Six-year-old children and "Golden Monkey" go to court

This case involves many legal relationships, such as portrait rights, trademark rights, copyright, advertising contracts, etc., and the four legal relationships are intertwined, and in the portrait rights, it also involves the question of whether stills, makeup photos and costume photos have portrait rights

Many people may still remember the slogan "Wear Golden Monkey shoes and take the Golden Avenue". At the beginning of 24, the lawsuit between the famous actor six-year-old children and Shandong Weihai Golden Monkey Group Co., Ltd. (hereinafter referred to as Golden Monkey Group) became lively when the China Lunar Year of the Monkey came. The cause of the case is that the plaintiff, a six-year-old boy, thinks that the Golden Monkey Group used his portrait registered trademark for more than the contract, which constitutes an infringement of his portrait right and trademark right.

Honeymoon between Monkey King and Golden Monkey

Golden Monkey Group is a famous manufacturer of leather shoes. How do "Golden Monkey" shoes appear? In 1995, the Golden Monkey Group, with increasingly strong financial strength, invited a famous actor, a six-year-old boy who played the Monkey King, to advertise the Golden Monkey leather shoes on CCTV, and the result was a blockbuster. At that time, the cooperation period agreed by both parties was five years, and the deadline was the end of 22. During the cooperation period, the six-year-old boy used his image of the Monkey King as a commodity packaging and advertising for the group.

In p>1999, Golden Monkey Leather Shoes was recognized as a well-known trademark in China. This brand has brought more development opportunities to Golden Monkey Group. It not only registered the trademark "Golden Monkey" within the business scope permitted by all national policies, but also took precautions since 1996, and successively registered internationally in six countries including Japan, South Korea, the United States and Cambodia, and defensively registered similar trademarks such as the Monkey King, Sun Dasheng, Monkey King, Monkey King and Sun Walker.

Six-year-old children do commodity packaging and advertising for Golden Monkey Group with his image of the Monkey King. But few people know that the contract between them ended in 22. According to lawyer Yin Qiuyan, the legal adviser of six-year-old children, Golden Monkey Group signed an advertising contract with six-year-old children in 1995, using his image of the Monkey King in The Journey to the West, and shot and produced two images of "Golden Monkey" for commodity promotion. Since then, both parties have renewed the contract every two years or one year, and the contract will be terminated in July 22.

Six-year-old children started a lawsuit to defend their rights

Unexpectedly, when the cooperation ended, the lawsuit came.

On September 19th, 23, when six-year-old children, Benchang You, Klimu and others attended a performance in Changzhi, Shanxi Province, they found that the golden monkey leather shoes here were still advertising by using the "the Monkey King" costume image of six-year-old children. Later, six-year-old children had negotiated with the Golden Monkey Group, but it did not attract the attention of the Golden Monkey Group and continued to use it.

On November 3, 23, six-year-old children sued Golden Monkey Group to the People's Court of Changzhi City, Shanxi Province. The reason for the prosecution was that the images of six-year-old children and the Monkey King were illegally used, which infringed on the portrait right of six-year-old children and the trademark right of six-year-old children's cultural company. Changzhi Bayi Department Store Co., Ltd., which sells golden monkey shoes, was listed as the first defendant. Yin Qiuyan, who represented six-year-old children in the lawsuit, told reporters that this lawsuit is actually two cases. One is that six-year-old children sued Golden Monkey Group for protecting their portrait rights, and the other case is that Shanghai Six-year-old Children's Cultural Industry Co., Ltd. sued Golden Monkey Group for protecting the company's trademark rights. Six-year-old children asked the court to order the two defendants to immediately stop the infringement, publicly apologize and compensate the economic loss of 2, yuan, and the two defendants were jointly and severally liable for compensation.

According to the survey of six-year-old children, golden monkey products in Changchun and Huludao are still using the image of "the Monkey King" for publicity.

Six-year-old boy said in an interview that he cherished the image of "Monkey King" very much, and some businessmen, including foreigners, wanted to buy out his image of Monkey King for a huge sum, but he refused. In order to protect the reputation of the Monkey King, he established the "Six-year-old Children's Culture and Art Company" in Shanghai. Six-year-old children registered with the State Administration for Industry and Commerce in 1995, and others are not allowed to use the image of Monkey King at will, especially not to post it on commodities.

The focus of the trial dispute:

Is the costume image equal to the portrait

At 9: am on December 16th, 23, the case of six-year-old children v. Bayi Department Store and Golden Monkey Group in Changzhi City was heard in public in Changzhi City Court. The focus of the dispute between the two parties in court is whether the costume image is equivalent to the portrait.

In court, the plaintiff cited evidence of infringement: 14 photos proved that Bayi Department Store used the costume photo of Monkey King as the counter decoration, and Golden Monkey Group used the costume image of Monkey King on its shoe boxes, leather shoes certificates and invoice credit cards. The six-year-old children registered their personal trademarks with their portraits.

The plaintiff's six-year-old child was not present, and his attorney with full power claimed that Article 1 of the General Principles of the Civil Law of China stipulates that citizens have the right to portrait, and they shall not use their portraits for profit without their consent. Without the consent of the six-year-old boy himself, the two defendants used the image of the Monkey King's costume he played in The Journey to the West as commodity packaging and advertising on the "Golden Monkey" leather shoes produced and sold, infringing on his portrait rights.

The first defendant, Bayi Department Store, Changzhi City, entrusted a lawyer to argue: First of all, there is no provision in the current laws and administrative regulations of our country that sellers should be obliged to examine whether the products produced by manufacturers and the use of portrait rights in advertising decoration are legal. The original "Golden Monkey" leather shoes were sold in Bayi Building as a commercial activity. As long as the manufacturer has a legal business license and the goods have a certificate of conformity, they can be sold. The plaintiff, a six-year-old child, regarded Changzhi as the place where the portrait was "infringed" in the portrait infringement case, and there was no legal basis for listing Bayi Department Store as the defendant. Secondly, the plaintiff's play of the Monkey King's costume image cannot be equated with his own portrait, and the costume photo is not a portrait, and the window display does not infringe on the portrait rights of six-year-old children.

The attorney of the second defendant, Golden Monkey Group, insisted that the costume photo of the "Golden Monkey" used in its products, with a monkey head and a monkey face, could not be equal to the portrait of a six-year-old child himself, so the portrait infringement case mentioned by the plaintiff could not be established at all. Six-year-old children have no right to claim the portrait right of the Monkey King's costume photo. Moreover, the evidence submitted by six-year-old children cannot prove that the costume photo is my portrait. According to the agreement in the 1996 contract, Golden Monkey Group is the copyright owner of photographic works, and the producer is legally using the costume image, without the consent of the plaintiff. The plaintiff's evidence can't prove the occurrence of infringement, which is not necessarily related to the application of law.

After the trial, the deputy general manager of Golden Monkey Group introduced that in 1995, the Group and the plaintiff signed an agreement to use the image of the Monkey King in The Journey to the West played by the plaintiff, and the plaintiff shot and produced two pictures of the image of "Golden Monkey" for commodity promotion. Later, there were disputes over some labor agreements, which led to the lawsuit of this portrait infringement case.

on the day of the trial, the court did not make a judgment. In an interview on February 16, 24, Yin Qiuyan, a lawyer of six-year-old children, said that the original and the defendant are currently negotiating a solution and strive to reach a satisfactory result this week. Perhaps, negotiation is the best way to solve disputes.

Six-year-olds talk about "Monkey King":

Others know it's me at a glance.

Six-year-olds told reporters that the Monkey King's costume image is the only artistic image registered and protected by the State Administration for Industry and Commerce. Although he has always had a good relationship with Golden Monkey Group, this kind of infringement by Golden Monkey Group is intolerable. Six-year-old children think that it is the best way to solve this problem through legal channels, and this matter will eventually be solved through law, but he also advocates that "harmony should be the most important".

Six-year-olds told reporters about this lawsuit: "This question is very simple, and there is a portrait problem in it. What is this concept? It is the main part of this photo, such as the five senses. When others see it, they know me. This is the portrait. For example, I took out this photo of the Monkey King and asked 1 people, who is this person? People will definitely say that this is a six-year-old child. So this can be identified as a portrait, it's as simple as that. " Six-year-old children said that if the dispute over the portrait right and trademark right of Golden Monkey Group won, he would donate part of the compensation fee of Golden Monkey Group to China Children's Foundation. In the Year of the Monkey, he has provided the artistic image of the Monkey King to the National Olympic Committee for free, hoping that the Monkey King can become the mascot of the 28 Olympic Games.

Facts and evidence show that:

This case involves multiple legal relationships

First, the term of the advertising contract between the two parties. The plaintiff stated that the two parties signed four independent cooperation agreements in 1995, 1996, 1998 and 2, and the last one was an initial agreement, which stipulated that the cooperation period was three years. In fact, it was only performed for two years, that is, from July 1, 2 to July 1, 22, the costume image on the leather shoes sold in Changzhi had passed the use period of power. The defendant Golden Monkey Group insisted that the contract period was from January 1, 2 to December 31, 23, and the costume photos were used within the contract period.

Secondly, there is a dispute about copyright in the contract. The defendant Golden Monkey Group stated in the contract that the plaintiff provided paid labor services for Golden Monkey Group, and produced two negative advertisements, including one costume photo, and the producer of the work was Golden Monkey Group, so Golden Monkey Group owned the copyright of the costume photo. The plaintiff pointed out that the copyright stipulated in the contract refers to the copyright of the creative production work of CCTV's "Golden Monkey Jumping the Great Wall" advertisement, not the negative of the costume photo.

In the case that Shanghai Six-year-old Children's Culture Company sued Golden Monkey Group to protect the company's trademark rights, it also involved the protection of the registered trademark of six-year-old children's portraits. In 1995, six-year-old children registered their portrait trademarks with the State Administration for Industry and Commerce, and others were not allowed to use the image of Monkey King at will, especially not to post it on commodities. The the Monkey King costume image of six-year-old children is the only artistic image registered and protected by the State Administration for Industry and Commerce. Whether the costume image of Golden Monkey Group infringes the portrait trademark, Changzhi Intermediate People's Court will hold a hearing on the case recently.

Finally, the right of portrait in this case. Legally, portrait is the reappearance of citizens' external image. It is an objective comprehensive expression of citizen's form and manner. From the form of expression, portraits include pictures, photographs, videos, videos, sculptures, etc. From the position of performance, the portrait should be based on the face. Portraits should reflect the true features of citizens, and artistic images created by people, such as Ji Gong and Nezha, are not portraits.

As for whether stills, make-up photos and costume photos have the right to portrait, some people in the legal field think that this is not clear in law. The greater the makeup, the less the true expression of the citizen's form and manner, which also affects the degree of the right to portrait infringement. As for the infringement of a specific photo, it depends on the degree of artistic expression and real facial features to make a concrete analysis and confirmation.