What is a portrait in the legal sense?
Under what circumstances does it constitute a reasonable use of portrait rights?
How to seek protection for the portrait of the deceased?
Beijing No.1 Intermediate People's Court "The Civil Code is Coming" Series
Take stock for you, and make clear the judgment norms of judicial practice of portrait right protection.
First, the evolution of the protection norms of portrait rights.
From the evolution of relevant norms, we can see the innovation of civil code in protecting portrait rights. The special provisions of the General Principles of Civil Law on the protection of portrait rights can be found in Article 100: citizens enjoy the right to portrait, and their portraits may not be used for profit without their consent. Article 139 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation) (hereinafter referred to as the People's Opinions) stipulates that: for the purpose of making profits, using his portrait for advertising, trademarks, window decoration, etc., without the consent of citizens, shall be regarded as an act of infringement of citizens' portrait rights. At the same time, the above-mentioned norms emphasize the two elements of the infringement of portrait rights-without the consent of the obligee and for the purpose of making profits, which leads the defendant to argue that the non-profit behavior does not constitute infringement in litigation. This inevitably makes people wonder: Why do non-profit behaviors without the consent of the portrait owner, such as sneak shots and unauthorized disclosure of other people's portraits, not constitute infringement? The Supreme People's Court replied in [1990] Min Typing No.28 that the use of Zhu Hong's photos by Shanghai Science and Technology Newspaper and Chen's suspects "aims to publicize medical experience and benefit the society, which has not caused serious adverse consequences and does not constitute an infringement of portrait rights"; At the same time, the reply also mentioned that it is necessary to point out to them that "their portraits should not be used again in the future without the consent of the portrait owner". The reply believes that the behavior involved does not constitute an infringement of the right to portrait, and it is not based on the non-profit nature of the behavior. At the same time, it is pointed out that the portrait right cannot be used without the consent of the portrait right holder, and it is vaguely affirmed that "for profit" is not necessary as an important element to determine the infringement of the portrait right, which has positive guiding significance for practice.
Since then, the Supreme People's Court's Interpretation of Several Issues on Determining the Liability for Compensation for Spiritual Damage in Civil Tort (hereinafter referred to as the Judicial Interpretation of Compensation for Spiritual Damage) has made it clear that when the right of portrait is infringed, compensation for mental damage can be requested, and when the portrait of a natural person is insulted, slandered, defamed or otherwise infringed, his close relatives can request compensation for mental damage, which affirmed the protection of the portrait of the deceased. Article 2 of Tort Liability Law brings the right of portrait into its scope of adjustment, but it does not mention the special norms that identify the infringement of the right of portrait.
To sum up, before the introduction of the Civil Code, in addition to the general rules of tort liability determination, the number of special norms for the protection of portrait rights was limited and the expression was vague. For a long time, in theory and judicial practice, "for profit" in Article 100 of General Principles of Civil Law has been interpreted as an authorized legal norm or a declaration norm of rights, so as to avoid unduly narrowing the scope of protection of portrait rights.
Secondly, it enriches the special norms of portrait right in the civil code.
Compared with the thin protection in the past, the fourth chapter of the personality right of the civil code systematically arranges and enriches the portrait right. Specifically includes the following aspects:
(A) the definition and protection standards of portraits
The second paragraph of Article 10 18 of the Civil Code defines portrait as "the external image of a specific natural person that can be identified through images, sculptures, paintings, etc." . Accordingly, it is necessary to fix the portrait on a certain material carrier first, which is also an important feature that distinguishes the portrait right from other spiritual personality rights such as reputation right, honor right and privacy right. Secondly, portrait is a kind of external image, but it is not limited to facial appearance, side face, physical appearance, back, local close-ups and even cartoons, and can be protected by the right of portrait if it meets the conditions; Finally, the protection of portrait right is based on meeting the standard of "identifiability", that is, the corresponding relationship can be established between external images and specific natural persons. Whether this connection is established or not can be determined by comprehensive factors such as the way of external image, occasion, attachment, popularity of obligee, social communication scope, etc. It is worth noting that regarding the role stills of film and television actors, if the audience can directly correspond to the film and television actors by combining the stills and the actor's popularity and other related factors, instead of just establishing the relationship between the stills and the actor's role, then the actors can also enjoy the portrait rights of the role stills.
Dual nature and content of portrait right.
Because the portrait has the property of being fixed on the material carrier, the portrait right has property interests in addition to spiritual interests. The obligee can obtain the commercial benefits of portrait rights through licensing contracts and other means. Looking around other jurisdictions in the world, there is a difference between the unitary model and the dual model. The former recognizes that the right to portrait has both personal and property attributes, thus incorporating commercial use into the connotation of the right to portrait and protecting it. The latter distinguishes the property interests from the spiritual interests of the portrait right, and establishes another right to protect the property interests (such as the image right of the United States). China's civil code adopts a unitary model, which affirms the dual attributes of portrait rights.
According to the provisions of Article 10 18 and Article 1 019 of the Civil Code, the positive power of the portrait right includes making, using, making public or allowing others to use the portrait according to law, and the acts violating the portrait right include using information technology to make it ugly, deface or defile. The above provisions cancel the expression of "for profit" in the General Principles of Civil Law and Opinions, clarify the connotation of portrait rights, and provide clear guidance for the determination of infringement of portrait rights.
At the same time, in view of the fact that the portrait license contract is the main way of commercial utilization of portrait rights, Articles 102 1 and 1022 stipulate the interpretation rules and the right to terminate the contract in favor of portrait rights holders. In the case that the license period for portrait use is not stipulated or clearly stipulated in the contract, either party may terminate the contract at any time on the premise of meeting the notice period; Even if there is a clear agreement on the allowable use period, the portrait right holder may terminate the contract with justified reasons, but it shall notify the other party before a reasonable period and compensate the losses (except for reasons not attributable to the portrait right holder). Giving the portrait owner the freedom to terminate the contract should be the need to safeguard his personal freedom or interests. In order to balance the contractual interests of the counterpart and the personality protection based on the portrait owner, the portrait owner should only exercise his right to unilaterally terminate the contract when the license period is unknown, such as when the use of the portrait does not conform to the religious or political beliefs of the portrait owner.
(C) the rational use of portrait rights
The production, use and publicity of portraits are very common in real life. In any case, requiring the actor to obtain the consent of the portrait owner will greatly increase the social cost. Article 1020 of the Civil Code increases the norms for the rational use of portrait rights, and clarifies the acts that can be carried out without the consent of the portrait right holder. This article stipulates that fair use is limited to five situations, such as personal study and appreciation, teaching and scientific research, news reports, state organs performing their duties, showing the public environment and other acts to safeguard public interests or the legitimate rights and interests of portrait owners; At the same time, the specific application conditions are also limited as follows: the rational use of personal learning appreciation or teaching and scientific research is limited to the use of published portraits within the necessary scope, and it is not suitable for making, publishing portraits and using unpublished portraits; The rational use of news reports and public environment displays should meet the "inevitable" conditions; The rational use of state organs in performing their duties according to law shall be limited to the necessary scope. Because fair use mostly involves the balance between public interests and the interests of portrait owners, it is necessary to determine whether the related behaviors are proportional by combining the purpose, scope and degree of the behavior and the identity and popularity of the portrait owners. For example, if the public environment displays and uses photos that highlight the image of the portrait owner, it should not be used reasonably; For another example, even if commercial use contributes to social interests, it should not constitute fair use.
Conflict and Coordination between Portrait Right and Copyright
The process of fixing the portrait on the material carrier involves human intellectual creation, so it may constitute a portrait work and thus be included in the scope of copyright protection. Paragraph 2 of article 10 19 stipulates that portrait works bear both portrait rights and copyright: without the consent of the portrait right holder, the portrait right holder may not use or disclose the portrait by publishing, copying, distributing, renting or exhibiting. Therefore, the exercise of copyright should respect the personal interests carried by the portrait and should not infringe on the portrait right of the obligee.
(five) the name of the license and sound protection applied for.
In addition to the norms of portrait right, the chapter of portrait right of personality right also stipulates that the license of name should refer to the relevant provisions of the license of portrait right, and the protection of natural person's voice should refer to the relevant provisions of the protection of portrait right. In view of the natural person's voice, we can learn from the identifiability standard, dual attribute and use license in the protection of portrait right, and the sound protection also involves the problem of reasonable use. However, there are differences between the two in the specific identification of infringement (such as voice can not be defiled but often imitated), the specific reference factors of identifiability, and the specific circumstances of rational use. The relevant norms of natural person voice protection need to be enriched and improved through legislation and justice on the basis of colorful practice.
Third, the practice and application of the norms for the protection of portrait rights.
In practical application, it should be noted that the protection norms of portrait right are not limited to the fourth chapter of personality right compilation, but should also be placed in the framework of personality right compilation, and combined with the relevant norms of tort liability determination, the general provisions applicable to personality right compilation should be investigated and analyzed. At the same time, in practice, we need to pay attention to the meaning of "for profit" and the defense of public figures.
(A) the meaning of "for profit"
Although the Civil Code no longer makes special provisions on the commercial use of portraits, it is still meaningful to determine the tort liability of portrait rights. First, as far as the establishment of tort liability is concerned, according to Article 998 of the Civil Code, the purpose, manner and consequences of the act should be considered when determining that the actor bears civil liability for infringing the right to portrait. Therefore, the purpose and situation of profit should be included in the consideration of the establishment of tort liability of portrait right. Secondly, in terms of whether it can constitute fair use, the production, use and publicity of portraits for profit should not have the basis of advocating fair use and thus exemption. Third, as far as the amount of compensation is concerned, according to Article 1 182 of the Civil Code, when property losses are caused by infringement of portrait rights, the amount of compensation can be determined according to the interests obtained by the infringer. At the same time, according to article 10 of the judicial interpretation of mental damage compensation, the infringer's profit should also affect the determination of the amount of mental damage compensation. However, because judicial interpretation is based on the general principles of civil law, this part of the identification rules needs to be updated after the implementation of the civil code.
(B) the application of public figures' defense
When the dispute over portrait rights involves public figures such as entertainment stars, politicians and celebrities, the defendant often argues that it does not constitute infringement on the grounds of public figures' defense. Public figures are usually closely related to public interests and interests, and their influence is more extensive than that of ordinary people. Therefore, it is justified to restrict their personality rights within a proper range, but this restriction should not be endless. Article 999 of the general part of the series of personality rights clearly stipulates that those who conduct news reports and supervision by public opinion for the public interest may reasonably use the portrait of the civil subject, and those who unreasonably use it to infringe the personality rights of the civil subject shall bear civil liability according to law. Combined with the special provisions of Article 1020 on the rational use of portrait rights, the defense of public figures should be limited to the production, use or publicity of portraits involving public interests and supervision by public opinion, and others.
(3) the protection of the portrait of the deceased
Although the right of personality loses its foundation after the death of a natural person, its portrait and reputation will not disappear immediately because of death. This kind of personality interest condenses the efforts and values of a natural person before his life, and it is still necessary to protect him after his death. According to Article 994 of the Civil Law, when the portrait of the deceased is infringed, his spouse, children and parents have the right to request the perpetrator to bear civil liability according to law; If the deceased has no spouse or children and his parents have died, other close relatives have the right to request the infringer to bear civil liability according to law. Compared with Article 18 of Tort Liability Law, the Civil Code divides the "close relatives" who have the right to claim responsibility-that is, spouse, children and parents are the close relatives who have the first right to claim, and other close relatives are the close relatives who have the second right to claim-which is basically consistent with Article 7 of the judicial interpretation of mental damage.
(D) the expansion of compensation for mental damage
Usually, the application of compensation for mental damage involves personal rights tort liability disputes, but in non-portrait rights tort liability cases, the obligee can still claim compensation for mental damage through the following two ways:
1. Compensation for mental damage in portrait license contract. Article 996 of the series of general principles of personality rights stipulates that if one party's breach of contract damages the other party's personality rights and causes serious mental damage, the injured party chooses to ask him to bear the liability for breach of contract, which does not affect the injured party's request for compensation for mental damage. This clause can be applied to portrait licensing contracts. If the licensee has any breach of contract that damages the portrait right, such as damaging or defacing the portrait, the portrait owner has the right to claim compensation for mental damage in the case of serious mental damage.
2. Compensation for mental damage when the content of portrait right is infringed. The second paragraph of Article 1 183 of Tort Liability Law of Civil Code has applicable space in the protection of portrait rights. This article stipulates that if serious mental damage is caused to a specific object with personal significance to a natural person due to intentional or gross negligence, the infringed person has the right to claim compensation for mental damage. If the property rights and interests are infringed, compensation for mental damage is generally not applicable, and this article provides exceptions in specific circumstances. When the infringed object is the carrier of other people's portraits, such as damaging the copyless wedding photo film, and the infringed person suffers serious mental damage, he may request compensation for mental damage.
To sum up, the Civil Code has made special provisions on the protection of portrait rights, which provides more clear behavior and judgment guidance for social life and judicial practice. In the judicial practice of portrait right protection, we should combine the general provisions of personality right compilation, tort liability compilation and special norms of portrait right to form a complete system of portrait right protection norms, so as to provide more thoughtful civil law protection for portrait right holders.