I. General principles
Citizens' right to copy their own image-the right to agree or disagree to copy their own image in objective material media and space; Citizens have the right to use their own portraits, to allow others to use their own portraits, and to prohibit others from using their own portraits.
Two. the basis of law
1. Article 100 of the General Principles of Civil Law of People's Republic of China (PRC).
Citizens have the right to portrait, and their portraits shall not be used for profit without their consent.
It can be seen that the behavior that constitutes a violation of citizens' portrait rights usually has two elements: first, without their consent; The second is for the benefit. The common infringement of citizens' portrait rights is mainly the use of other people's portraits in commercial advertisements, commodity decoration, book covers, printed calendars, etc. without their consent.
The victim can stop the infringement of portrait rights by himself, for example, demanding to hand over the film he shot and removing the portrait from public display. You can also request the actor to stop the infringement, remove the obstruction, eliminate the influence or compensate for the losses according to law. The right to claim damages does not require property damage.
2 the Supreme People's Court's opinions on several issues concerning the implementation of the general principles of the civil law. Article 139 stipulates that
For the purpose of making profits, citizen portraits are used as advertisements, trademarks, window decorations, etc. Without the consent of citizens, it is regarded as an act of infringing on citizens' portrait rights. ? In addition, maliciously damage, deface, and vilify citizen portraits, or use citizen portraits for personal attacks. , also belongs to the infringement of portrait rights.
Three. Compensation for infringement of portrait right
The loss of infringement of portrait right is generally spiritual compensation. Article 10 of the Interpretation of the Supreme Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Torts "The amount of compensation for mental damage is determined according to the following factors:
1. The degree of fault of the infringer, unless otherwise provided by law;
2. Specific circumstances such as means, occasions and behaviors of infringement;
3. Consequences caused by the infringement;
4. The profits of the infringer;
5. The economic ability of the infringer to take responsibility;
6. The average living standard in the seat of the Court of Appeal.
Extended data:
Case:
Recently, the People's Court of Anyuan District, Pingxiang City, Jiangxi Province concluded a dispute over portrait rights and privacy rights. According to the law, the court ruled that a sports company in Pingxiang apologized to the plaintiff Fang on the official account of WeChat, and compensated Fang for some economic losses and mental damages 1000 yuan.
2065438+On February 25th, 2006, the plaintiff applied for the annual card in a fitness club operated by a sports company in Pingxiang. On September 3rd, Fang shared a message in his WeChat circle of friends: "I learned a recipe for losing weight from Yijing today, and now I give it to the right person" with 9 photos.
On September 2 1 day, Yimou, an employee of the defendant company, shared a content in a circle of friends: "Instead of finding a thousand reasons to prove that he is not a coward, it is better to prove that he is a warrior with a result and insist on the effect of exercise! Perseverance deserves our admiration! Come and join us! " Attached are four photos, three of which are personal photos shared by Fang on WeChat, and the other is a QR code picture of Yimou.
Fang learned through friends that his photos were used by Yimou, and the content has been widely spread. In the afternoon, Yimou deleted all the photos of Fang, and then the two sides communicated on this matter. The two sides can't reach an agreement on how to compensate, so they can take the company to court.
After hearing the case, the court held that citizens' rights of reputation, portrait and privacy were protected by law. The defendant, for the purpose of making profits, used the plaintiff's photos for commercial promotion of his company without the plaintiff's consent, which violated the plaintiff's portrait right. The court then made the above judgment.
China Court Network-Trial-Civil Cases