What are portrait rights? What are the specific contents of portrait rights?

Legally, portrait is a kind of personality interest generated by citizens based on their spiritual activities. Portraits have the following legal characteristics: First, portraits are the reproduction of a citizen’s external image. It is an objective and comprehensive expression of the form and demeanor of citizens. From the perspective of expression, portraits include drawings, photographs, videos, videos, sculptures, etc.; from the perspective of parts of expression, portraits should mainly focus on the face. Portraits should reflect the true appearance of citizens. The artistic images created by people, such as Jigong and Sun Wukong, are not portraits. Second, portrait is a kind of thing in civil law. Because the portrait must be separated from the person, fixed on a certain material carrier, and can be controlled by human beings, and has a certain value, the portrait is a thing under civil law. For example, a photo is a kind of thing. Third, portraits are a reflection of citizens’ personality interests. In addition to protecting portraits, the law also provides special protection for portraits, because portraits are a reflection of citizens’ personal interests.

The so-called right of portrait refers to the right of citizens (including disabled citizens) to enjoy interests in their own portraits and to exclude others from infringement. The basic contents of portrait rights include:

1. Exclusive right to produce portraits. The production of portraits refers to the act of expressing a person's image through a certain method and fixing it on a certain material carrier. Only after being made can a person's image become a portrait and be made available to people in material form. The production of the portrait can be done by the portrait owner himself or by others. However, if it is completed by others, the producer needs to obtain the consent of the image right holder. Making a portrait of another person without the consent of the portrait owner, even if it is not published or displayed, constitutes an infringement of the portrait owner's exclusive right to produce portraits. For example, a certain person secretly took many photos of young girls for his own enjoyment. Although he did not publish or display these photos, he also violated the exclusive rights of these young women to produce portraits.

2. Exclusive right to use likeness. This means that citizens have the right to use their own portraits in a legal manner, and to obtain spiritual satisfaction and material benefits through the use of their portraits. Citizens’ exclusive rights to use portraits include two aspects: their own use and their transfer to others. When the portrait right holder is transferred to others for use, the portrait right holder is entitled to receive corresponding remuneration; of course, if the portrait right holder is willing, he can also transfer the portrait to others for free. However, when transferring a portrait to another person for use, the portrait right holder should clearly agree with the transferee on the method, occasion, time, location, remuneration and payment method, liability for breach of contract, etc., to avoid future disputes. .

3. The right to protect interests. This means that the portrait right holder has the right to prohibit others from maliciously and illegally damaging, defiling, or deflating his or her portrait. When others infringe upon his or her portrait rights, he or she has the right to require the other person to stop the infringement and take necessary measures to prevent the occurrence and loss of the infringement. expand. The infringer has the right to require the infringer to bear corresponding civil liability and compensate for the losses caused by his infringement to the portrait right holder.

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Portrait refers to the image of a natural person reproduced in a certain material form. The right of portrait is the right enjoyed by a natural person. The personal interests embodied in the portrait are the rights to the content. Its contents include: portrait ownership, production rights and portrait use rights, etc. Article 100 of the "General Principles of the Civil Law" stipulates: "Citizens enjoy the right of portrait, and no citizen's portrait may be used for profit-making without the consent of the citizen." It can be seen that without the consent of the citizen, the portrait of another person is used for profit-making advertising or trademarks , product packaging, window decoration, etc., are relatively common behaviors that seriously infringe on portrait rights. Infringement of portrait rights mainly manifests itself in the following aspects:

⑴ Using other people’s portraits without their consent. The general principles of my country's civil law stipulate that no citizen's portrait may be used for profit-making purposes without the consent of the citizen. Therefore, some people believe that using another person’s likeness for profit without the other person’s consent constitutes an infringement of the right to likeness. The use of another person's likeness without the other person's consent but not for profit-making purposes does not constitute an infringement of the right of likeness.

We believe that using another person’s likeness for profit-making purposes without their consent is a more serious infringement, but using another person’s likeness for profit-making purposes without the other person’s consent should also constitute an infringement of portrait rights. Because the right to portrait is a personality right like the right to name, it is exclusive. The possession, use and disposal of the portrait can only belong to the citizen himself, and no other person can enjoy it without his consent.

⑵ Create portraits of others without authorization. Portraits are the external manifestation of a citizen's personality, and only the citizen himself has the right to decide whether to objectively reproduce his or her own image. Therefore, it is also an infringement to create a portrait of another person without his or her consent. For example, secretly taking photos of others; making paintings and sketches of others without their consent, etc., all constitute infringement of portrait rights.

⑶Own other people’s portraits without authorization. Possessing other people's photos without their consent, even if they are used without publicity, also constitutes an infringement of portrait rights. If a photo studio takes photos of customers and then retains the customer's photos without the customer's consent, the customer shall have the right to request their return. Another example is stealing other people's photos for appreciation purposes. This behavior also infringes on other people's portrait rights.

(4) The act of damaging another person’s portrait in an insulting manner can only be constituted if the perpetrator has the subjective intention to damage the other person’s portrait. For example, deliberately obliterating the portrait of another person and making it public; or deliberately destroying the portrait of another person in public to insult the portrait owner; deliberately vilifying the image of another person, etc.

However, the following situations do not constitute infringement of portrait rights:

(1) Using portraits of newsworthy figures, such as party and state leaders, political activists, and people’s congress representatives , scholars, athletes, etc., the use of their portraits in order to report their activities and advanced deeds does not constitute an infringement.

⑵ Use portraits of people who participated in rallies and garden activities with reportable value. People who participate in these events cannot claim their image rights. Photographing and using the portraits of participants for the purpose of reporting an event does not constitute infringement.

⑶Create landscape paintings or photos in scenic spots, use people as embellishments, or take photos to include other people in them. In these situations, the person is not the main focus and does not constitute a portrait. rights infringement.

(4) Using other people’s portraits for the purpose of exercising legitimate public opinion supervision. For example, if you take photos of an act of destroying cultural relics and publish it "as a photo," this is legitimate public opinion supervision and does not constitute an infringement of portrait rights.

⑸Using the portrait of a criminal for the purpose of arresting a criminal or reporting a major adjudicated case does not constitute infringement.

⑹Use a citizen’s portrait for the citizen’s own benefit. For example, in order to find a citizen whose whereabouts are unknown, a photo of the citizen is published when publishing a missing person notice.

⑺Use portraits of citizens as evidence. The use of another person's likeness in litigation activities to prove a certain fact or to assert rights as evidence does not constitute infringement. However, if it exceeds the necessary scope, it will constitute infringement