use and disposal of one's own portrait can only belong to the citizen himself, and no one else can enjoy it without his consent. The infringement of portrait rights does not consist in using citizens' portraits for profit, but in not respecting citizens' exclusive rights to their own portraits. Therefore, regardless of the purpose of copying, disseminating, or exhibiting a citizen's portrait, the citizen's consent must be obtained, otherwise it will constitute an infringement of portrait rights.
2. Making portraits of others without authorization (including possessing photos of others). The act of making and possessing other people's portraits (photos) without their consent. For photographers, it’s the act of stealing someone else’s photos.
A portrait is an external expression of a citizen's "personality", and only the person has the right to decide whether to copy his or her own portrait. As for the production (photography) of the portrait, whether it is for public publication or private preservation does not affect the composition of portrait right infringement. In other words: even if it is not used publicly, it still constitutes infringement, such as a photo studio printing and saving customer photos without permission.
3. Maliciously insult or tarnish the portrait of others. That is, the illegal actor maliciously insults, defiles, defaces, damages, etc., infringes on the portrait rights of others or damages the integrity of the portrait rights of others. Including tampering, distorting, burning, tearing, and hanging other people's photos upside down, etc. This behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.
Based on the above, in photography practice, there are three situations that often constitute infringement of portrait rights:
In recent years, reports of so-called infringement of "portrait rights" seem to have become more and more frequent. A growing trend, why? I think there are many reasons, but they may be boiled down to the following three: First, the photographer does not understand the law; second, the photographer has the intention of deliberately infringing on other people's portrait rights and "making profits"; third, the photographer does not understand the legal significance of portrait rights , whenever he sees his portrait appearing in newspapers, he will file a lawsuit to claim compensation.
1. "For-profit purposes" must meet two conditions: First, the unauthorized use of other people's portraits without the owner's consent; Second, the behavior for profit-making infringes on the portrait rights of others, that is, Users subjectively hope to obtain economic benefits by using other people's portraits. However, the so-called "making a profit" is not the fact that we usually understand the need to make a profit. As long as there is a subjective intention to make a profit and there is an objective profit-making behavior, regardless of whether the actor achieves the purpose of making a profit, it constitutes "making a profit". fact.
2. Anyone who infringes the right of portrait (right of reputation, right of honor) in any form shall also bear legal responsibility: that is, the infringer has the right to ask the infringer to stop the infringement, restore reputation, eliminate the impact, and apologize. , compensate for losses. It can be seen that if the portrait of another person is used without the permission of the portrait right holder and not for profit, such as causing actual damage to the portrait right holder, such as causing mental damage to the portrait right holder, etc., the user will also constitute an infringement (portrait right). responsibility. In judicial practice, there are many cases of defacement, vilification, and tampering of citizens’ portraits without the purpose of profit.
The above can clearly show that whether it is "for profit" is not the only prerequisite and requirement for judging whether there is an infringement of citizens' portrait rights, but is only an important factor in judging the size of the infringement liability.
3. Although the portrait right holder agrees to use his or her portrait, the user has exceeded the use scope, use area, and use time limit permitted by the portrait right holder. This situation does not require the portrait right holder to cause actual damage to constitute infringement liability. Of course, this situation is generally a breach of contract.
How to assume civil liability for infringement of portrait rights
In my country, civil liability for infringement of portrait rights is mainly civil liability. Civil liability includes stopping the infringement, eliminating the impact, making an apology, compensating for losses, etc. Among them, stopping the infringement, eliminating the impact, and making an apology are non-property liability methods, and compensation for losses is a property liability method. In my country's judicial practice, the determination of tort liability generally has the following categories: First, "profit-making purpose" is the standard for making profits as the purpose of compensation. That is, regardless of the "seriousness of the circumstances" and whether it is for profit or not, as long as the purpose of the illegal use is to make a profit and the portrait right owner demands compensation, the infringer must bear liability for compensation. Secondly, for the determination of the amount of damages for non-profit infringement of portrait rights, that is, infringement of the spiritual interests of the portrait rights holder, "serious circumstances" are the basic standard. If the circumstances are minor and there are no serious consequences, material compensation is generally not certain.
According to our country’s laws and judicial practice (mainly the latter), based on some specific circumstances and social public interest, the portrait can be used reasonably without the consent of the portrait owner:
Generally, unauthorized use is not allowed without the consent of the portrait right holder. However, in some cases, although the portrait right holder’s consent is still used, the portrait can still be used, which does not constitute an infringement of the portrait right. This does not constitute an infringement of the portrait rights. It is necessary to make reasonable use of the portrait of the portrait rights holder. Infringement of portrait rights provides a defense to the use of another person's likeness. These defenses provide users with conditions for fair use and prevent the illegal use of their likenesses without the consent of the right holder.
Although our country has not formulated specific legal provisions in this regard, in judicial practice, it is generally understood that:
1. In order to safeguard national interests and social needs, use news-worthy public information Portraits. For example, portraits are used when reporting on national leaders, political activists and progressive figures.
Public figures are people who have a certain identity and status and are newsworthy. They are generally celebrities from all walks of life. Their activities often involve the country’s politics, economy, social life, culture and entertainment and other aspects. , therefore, the use of his likeness for reporting his deeds should be used reasonably. First, use portraits of public figures for the purpose of safeguarding national and social interests. Public figures are people who have a certain identity and status and are newsworthy. They are generally celebrities from all walks of life. Their activities often involve the country's politics, economy, social life, culture and entertainment and other aspects. Therefore, in order to report their deeds The use of his or her likeness should be used reasonably. For example, the use of portraits of national presidents, politicians, diplomats, scholars, inventors, writers, artists, actors, athletes, successful industrialists, etc. should be used reasonably. Successful industrialists and others have news value, and the use of their likenesses for reporting their activities without their consent does not constitute infringement. For example, CCTV host Chen and Public Security University teacher Li sued COSCO Pharmaceutical Company for infringement of their portrait rights. On July 5, 2000, the Fengtai District People's Court of Beijing ruled in the first instance that Chen and Li Two people lost the lawsuit. The reason for the case was that the photos of the plaintiff participating in the COSCO Photography Exhibition appeared on the defendant's advertising brochure, and the background of the photos was faded. Chen and Li believed that COSCO Shanxi had infringed their right to portrait, so they filed a lawsuit in court. After investigation, the court held that the "COSCO Photography Exhibition" in which Chen and Li were photographed was a social welfare activity. It can be disseminated to the public, and the technical processing of the photo does not affect or distort the expression of its main content. In addition, the advertising brochure compiled and printed by COSCO is to increase corporate visibility and create a good corporate image. It does not have direct profit-making purposes and does not violate relevant national laws and regulations. Every citizen enjoys the right of portrait, but the exercise of the right of portrait should be subject to certain restrictions. Finally, the court ruled that the portrait rights of Chen and Li were not infringed.
2. Use portraits of people participating in specific activities on specific occasions. Such as portraits of people participating in various rallies, parades, ceremonies, celebrations and other activities. Such activities are often of news value, and participants have shown that they have given up their own portrait rights to a certain extent. Anyone who participates in such activities is not allowed to claim their own portrait rights. The use of portraits formed on these specific occasions should not constitute an infringement of portrait rights, but should be considered a reasonable use of portraits.
3. When doing photography in scenic spots, using people as embellishments, or taking photos that include other people, people should not be the main subjects in these situations;
4. In landscapes Photography creations in scenic spots use people as embellishments, or the photos taken include other people. In these situations, people should not be used as the main subject. In order to exercise the legitimate right of public opinion (the Constitution stipulates that citizens have the right to supervise), to criticize certain uncivilized behaviors and behaviors, to condemn the perpetrator's illegal or immoral behavior, to educate the masses to abide by the law, respect social morality, and safeguard society. order, etc., publicize their uncivilized behavior and use citizens’ portraits. For example, taking photos that damage social property, pollute the environment, etc.;
5. It is necessary to use the portrait owner's portrait for social purposes such as the portrait owner's own interests and the interests of other natural persons. For example, a person's photo may be used when posting missing person notices in newspapers or on television in order to find a missing person.
6. The use of citizens’ portraits as evidence in litigation activities (in criminal or civil proceedings, at the litigation stage); state agencies are forced to use citizens’ portraits to perform official duties. For example, the public security organs use their portraits to issue wanted warrants in order to hunt down fugitives or other criminal suspects.
7. National agencies use citizen portraits for the purpose of executing and applying laws (such as in the process of administrative law enforcement);
8. For the needs of scientific research and cultural education, in certain circumstances Use other people's portraits within the scope (mainly within the scope of social disclosure), such as displaying photos of patients on specific occasions or in professional newspapers and magazines for the needs of clinical medical teaching and scientific research. The use of citizen portraits.
Therefore, I personally believe that the following aspects should be paid attention to when using citizen portraits:
1. Correctly understand that "illustrations and pictures" in articles are different from news pictures and photographic reports.
2. Standardize the wording of picture descriptions. (Such as naming the work, etc.)
3. Do not trust "verbal agreements" easily.
4. Use magazine cover images with caution.
V. When submitting works (newspapers, magazines and various film competitions), please pay attention to adding restrictions on the authorized use of the work after the descriptive text.
6. When participating in various photography activities involving models, pay attention to the agreement between the organizer and the model.
7. The key is to obtain a written agreement from the portrait rights holder.
Although the law has defined the infringement of citizens’ portrait rights, with the development of my country’s market economy, especially after joining the WTO, the use (scope) of photographic works has become increasingly difficult to escape. The influence of "interests", especially the penetration of economic factors. Therefore, overall, the legal protection of portrait rights in our country’s laws is relatively principled. For example, how to define what is "for profit", whether pictures in news media are for profit; the right of portraits of public figures, especially those in the political and entertainment circles; the definition of the right to use the portraits of deceased people, etc. When we deal with portrait photography, the problems we encounter are often very specific, so it is very difficult when we rely on these abstract terms to deal with the specific things we encounter, and the most difficult thing here is "for profit" . Therefore, as a photographer, when taking portraits, especially when using portraits, you must be cautious, follow the law, and have evidence. These three points are very important. What I mean is that everyone has the right to portrait. If you want to use someone else's portrait, you must get the consent of others - this is the safest (so today I specially brought some information about "image use" and "artistic works" ) I have brought some samples of contracts and agreements regarding "image use", "agency", etc., for your reference only).
Some frequently asked questions about portrait rights:
1. Does the company have the right to use the portrait of its employees?
The answer is yes: no!
2. Does portrait right only involve "face"?
No! Whenever people see a portrait, they will always think of the recorded personality characteristics of the legal subject. This personality trait is an important resource for human society, and its potential huge commercial value is particularly important for modern business society (such as the recent TCL mobile phone Advertisements, Korean female movie stars, etc.
Visual images of other body parts with distinctive characteristics will also be reminiscent of the recorded legal subject and the personality characteristics of the legal subject. Therefore, other body parts with distinctive characteristics. The visual image also belongs to the portrait, and it also falls within the scope of protection of portrait rights.
Whether it constitutes a "portrait" must be based on the front of the natural person and the general social situation, and a comprehensive judgment can be made. You can see it, but if it is from the side or other parts, and most people can already tell who the person being shown is, then the side or other parts will constitute a "collective portrait".
3. Is there an issue with portrait rights in the photo?
Yes. As we all know, the portrait rights of individual portraits are independent personality rights. Once infringed, the portrait rights holder can claim rights against the infringer in accordance with the law. Rights have their own characteristics. A collective portrait is a collection of independent portraits of the right holder, which has the characteristics of independence and identity unity. First of all, everyone in the portrait photo enjoys independent personality rights; It is physically indivisible (everyone has the right to independently claim rights).
From the current judicial practice, it is generally: if the user of the collective portrait has malicious intent towards the portrait of a specific person. The specific person's personality rights are serious enough to cover the portrait of the entire portrait owner, and the infringement of his portrait rights is obvious.
Secondly, when judging the collective portrait. Whether the use infringes the collective portrait rights of a specific individual should be a basic basis. Is the user aiming to make profit and is there commercial use?
It can be seen that the degree of legal protection for collective portraits is lower than that of individual portraits. That is to say: collective portraits have certain restrictions on individual portrait rights. This restriction is to ensure the reasonable use of the entire group. restrictions on. (Only because the current law is not perfect)
4. Is taking photos of others a matter of infringement of portrait rights?
This depends on whether there are circumstances that would not prevent the violation of the law. For example, a salesperson in a store had a dispute with a customer and had a very bad attitude. From the perspective of social benefits, this situation is an undesirable phenomenon in society because the salesperson has a bad attitude and does not reason with customers, which is against the salesperson's professional ethics. The disclosure of this bad phenomenon is conducive to the progress of society. Because of this, such an incident is undoubtedly a piece of social news. Any citizen has the right to report news, and taking news photos is one of the means of reporting news. Photographing such scenes is using other people's portraits to serve the society and does not constitute an infringement of the salesperson's portrait rights.
But if it’s two brothers quarreling, there’s you. Well generally speaking, no. . . .
5. Can administrative agencies or relevant units conduct "photographic exposure" of citizens' portraits?
For example, when a few thieves were caught at a bus station but no crime was committed, they worked with the local police station to post their portraits in the shopping mall for "photo exposure" to remind passengers to pay attention. This seems to have good intentions and good intentions, and the "thief incident" also has illegal reasons, but. . . .
Using other people’s photos at will, especially posting photos of others in public places, and because such postings and related text descriptions cause an unspecified majority of people to negatively evaluate that person, is very likely to constitute a crime. Infringement of the portrait rights of others. The above-mentioned "thief incident" can only be solved through legal means and procedures. Even if it constitutes a crime, it can only be notified by the people's court in accordance with legal procedures and regulations.
According to the provisions of the "Administrative Penalty Law", the types and extent of administrative penalties can only be set by laws, regulations and departmental rules, and other normative documents may not set administrative penalties. There is a principle here: for administrative agencies, nothing can be done without the authorization of the law; for citizens, nothing can be done without the prohibition of the law.
Therefore, after searching all the laws, regulations, and rules, it is impossible to find that the public security organs can punish citizens by taking photos and posting them in public places. Therefore, the behavior of the police station is an arbitrary infringement.
6. If it is known to be an "infringement", how long is the victim's protection period?
I remember a very famous photo, "The taste after sealing" (news photo). The text accompanying the photo is "The person smoking a cigarette is Shi Yongbu, the former director of the Shenyang Explosion-proof Equipment Factory." This photo was taken in 1986 and published in China Youth Daily, causing a sensation across the country. In April 1999, Shi Yongjie took the author and the media to court, arguing that the report actually derogated and vilified the plaintiff and violated the plaintiff's right to portrait and reputation.
According to the provisions of my country's "General Principles of Civil Law", the statute of limitations for petitioning the People's Court for protection of civil rights is two years. That is to say: when the right holder knows or should know that his rights have been infringed and does not file a lawsuit with the People's Court for two years, the right holder will no longer have the right to request protection from the People's Court. In other words, the rights holder’s right to win the lawsuit is completely destroyed. Therefore, Shi Yongjie's lawsuit has actually exceeded the statute of limitations stipulated by law and no longer has the right to win.
7. The principle of honesty and credit!
I remember that in the "People's Photography" newspaper, an author wrote an article "A Method for Dealing with Portrait Entanglements", explaining how to obtain the so-called "authorized" portrait secrets. That is, after taking a photo of the subject, the subject is asked to leave his name and address on a piece of white paper, and the enlarged photo will be sent to the subject. In fact, the other side of the white paper is a folded page. , which contains a statement of agreement to publish and so on. This approach is not advisable!
my country's "General Principles of Civil Law" and "Contract Law" both stipulate that "civil acts are invalid". For example, Article 52 of the Contract Law stipulates: A contract concluded by one party through fraud or coercion shall be deemed to be an invalid contract.
At the same time, my country's "General Principles of Civil Law" also stipulates corresponding principles, one of which is: the principle of "voluntariness, fairness, equal compensation, good faith", among which the "good faith" principle is called here It is the "Emperor's Clause".
The "Emperor's Clause" here refers to firstly that in civil activities, civil subjects shall exercise their rights and perform their obligations in accordance with the principle of good faith and shall not abuse it, harm the interests of others, or violate national interests or social public interests. Secondly, good faith should be the basis in contract interpretation. That is to say, when a court or arbitration institution interprets a contract, it should use the principle of good faith to determine right and wrong and determine liability. Third, the principle of good faith should be used to make up for the shortcomings of the law. This last third point is very important. The principle of "good faith" gives judicial officers a certain degree of discretion! That’s why people call it the Emperor’s Clause. In other words: when there are loopholes in the law, the principle of good faith can be interpreted to make up for the shortcomings of the law.
So, don’t be smart, but realize that “cleverness can lead to mistakes.”