Legal analysis
Pictures that are not authorized by the copyright owner or portrait owner are infringement. No organization or individual may infringe upon the portrait rights of others by uglifying, defacing or forging by means of information technology. Without the consent of the portrait owner, the portrait of the portrait owner shall not be made, used or made public. Without the consent of the portrait owner, the portrait owner may not use or disclose the portrait of the portrait owner by publishing, copying, distributing, renting or exhibiting. If there are the following acts, it can be defined as picture infringement: 1. Publishing pictures without the permission of the copyright owner; 2. Without the permission of the copyright owner, using a photo work by exhibition, filming or similar filming, or using a photo work by adaptation, translation or annotation; 3, the use of other people's picture works, should pay the remuneration but did not pay; 4, did not participate in the creation, in order to seek personal fame and fortune, signed on other people's works, etc.
Legal basis
Article 52 of the Copyright Law of the People's Republic of China commits the following acts of infringement, and shall bear civil liabilities such as stopping the infringement, eliminating the influence, making an apology and compensating for losses according to the circumstances: (1) publishing his works without the permission of the copyright owner; (2) publishing a work created in cooperation with others as a work created by oneself without the permission of the co-author; (three) did not participate in the creation, in order to seek personal fame and fortune, signed the work of others; (4) distorting or tampering with other people's works; (5) Plagiarizing other people's works; (6) Without the permission of the copyright owner, using a work by means of exhibition or filming of an audio-visual work, or using a work by means of adaptation, translation or annotation, unless otherwise provided for in this Law. How to know whether a picture is copyrighted
Check whether a picture is copyrighted or not through the website of intellectual property rights. The principles for determining copyright infringement are as follows:
In judicial practice, the commonly used principles for determining copyright infringement are:
1. Dichotomy of thought and expression
Excluding the idea of a work from the protection scope of copyright law. This is the basic requirement of the principle of copyright law. Article 9, paragraph 2, of the Berne Convention clearly stipulates that copyright protection extends to expression, but not to ideas, processes, operating methods or digital concepts themselves. Article 5 of the draft amendment to the Copyright Law submitted by China's Copyright Bureau on January 8, 1998 (hereinafter referred to as the draft) also added a clause that copyright law protects expression and does not protect ideas, concepts, discoveries, principles, methods, manifestations and processes.
Thought and expression can be clearly distinguished in general works, but in computer software works, the boundary is not clear.
in addition, even if it belongs to the expression of ideas, but the expression belongs to the public domain, such as the unique expression, the expression is also not within the scope of protection.
2. The principle of contact and similarity
After the separation of thought and expression, public domain and private domain, if the two works are the same or similar, it can be judged whether it constitutes plagiarism by whether the authors of the two works have contact or whether the works have traces of contact.
if the works of the obligee and the defendant are the same or similar, and the defendant can't provide the creative process to prove that they were created independently without imitation, the infringement is established. It can be seen that the burden of proof here has been reversed, that is, the author of the accused work proves that he has not contacted the plaintiff's work, otherwise it can be presumed that there is contact.
In judging whether the two works of Chi Qing are the same or similar, there is a so-called substantialpart, that is, the accused works imitate the substantial part of the obligee's works. However, what exactly is the essential part of a work and how to judge it is still a matter of different opinions. This needs further exploration in judicial practice. How to judge whether a picture is copyrighted
To determine whether a picture is copyrighted, it is necessary to judge whether the creator has originality in this work. The work must be the intellectual achievement created by the author, not the plagiarism and plagiarism of others. If the picture belongs to the author's own creation and is original, it can be considered as copyrighted.
1. How to determine whether a picture is copyrighted?
To determine whether a picture is copyrighted or not, it is necessary to judge whether it is original. The work must be the intellectual achievement created by the author, not the plagiarism of others. Creation is a kind of mental work and intellectual activity, which can directly produce literary, artistic and scientific works. The originality of works in copyright law is different from that in patent law. Creativity in patent law requires novelty, and even requires originality. The originality of a work in the copyright law, as long as it is created by itself, is an intellectual achievement that expresses one's ideas and feelings. Even if the level of the work is lower than that of similar works that have already appeared, as long as it is created by oneself, it should be considered original.
Method of obtaining copyright:
"derivative acquisition" refers to the situation that the acquisition of rights is a derivative acquisition of rights based on the existing rights of others. Copyright through derivative acquisition is a part of copyright, that is, it only involves the property rights in copyright, unless it is clearly stipulated by law. The derivative acquisition of copyright mainly includes the following specific situations:
(1) Obtained by agreement.
(2), obtained by inheritance.
(3), obtained by law.
second, how much should be paid for trademark infringement?
according to the Trademark Law of the People's Republic of China, the amount of compensation for trademark infringement refers to the benefits gained by the infringer during the infringement period, or the losses suffered by the infringer during the infringement period, including the reasonable expenses paid by the infringer to stop the infringement.
if the benefits obtained by the infringer due to infringement mentioned in the preceding paragraph or the losses suffered by the infringer due to infringement are difficult to determine, the people's court shall award compensation of less than 5, yuan according to the circumstances of the infringement.
The law stipulates the calculation method for determining the amount of compensation for trademark infringers, and it is difficult to determine the amount of compensation by using legal calculation methods, and the people's court will award compensation of less than 5, yuan. However, the law does not give the victim the initiative to calculate the amount of tort compensation. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Infringement Civil Disputes made up for this shortcoming. The Interpretation stipulates: "When the people's court determines the infringer's liability for compensation according to the first paragraph of Article 56 of the Trademark Law, it may calculate the amount of compensation according to the calculation method selected by the obligee."
when calculating the amount of compensation for infringement, the infringer should not only calculate the loss of trademark infringement, but also calculate the reasonable expenses paid by the infringer for investigation, evidence collection, negotiation, mediation and litigation to stop the infringement, as well as the expenses paid for hiring a lawyer due to litigation.
of course, after the infringer has made the compensation calculation method and calculated the compensation amount according to the law, the people's court should also consider the comprehensive factors such as the nature, period and consequences of the specific infringement, the reputation of the trademark, the license fee and so on before making a final judgment.
In real life, there may be some people who often surf the Internet and browse some pictures, but these pictures are likely to be plagiarized and stolen by others. In this case, it is an infringement of the copyright owned by others, so it is necessary to crack down on this behavior. How to judge whether you have copyright depends mainly on whether he meets the requirements of copyright protection.