An analysis of portraits and portrait rights. Article 100 of the General Principles of the Civil Code states, “Citizens enjoy the right to portraits and may not use citizens’ portraits for profit without their consent.” However, our country’s law has the right to portraits. concept, but the connotation and extension of portrait rights have not been accurately defined in legal terms, and there is no authoritative explanation or regulation of its legal meaning. What is a portrait? According to the opinions of Cihai or experts, such as Professor Yang Lixin of Renmin University of China (doctoral supervisor, one of the drafters of the personal infringement part of my country's Civil Code), a portrait means "similarity, likeness", and "likeness" means comparison with the person. The image of success is also. In layman's terms, it refers to "an image similar to a character made by comparing the character" [1]; it refers to the visual representation of the appearance of citizens on a material carrier through art forms such as painting, photography, sculpture, video, film, and television. image. The right of portrait is the specific personality right of citizens. What are image rights? The right of portrait is the personality right of citizens whose content is based on the interests reflected in their own portraits. Compared with other personality rights, the object of the portrait right itself has certain property interest factors, that is, it can produce economic benefits due to use. In terms of the personality interests of the portrait, there are spiritual interests and property interests, especially property interests and even To be obvious. Generally speaking, a person who is beautiful has the value of beauty, and an ugly person has the value of being ugly. But for ordinary people who are neither ugly nor handsome, few people ask them to do advertisements. This involves the aesthetics of portraits. Value question. Rights, Latin for "jus", refers to both rights and law, and includes the meaning of fairness and justice [2]. Rights, also known as legal rights, are the permission and guarantee that the state, through legal provisions, provides for the subject of a legal relationship to do or not to do a certain act, and to require others to do or not to do a certain act [3]. Divided into political rights, economic rights, social rights, etc., civil rights are divided into property rights (divided into real rights and intellectual property rights) and personal rights based on whether they have property content. Personal rights refer to those that are inseparable and non-transferable and have no direct property content. civil rights[4]. Depending on whether the object is a personal interest or an identity relationship, personal rights are divided into identity rights (enjoyed based on a specific identity, such as spousal rights, parental rights, guardianship rights, etc.) and personality rights. Personality rights refer to the rights that civil subjects must have to maintain their independent personality, with personality interests as the object. Personality interests refer to the rights that civil subjects enjoy regarding their personal freedom and personal dignity, life, health, name, reputation, privacy, portrait, etc. The total benefits [5]. Portrait rights are one type of personality rights. Portrait right is the personality identifier of a natural person and reflects the appearance attributes of the natural person. Its basic content includes three items: First, the exclusive right to make, which means that one can make a portrait at any time in any form, and others are not allowed to interfere. It also means that one has the right to make a portrait. Prohibit others from illegally making one's own portrait; the second is the exclusive right to use, the right to prohibit others from illegally using one's own portrait, which also includes the right to transfer the right to use the portrait; the third is the right to protect interests, except for the right holder , everyone has the obligation not to infringe. Regarding the concept of portrait rights, I would like to remind everyone to pay attention to a few points: 1. Legal persons do not have portrait rights, because portraits reflect the appearance attributes of natural persons, although in language, such as "the glorious image of the agency" has an image description of the legal person; 2. The portrait in the portrait right lies in the "image", which is considered to only refer to the image of the face, facial features and "face". This is not accurate. Portraits cannot just refer to "facial features" and "face", but refer to the reproduction of a natural person's appearance on a material carrier. Of course, it mainly refers to a person's facial image. However, it cannot only be understood as "face" or "face". "Five senses". When the image carried by a photograph is sufficient to identify the person whose image is reproduced, the portrait should be deemed to be that of that person.

For example, the public security organs use their portraits to create wanted warrants in order to hunt down fugitives or other criminal suspects. 7. State agencies use citizens’ portraits for the purpose of enforcing and applying laws (such as in the process of administrative law enforcement); 8. Use other people’s portraits within a certain range for scientific research and cultural education purposes (mainly refers to the scope of social disclosure), For example, for the purpose of clinical medical teaching and scientific research, patient photos are displayed 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 accompanying photos" in articles and news pictures and photographic reports. 2. Standardize picture captions. (Such as the naming of the work, etc.) 3. Don’t believe in “verbal agreements.” 4. Be cautious about using pictures on magazine covers. 5. When submitting your work (for newspapers, magazines, and various film competitions), be sure to add restrictions on the authorization for use of the work after the description. 6. When participating in various photography activities involving hired models, pay attention to the content of the agreement between the organizer and the model. 7. The key is to obtain a written agreement from the portrait rights holder. Although the law has already 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 has become increasingly inescapable from the influence of "interests", especially It is the penetration of economic factors. Therefore, overall, my country's laws regarding the legal protection of portrait rights are still relatively principled. For example, how to define what is "for-profit", whether the pictures on the news media are for-profit; the right to use the portrait of public figures, especially the right to use the portrait of politicians and the entertainment industry; the definition of the right to use the portrait of the deceased, etc. When we deal with photographic portraits, the problems we encounter are often very specific. Therefore, it is very difficult when we rely on these abstract terms to deal with the specific things we encounter. The most difficult thing here is " Profit purpose”. In view of this, as a photographer, when taking portraits of people, especially when using them, you should pay more attention: be cautious, follow the law, and have evidence - these three points are very important. What I mean is that everyone has portrait rights. If you want to use other people’s portrait rights, you must obtain the consent of others - this is the safest way (so today I specially brought some information about "image use" and "works". Samples of contracts and agreements for "agency" and other aspects are for your reference only). Some common questions about "portrait rights": 1. Does the company have the right to use the portrait of its employees? The answer is yes: no! 2. Does the right of portrait only concern the “face”? No! Whenever people see a portrait, they will always think of the recorded personality traits of the legal subject. This personality trait is an important resource in human society, and its potential huge commercial value is especially valued by modern business society (such as A recent TCL mobile phone advertisement featured a Korean female movie star.) The visual image of other body parts with distinctive characteristics will also be reminiscent of the recorded legal subject and the personality characteristics of the legal subject. Therefore, the vision of other body parts with obvious characteristics also belongs to the portrait and is within the scope of portrait right protection. Whether it constitutes a "portrait" is centered on the frontal face of the natural person. It should also test the cognitive level of ordinary people in society and make a comprehensive and comprehensive judgment. It can be seen that if the profile or other parts are shown, and generally familiar people can judge who it represents, then the profile or other parts also constitute a "portrait". 3. Are there portrait rights issues in group photos? have. As we all know, the personality right of the portrait right holder of an individual's portrait exists independently. Once it is infringed, the portrait right holder can claim his rights against the infringer in accordance with the law. However, the portrait right of a collective portrait has its own characteristics. A collective portrait is a collection of independent portraits of each right holder, and has the characteristics of independence and identity. First, each portrait rights holder enjoys independent personality rights in the photo; on the other hand, the collective portrait is physically indivisible (everyone has the right to independently claim rights).

That is, after taking a photo of the subject, ask the subject to leave his name and address on a blank piece of paper, and an enlarged photo will be sent to the subject. In fact, the other side of the blank paper is a folded page with consent written on it. Make a statement like that. This kind of practice is really not advisable! my country's "General Principles of Civil Law" and "Contract Law" both provide for "invalid civil acts". For example, Article 52 of the Contract Law stipulates that if one party concludes a contract by means of fraud or coercion, it shall be deemed an invalid contract. At the same time, my country's "General Principles of Civil Law" also stipulates corresponding principles. One of them is: the principle of "voluntariness, fairness, equal compensation, and good faith". The principle of "good faith" is called the "Emperor Clause" here. : First, in civil activities, civil subjects shall exercise their rights and perform their obligations in good faith and shall not abuse their rights, harm the interests of others, or violate the interests of the state or society. Second, the interpretation of the contract should be based on good faith. That is, when a court or arbitration institution interprets a contract, it should determine 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. What is important is that on this last third point, the principle of "good faith" gives judicial officers a certain degree of discretion! That’s why people call it the Imperial Clause. That is to say: in the case of legal loopholes, the principle of good faith can interpret and fill the law. Therefore, never try to be smart, you must know that "the wise will be misled by the wise".