Article 100 of the "General Principles of the Civil Law of the People's Republic of China" and the "Civil Law of the People's Republic of China" stipulates that citizens enjoy the right of portrait and may not use their portrait for profit-making purposes without their consent.
Article 120 of the "General Principles of the Civil Law of the People's Republic of China" stipulates that if a citizen's right to name, portrait, reputation, or honor is infringed upon, he or she has the right to request that the infringement be stopped, that the reputation be restored, and that the impact be eliminated. , apologize and ask for compensation for losses.
First, what is "image right".
"Portrait" has different understandings from different perspectives. Portrait (or photography) in the artistic sense refers to an ornamental modeling work that reproduces the portrait owner's character in a material carrier through artistic means such as painting and photography.
Portrait rights in the legal sense include the personal interests enjoyed by portrait rights holders based on their portraits. Generally, it has the following legal characteristics:
1. A portrait is an artistic expression of a natural person’s appearance.
Usually when we judge whether a character's external image constitutes a portrait, we have to consider its shape and position.
First of all, the characters must have portrait characteristics. First, its form of expression is to reflect the image of a specific citizen through photography; second, the portrait must also reflect the main characteristics of the specific citizen, such as posture, appearance, expression, etc.; third, the portrait must be real, controversial, and well-known at a glance. You will know whose portrait it is.
Secondly, it must be a concrete portrait of a citizen. In the picture, the citizen portrait should occupy a prominent and main position in the entire image and be represented as a specific object rather than as a foil; at the same time, the purpose is not to achieve the purpose through the use of portraits.
2. Portraits have the attributes of objects.
Portrait is an artistic representation, which should be fixed on a specific material carrier (such as photo paper, TV screen, newspapers and magazines, etc.) specifically and independently. It is an objective visual image derived from and independent of the portrait right holder. It can be dominated, controlled and disposed of by others, and has certain property interests.
3. Portraits are the object of portrait rights and express the unique personality interests of natural persons.
The so-called "property interests" do not come from the physical characteristics of the natural person itself, but from the personality interests generated by the portrait, reflecting different personality interest needs. The legal protection of natural persons' portrait rights is actually the need to protect personal interests.
The so-called "portrait right" is a personality right exclusive to natural persons. The legal meaning is: the inviolable exclusive right of a natural person to reproduce his or her image (portrait) on an objective material carrier through plastic arts or other forms.
Citizens’ personal interests reflected in their own portraits are the objects of protection of portrait rights under our country’s laws. It includes spiritual interests and property interests based on the personality interests embodied in the portrait.
Its characteristics are:
1. The subject of portrait right can only be a natural person. Only natural persons have portrait and portrait rights. Legal persons or other social organizations do not have portrait rights because there is no objective "portrait" that can independently reflect their appearance. (The "corporate image" of a legal person does not refer to a person's portrait, but refers to the legal person's operation, scale, management, efficiency, reputation, product quality and other comprehensive conditions and social evaluation.)
2. Portrait rights There is also a kind of property interest, which is derived from the personality interest of the portrait right holder. It allows the owner of the portrait right to transfer the portrait right to a certain extent, allowing others to make and use his or her portrait, and obtain due use value from it.
3. Portrait right is also a marked personality right, which is grassroots. The basic function is to identify personality by appearance and image, thereby identifying each specific natural person. (The right to name is to identify personality through text symbols).
Contents of portrait rights:
1. Exclusive right to produce portraits
As far as photography is concerned, it is to fix the appearance of a natural person on film, The whole process of converting the image of a natural person into a portrait on photographic paper or other material carriers.
The exclusive right to make portraits includes: first, the owner of the portrait can decide to make his own portrait or let others make his own portrait according to his own needs or the needs of others or society, and no one is allowed to interfere; Second, the owner of portrait rights has the right to prohibit others from making his or her portrait without his or her consent or authorization. Illegal production of portraits of others constitutes infringement.
When we understand "portrait right", we often think that as long as the portrait owner's portrait is not made public, it does not constitute an infringement. This is a misunderstanding of the law. Strictly speaking, it should be understood that whether the exclusive right to create a portrait is infringing depends on whether the producer has obtained the permission of the owner of the portrait at the time of production. If it is produced without permission, even if it is for the purpose of possession, it will not infringe the direct interests of the portrait owner, and it will constitute an infringement of the exclusive right to produce the portrait. As far as photographers are concerned, as long as you point the camera at a natural person for portrait photography, if the owner of the portrait does not agree and force the photo to be taken, it is an infringement.
2. Exclusive right to use portrait rights
Once the portrait is fixed on some material carrier, it is independent of the world and can be controlled and used by others. Although the use value of a portrait is of universal significance, only the owner of the portrait can enjoy its exclusive rights. Its basic content is:
First, natural persons have the right to use their own likeness in any way and obtain spiritual satisfaction and property benefits through use, and others are not allowed to interfere (but must not violate the law and public order and good customs). Second, natural persons have the right to allow others to use their likeness and decide to receive compensation for it (this requires equal negotiation with the user and the signing of a likeness use contract). Third, natural persons have the right to prohibit others from illegally using their likenesses.
3. The right to safeguard portrait interests
Portrait interests are the exclusive personal interests of citizens, and no one else may interfere or infringe. The content is as follows: First, citizens have the right to prohibit others from making their own portraits without their permission; second, citizens have the right to prohibit others from using their portraits without permission; third, citizens have the right to prohibit others from damaging, defiling, vilifying, or distorting Portrait of yourself.
The general principle is: citizens have the right to reproduce their own image - the right to agree or disagree with the reproduction of their own image in objective material media and space; citizens have the right to use their own likenesses and the right to allow others to use them has the right to prohibit others from using his or her likeness.
Civil liability for infringement of portrait rights
There are certain principles for determining whether portrait rights have been infringed. According to my country's "General Principles of Civil Law", as long as these three requirements are met, civil liability for infringement of portrait rights can be determined: First, the occurrence of damage. Roubaix
Civil Liability for Infringement of Portrait Rights
There are certain principles for determining whether the right of portrait has been infringed. According to my country's "General Principles of Civil Law", as long as these three requirements are met, civil liability for infringement of portrait rights can be determined: First, the occurrence of damage. For example, after the victim's portrait rights are infringed, the victim's reputation, status, and identity will be hit, causing mental pain. This is mainly reflected in the reduced possibility of the portrait rights holder to obtain property benefits from his portrait, including direct losses and indirect losses, including Mental damage and material damage. 2. The infringer is subjectively at fault (including intentionality and negligence). That is to say, if there are behaviors prohibited by laws and regulations in photography activities and illegal infringement of other people's portrait rights, it can be considered as a fault. 3. There is a causal relationship between the fact of damage and the infringement. This causal relationship must be an intrinsic, essential, and inevitable connection between the photographer's behavior and the damage results.
Strictly speaking, in photography activities, as long as one of the following circumstances occurs, it can be deemed as infringement of the portrait rights of others.
1. Use of portrait rights without the consent of the portrait rights holder without obstructive illegal reasons.
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 on portrait rights in my country's civil law basically target the "improper use" of portrait rights. This improper use can be divided into "for-profit purposes" and "non-profit purposes" illegal use. We cannot think that as long as it is not for profit, or with the consent of the portrait owner, we can use the portrait of a citizen at will without making a profit.
This understanding is one-sided. Article 100 of my country's "General Principles of Civil Law" stipulates: "Citizens enjoy the right of portrait and may not use their portrait for profit-making purposes without the consent of the individual." The Supreme People's Court's "About Enforcement
Without the consent of the individual Non-profit use of another person's likeness is legal only if there is a reason to prevent infringement. Such as news reports, "wanted orders" issued by public security organs for the arrest of criminal suspects, etc.
Portrait rights, like name rights, are exclusive rights. The possession, use and disposal of personal portraits can only belong to the citizen himself, and no other person may enjoy them without his consent. Infringement of portrait rights is not the use of a citizen's portrait for profit, but a lack of respect for a citizen's exclusive right to his or her portrait. Therefore, regardless of the purpose, reproduction, dissemination, exhibition, etc. Citizens' right to portrait should be recognized by citizens, otherwise it will constitute an infringement of the right to portrait.
2. Making portraits of others without authorization (including possessing photos of others). The act of creating and possessing other people's portraits (photos) without their consent. For photographers, it’s the act of taking photos of others.
Portraits are the external expression of a citizen’s “personality”, and only I have the right to decide whether to reproduce my own image. Whether the portrait is produced (photographed) for public publication or possession does not affect the composition of infringement of portrait rights. In other words, although there is no public use, it still constitutes infringement, such as a photo studio privately printing customers' photos for preservation.
Third, maliciously insult and vilify other people’s portraits. That is, the perpetrator maliciously insults, vilifies, tarnishes, damages other people's portraits or destroys the integrity of other people's portraits. Including altering, distorting, burning, tearing or hanging other people's photos upside down, such behavior not only constitutes an infringement of portrait rights, but also often constitutes an infringement of reputation rights.
To summarize, in photography practice, there are three situations that often constitute infringement of portrait rights:
In recent years, there seem to be more and more reports of so-called infringement of "portrait rights". Why? I think there are many reasons, but in the final analysis there may be three: first, the photographer does not understand the law; second, the photographer deliberately infringes on people's portrait rights for the purpose of "making profits"; third, the photographer does not understand the legal significance of portrait rights, Anyone who sees their likeness in a newspaper will sue for compensation.
1. "For-profit purposes" must meet two conditions at the same time: first, using other people's portraits without their consent; second, the profit-making behavior infringes on other people's portrait rights, that is, the user subjectively hopes to use the Use other people's likenesses for financial gain. However, the so-called "profit" is not what we usually understand. As long as there is subjective intention and objective profit-making behavior, regardless of whether the actor achieves the profit-making purpose, it constitutes a "profit-making" fact.
2. Anyone who infringes on another person’s portrait rights (right of reputation, right of honor) in any form shall also bear legal liability: that is, the infringer has the right to ask the infringer to stop the infringement, restore reputation, eliminate the impact, and make amends. Apologize and compensate for losses. It can be seen that without the permission of the portrait right holder and not for profit, if it causes actual damage to the portrait right holder, such as causing mental damage to the portrait right holder, the user will also be liable for infringement (portrait right). In judicial practice, there are many cases of defacing, vilifying, and distorting the portraits of citizens for the purpose of not making profits.
It can be clearly seen from the above that "for profit" is not the only prerequisite and requirement for determining whether there is an infringement of citizens' portrait rights, but is only an important factor in determining the extent of infringement liability.
3. Although the portrait owner agrees to use his or her portrait, the user exceeds the scope, area and period of the portrait owner's permission. This situation does not require actual damage to the portrait right holder to constitute infringement liability. Of course, this situation generally falls under liability for breach of contract.
How to assume civil liability for infringement of portrait rights
In our country, the main form of liability for infringement of portrait rights is civil liability. This form of civil liability includes stopping the infringement, eliminating the impact, making an apology, and compensating for losses. 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 the judicial practice of our country, the determination of tort liability is generally as follows: First, the purpose of making a profit is the standard of compensation.
That is to say, no matter whether the circumstances are serious or not, no matter whether it is profitable or not, as long as the purpose of the illegal use is to make a profit and the owner of the portrait demands compensation, the infringer must bear the liability for compensation. Second, for non-profit infringement of portrait rights, that is to say, the basic standard for determining compensation for moral benefits of infringement of portrait rights is "serious circumstances". If the circumstances are minor and no serious consequences are caused, material compensation is generally not awarded.
According to our country’s laws and judicial practice (mainly the latter), based on certain specific circumstances and social interests, portraits can be used reasonably without the consent of the portrait owner:
General For example, one is not allowed to use one's own portrait without the consent of the portrait owner, but in some cases, one can still use one's own portrait without the consent of the portrait owner, which does not constitute an infringement of portrait rights. Defenses provided. These defense grounds 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 believed that:
1. In order to safeguard national interests and social needs, use newsworthy information Portraits of public figures. For example, portraits are used to report the deeds of national leaders, political activists and progressive figures.
Public figures have a certain status and news value, and are generally celebrities from all walks of life. Their activities often involve all aspects of national politics, economy, social life, culture and entertainment. Therefore, it should be rational to use their likenesses to report on their deeds. First, in order to safeguard the interests of the country and society, use portraits of public figures. A public figure is a person with a certain status and news value, usually a well-known person from all walks of life. Their activities often involve the country's politics, economy, social life, culture and entertainment, etc. Therefore, it should be rational to use their portraits to report their deeds, such as presidents, politicians, diplomats, scholars, inventors, writers, artists, actors, athletes, successful industrialists, etc. , there is news. For example, Li, the host of CCTV and a teacher at the Public Security University, sued Zhongyuan Wei Pharmaceutical Company for infringement of portrait rights. On July 5, 2000, Li and Li lost the first instance of the Fengtai District People's Court. This case was caused by the fact that the plaintiff's photo taken at the Cosway Photography Exhibition appeared in the defendant's advertising album and the photo was treated as a downplayed background. Chen and Li believed that Shanxi Cosway Company had infringed on their portrait rights, so they sued to court. After hearing, the court held that the COSCO Photography Exhibition in which Chen and Li took photos was a public welfare social activity. It can be disseminated to the public completely, and the technical processing on the photo does not affect or distort the expression of its main content. In addition, the advertising brochure compiled by COSCO Wei aims to increase corporate visibility and create a good corporate image. It has no direct profit-making purpose and does not violate relevant national laws and regulations. Every citizen has the right to portrait, but the exercise of the right to portrait should be subject to certain restrictions. In the end, the court ruled that He Li's right to image was not infringed.
2. Use portraits of people who participated in specific activities on specific occasions. Such as portraits of people participating in various rallies, parades, ceremonies, celebrations and other activities. Such activities often have news value. The presence of participants means that they have given up their own image rights to a certain extent. No one can claim their own image rights when participating in such activities. The portraits formed on these specific occasions should not constitute an infringement of portrait rights and belong to fair use of portraits.
3. In the photography creation of scenic spots, use people as embellishments, or include people when taking pictures. In these situations, people are not the subject;
4. In order to exercise the legitimate right of public opinion supervision (the Constitution stipulates that citizens have the right to supervise), to criticize certain uncivilized behaviors, and to condemn the perpetrator's illegality or immorality Behavior, in order to educate the public to abide by the law, respect social morality, maintain social order, etc. , using citizen portraits to publish their uncivilized behavior. Such as photographing acts that damage public property and pollute the environment;
5. Use portraits for portrait rights holders, other natural persons and other social welfare purposes. For example, I used my photos to look for missing people when I published Looking for You in newspapers and on TV.
6. Citizens’ portraits used as evidence in litigation activities (in criminal or civil proceedings); state agencies use citizens’ portraits in order to perform official duties. For example, public security agencies use their portraits to create wanted warrants to hunt down fugitives or other criminal suspects.
7. Portraits of citizens used by state agencies to implement and apply laws (such as in the process of administrative law enforcement);
8. Within a certain scope for the purpose of scientific research and cultural education Use other people's portraits (mainly in the public domain), such as for the purpose of clinical medical teaching and scientific research, and to display patient photos on specific occasions or in professional newspapers and periodicals. Use citizen portraits.
Therefore, I personally believe that the following aspects should be paid attention to when using citizen portraits:
1. Correctly understand the difference between "illustrations and illustrated photos" in articles and news photos and The difference between photojournalism.
Second, standardize the picture description text. (Such as the title of the work, etc.)
Third, don’t believe in “verbal agreements”.
Fourth, use pictures with caution on magazine covers.
5. When submitting articles (newspapers, magazines, various film competitions), pay attention to the following text and add the authorized use restrictions of the work.
6. When participating in various photography activities that hire models, pay attention to the agreement between the organizer and the model.
7. The key is to obtain the written consent of 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 is increasingly affected by “interests”. Especially the penetration of economic factors. Therefore, generally speaking, my country’s legal protection of portrait rights is relatively principled. For example, how to define "for-profit" and whether pictures in news media are for-profit; the right to portraits of public figures, especially politicians and the entertainment industry; and the definition of the right to use the portraits of deceased persons. When we deal with photographic portraits, the problems we encounter are often very specific. So it is very difficult to use these abstract nouns to deal with the specific things we encounter. The most difficult thing here is "making a profit". In view of this, as a photographer, when taking portraits involving people, especially when using them, you must pay more attention to: caution, legality, and evidence-these three points are very important. I mean, everyone has image rights. If you want to use someone else's portrait rights, you have to get someone else's permission - this is the safest (so today I specially brought a few samples of contracts and agreements about "image use" and "work agency", just for you refer to).
Some common questions about "portrait rights":
1. Does the company have the right to use employee portraits?
The answer is yes: no!
2. Does the right of portrait only take care of the "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 especially valued by modern business society (such as the recent TCL mobile phone advertisement and the invitation of Korean actresses). )
Visual images of other distinctive body parts may also recall the recorded legal subject and the legal subject's personality characteristics. Therefore, the vision of other body parts with obvious characteristics also belongs to the portrait and is within the scope of protection of portrait rights.
Whether it constitutes a "portrait" is based on the front face of a natural person. It also tests the cognitive level and comprehensive judgment of ordinary people in society. It can be seen and judged, but if the side or other parts are shown, people who are familiar with them can already tell who they represent, then the side or other parts also constitute a "portrait".
3. Are there portrait rights issues in group photos?
Yes. As we all know, the personality rights of the holder of personal portrait rights exist independently. Once infringed, the portrait right holder can assert his or her rights against the infringer in accordance with the law. However, the right to portrait in a collective portrait has its own characteristics. A collective portrait is a collection of independent portraits of all rights holders, with the characteristics of independence and identity.
First, all portrait rights holders enjoy independent personality rights in photos; on the other hand, in physics, collective portraits have indivisible characteristics (everyone has the right to independently assert rights).
From the current judicial practice, generally: if the user maliciously damages, pollutes or vilifies a specific person in the collective portrait, the proportion of the personality rights of this specific person is sufficient to cover all The portrait rights holder’s image has obviously been infringed.
Secondly, when judging whether the use of a collective portrait infringes the portrait rights of a specific individual in the collective portrait, is the user using it for profit or commercial purposes? It should be a basic basis.
It can be seen that the legal protection level of group portraits is lower than that of individual portraits. That is to say, the individual portrait rights in group portraits are subject to a certain degree of restriction, and this restriction is limited to guaranteeing all group photographers fair use. (Only because the current law is imperfect)
4. Does taking photos of others quarreling constitute an infringement of portrait rights?
It depends on whether there is any reason to prevent the violation of the law. For example, a store clerk had a quarrel with a customer and had a very bad attitude. In terms of social benefits, this situation violates the professional ethics of sales staff and is also a negative phenomenon in society. Exposing this negative phenomenon is conducive to social progress. Therefore, such an incident is undoubtedly a social news. Any citizen has the right to report news, and taking news photos is one of the means of news reporting. The photo taken of this scene is the use of another person's portrait for the public interest and does not constitute an infringement of the salesperson's portrait rights.
However, if two brothers are arguing, so are you. . . Overall, no. . . .
5. Can administrative agencies or relevant units "expose" citizens' portraits?
For example, a few thieves were caught at a bus station, but it did not constitute a crime. So in order to remind passengers, their portraits were posted in the shopping mall together with the local police station for "photo exposure." It seems to be well-intentioned, but there are also reasons why the "thief incident" is illegal. . . .
Using other people’s photos at will, especially posting other people’s photos in public places, and causing an unspecified majority of people to negatively evaluate that person due to such postings and related text descriptions, will most likely constitute a portrait of another person. rights infringement. The above-mentioned "thief incident" can only be solved through legal channels and procedures. Even if it is a crime, it can only be declared 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: as far as administrative agencies are concerned, government agencies cannot do anything without legal authorization; as far as citizens are concerned, as long as there is nothing prohibited by law, citizens can do something for them.
So we checked all the laws, regulations and rules, but we couldn’t find any way that public security agencies can punish citizens by publicly posting photos. Therefore, the actions of the police station were arbitrary infringements.
6. After knowing that he has been "infringed", how long is the victim's protection period?
I remember a very famous photo, "The Smell of Bankruptcy" (news photo). The caption of the photo is: "The person smoking a cigarette is Shi Yongjie, the former director of Shenyang Explosion-proof Equipment Factory." The photo was taken in 1986 and published in China Youth Daily, which once caused a sensation across the country. Later, this photo was often seen in newspapers and other media. In April 1999, Shi Yongjie took the author and related media to court, arguing that the report actually belittled and vilified the plaintiff and violated the plaintiff's right to portrait and reputation.
According to 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, if the right holder knows or should know that his or her rights have been infringed and fails to file a lawsuit with the People's Court within two years in accordance with the law, the right holder no longer has the right to request protection from the People's Court. In other words, the rights holder’s right to win the lawsuit is eliminated. Therefore, in fact, Shi Yongjie's lawsuit has exceeded the statute of limitations stipulated by law and has no right to win.
7. The principle of integrity!
I remember that in "People's Photography", an author wrote an article "A way to deal with portrait rights disputes", explaining the secret of how to obtain the so-called "letter of attorney" from the portrait rights holder. That is, after taking a photo of the subject, ask the subject to leave their name and address on a piece of white paper, and send the enlarged photo to the subject. In fact, the other side of the white paper is a hinge with a statement of consent for publication. This approach is really not advisable!
my country's "General Principles of Civil Law" and "Contract Law" both stipulate "invalid civil acts". For example, Article 52 of the Contract Law stipulates that any act by a party that concludes a contract through fraud or coercion shall be deemed an invalid contract.
At the same time, my country's "General Principles of Civil Law" also stipulates corresponding principles, one of which is "voluntariness, fairness, equal compensation, good faith", among which the "good faith" principle is called "Emperor" Articles" means: First, in civil activities, civil servants should exercise their rights and perform their obligations in good faith, and must not abuse their rights, harm the interests of others, or violate the interests of the country or the country. Second, the interpretation of the contract should be based on good faith. That is to say, when a court or arbitration institution interprets a contract, it should judge right and wrong and determine liability based on the principle of good faith. The third is to make up for the shortcomings of legal provisions with the principle of good faith. The important thing is that on the last point, the principle of "good faith" gives judicial officers a certain degree of discretion! So people call it the Empire Clause. In other words, when there are loopholes in the law, the principle of good faith can explain and fill in the law.
So, don’t be smart, but know that “the wise will be misled by the wise.”