How to determine picture infringement

Legal analysis

Pictures that have not been authorized by the copyright owner or portrait rights holder are infringements. No organization or individual may infringe on the portrait rights of others by vilifying, defacing, or using information technology means to forge or otherwise infringe. Without the consent of the portrait right holder, the portrait of the portrait right holder shall not be produced, used, or disclosed. Without the consent of the portrait right holder, the right holder of the portrait work shall not use or disclose the portrait of the portrait right holder in any manner such as publishing, copying, distributing, renting, or exhibiting. The following behaviors can be defined as picture infringement: 1. Publishing pictures without the permission of the copyright owner; 2. Using pictures for exhibitions, making movies, or using methods similar to making movies without the permission of the copyright owner, or using Using picture works by adapting, translating, annotating, etc.; 3. Using other people’s picture works, and should have paid remuneration but not paying; 4. Not participating in the creation, and signing other people’s works in order to seek personal fame and fortune, etc.

Legal Basis

Article 52 of the Copyright Law of the People's Republic of China. Anyone who commits the following infringement acts shall, according to the circumstances, be responsible for stopping the infringement, eliminating the impact, and making amends. Civil liabilities such as apology and compensation for losses: (1) Publishing a work without the permission of the copyright owner; (2) Publishing a work created in collaboration with others as a work created alone without the permission of the co-author; (3) ) did not participate in the creation, but signed other people's works in order to seek personal fame and fortune; (4) distorted or tampered with other people's works; (5) plagiarized other people's works; (6) exhibited or filmed audio-visual works without the permission of the copyright owner Use the work in any way, or use the work in the form of adaptation, translation, annotation, etc., except as otherwise provided for in this Law. How to know whether a picture has copyright?

To check whether a picture has copyright, you can check it through the intellectual property website. The principles for identifying copyright infringement are as follows:

In judicial practice, commonly used The principles for identifying copyright infringement are:

1. Dichotomy between ideas and expressions

Exclude the idea of ??a work from the scope of protection of copyright law. This is a basic requirement of copyright law principles. Article 9, paragraph 2, of the Berne Convention clearly stipulates that copyright protection extends to expressions, but not to ideas, processes, methods of operation or digital concepts themselves. Article 5 of the draft amendment to the Copyright Law (hereinafter referred to as the draft) submitted by the my country Copyright Office on January 8, 1998 also added the copyright law to protect expressions, but not to protect ideas, concepts, discoveries, principles, methods, embodiments and processes. terms.

Thought and expression can be clearly distinguished in general works, but in computer software works, the boundaries are not clear.

In addition, even if it is an expression of thought, but the expression belongs to the public domain, for example, if it is a unique expression, the expression is also not within the scope of protection.

2. Principle of Contact and Similarity

After separating thought and expression, public domain and private domain, two works can be approved if they are the same or similar. Whether there is contact with the author or there are traces of contact in the work to determine whether it constitutes plagiarism.

If the rights holder’s work is identical or similar to that of the defendant, and the defendant is unable to provide its creative process to prove that it did not imitate but created independently, infringement will be established. It can be seen that the burden of proof here has been reversed, that is, the author of the accused work must prove that he has not had contact with the plaintiff's work, otherwise it can be presumed that there has been contact.

In determining whether two works are identical or similar, there is the so-called substantive part, that is, the accused work imitates the substantive part of the right holder's work. However, what is the substantive part of a work and how to judge the substantive part is still a matter of opinion. This remains to be further explored in judicial practice.

How to determine whether a picture has copyright?

To determine whether a picture has copyright, you need to determine whether the creator has originality for the work. The work must be the intellectual achievement created by the author, and not plagiarism or plagiarism from others. If the picture is created by the author and is original, it can be considered copyrighted.

1. How to determine whether a picture has copyright?

To determine whether a picture has copyright, you need to judge whether it is original. The work must be the intellectual achievement of the author, not plagiarism of others. . Creation is a kind of mental work and intellectual activity that can directly produce literary, artistic and scientific works. The requirements for the originality of a work under copyright law are different from those for creativity under patent law. Inventive step in patent law requires that the invention must be novel, and even must be the first of its kind. The originality of a work in the copyright law, as long as it is created by oneself, is an intellectual achievement that expresses one's own ideas and feelings. Even if the level of the work is lower than the level of similar works that have already appeared, as long as it is created by oneself, it should be deemed to have the originality. originality.

How to acquire copyright:

"Successive acquisition" refers to the situation where the acquisition of rights is a derivative acquisition of rights based on the existing rights of others. Copyrights acquired through inheritance are partial copyrights, that is, they only involve the property rights in the copyright, unless otherwise expressly provided by law. The inherited acquisition of copyright mainly includes the following specific circumstances:

(1) Acquisition due to agreement.

(2) Obtained by inheritance.

(3) Obtained due to legal provisions.

2. How much compensation should be paid for trademark infringement?

The "Trademark Law of the People's Republic of China" stipulates: The amount of compensation for trademark infringement shall be the amount of compensation that the infringer shall pay for the infringement during the infringement period. The benefits obtained, or the losses suffered by the infringed party due to the infringement during the period of infringement, include reasonable expenses paid by the infringed party to stop the infringement.

If it is difficult to determine the benefits gained by the infringer due to the infringement or the losses suffered by the infringed party due to the infringement as mentioned in the preceding paragraph, the people's court shall award a compensation of not more than 500,000 yuan based on the circumstances of the infringement. .

The law stipulates the calculation method for determining the amount of compensation for trademark infringers. If it is difficult to determine the amount of compensation using statutory calculation methods, the people's court will award a compensation of less than 500,000 yuan. However, the law does not give the victim the initiative in calculating the amount of compensation for infringement. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Trademark Infringement makes up for this shortcoming. The "Interpretation" stipulates: "When the people's court determines the infringer's liability for compensation in accordance with the provisions of Article 56, Paragraph 1, of the Trademark Law, it may calculate the amount of compensation according to the calculation method selected by the right holder."

Being When calculating the amount of infringement compensation, the infringer must not only calculate the losses caused by trademark infringement, but also calculate the reasonable expenses paid by the infringer for investigation, evidence collection, negotiation, mediation, litigation, etc. to stop the infringement, as well as the costs incurred due to litigation. Fees paid to hire an attorney.

Of course, after the infringed party has calculated the compensation method and calculated the amount of compensation in accordance with the law, the people's court should also consider the nature, duration, consequences of the specific infringement, the reputation of the trademark, the license fee, etc. The final decision was made after considering the factors.

In real life, there may be some people who often surf the Internet and browse some pictures, but these pictures are very likely to be plagiarized and stolen from others. In this case, they belong to The problem of infringing the copyright owned by others, so this behavior must be cracked down on. How to judge whether you have copyright, mainly depends on whether it meets the requirements for copyright protection.