Analysis on infringement cases of using other people’s portraits for profit without permission

Portrait rights are rights that everyone has. Regarding infringement caused by unauthorized use of other people's portraits for profit without permission, you can understand the principles of handling through some case analysis. Let’s learn about the analysis of infringement cases of using other people’s portraits for profit without permission!

A case of infringement of using other people’s portraits for profit without permission

Case introduction

A Nanjing brand management company (hereinafter referred to as a brand management company) has not obtained permission from the actor Tong A certain brand management company was given permission to use Tong’s photos for reporting and publicity. After Tong found out, he sued the court and demanded that a certain brand management company bear infringement liability. Recently, the Beijing No. 1 Intermediate People's Court concluded the case and finally determined that a brand management company had infringed Tong's portrait rights.

A brand management company published an article in a newspaper about the popular patented eye-beautification without surgery and the urgent recruitment of 50 women with eye failure. A photo of Tong was used in the article for illustration. picture. Tong sued the court for infringement of his portrait rights and a decline in his social evaluation caused by the report, demanding a public apology from a brand management company and compensation for losses.

In the first instance, a brand management company argued that the pictures involved were purchased and were used purely for illustrations without any malicious intent. At the same time, the report involved was only published for one day, the circumstances were minor, and there were no harmful consequences, so we disagreed with the plaintiff’s claim.

The court of first instance held that a brand management company violated Tong’s portrait rights by using his photos without his authorization. However, the behavior involved in the case will not cause psychological or mental pain to Tong, and a brand management company did not infringe on Tong’s reputation. In summary, the court of first instance ruled that a brand management company should apologize to Tong and compensate him for economic losses of 15,000 yuan.

After the verdict, a brand management company was dissatisfied, believing that the image was obtained legally and that it did not have a substantial impact on Tong. It appealed to the Beijing No. 1 Intermediate People's Court, requesting that the verdict be changed in accordance with the law.

The Beijing No. 1 Intermediate People’s Court held that although a brand management company claimed that the pictures involved were purchased from a third party, it could not prove that the third party had obtained Tong’s authorization and that the behavior involved was obviously profitable. purpose, so his behavior infringed upon Tong’s right of portrait. In the end, the Beijing No. 1 Intermediate Court rejected the appeal of a brand management company and upheld the original verdict.

The judge’s statement

In judicial practice, non-profit use of another person’s portrait without the person’s consent may also constitute an infringement of other people’s portrait rights. Article 100 of the General Principles of the People's Republic of China and the Civil Law stipulates: Citizens enjoy the right of portrait, and citizens' portraits may not be used for profit without their consent. ?Article 120 stipulates:?Citizens whose rights to name, portrait, reputation, and honor have been infringed have the right to demand an end to the infringement, restore reputation, eliminate the impact, apologize, and may demand compensation for losses. ?

In cases of infringement of portrait rights, in addition to whether it constitutes an infringement, it is easy to become the focus of the case. Several issues such as whether it also constitutes an infringement of reputation rights, whether moral comfort payments need to be paid, and how to determine the amount of damages are also the same. Easily become the focus of controversy.

First of all, whether the infringement of the right of portrait also infringes the right of reputation, the main consideration is whether the infringement is enough to cause the public to misunderstand the portrait right holder due to the infringement of portrait, and whether it has caused a negative impact on the social evaluation of the portrait right holder. reduce. If the infringement is enough to cause public misunderstanding and reduce the social evaluation of the portrait right holder, it should be deemed as an infringement of the right of reputation. Otherwise, it does not constitute an infringement of the right of reputation.

Secondly, regarding whether solitary payments for mental damage should be supported. Relevant judicial interpretations stipulate that if an infringement causes mental damage but does not cause serious consequences, the victim's request for compensation for mental damage will generally not be supported. The people's court may order the infringer to stop the infringement, restore his reputation, eliminate the impact, and make amends based on the circumstances. Apologize. ?Therefore, whether it is necessary to pay solatium for mental damage requires a comprehensive consideration of the degree of mental damage of the infringed party. If no serious consequences are caused, mental damage solatium will generally not be supported.

Finally, for support of solatium for mental damage, the amount of damages generally needs to be determined based on factors such as the possible profits of the infringing party, the extent of the dissemination of the infringing content, and the loss status of the infringed party.

Strictly speaking, in photography activities, as long as one of the following circumstances occurs, it can be regarded as infringing on the portrait rights of others:

1. When there is no reason to prevent the violation of the law Under the circumstances, the act of using the portrait without the consent of the portrait owner.

2. Making portraits of others without authorization (including possessing photos of others). The act of creating and possessing other people's portraits (photos) without their consent. For photographers, it is the act of secretly taking photos of others.

3. Maliciously insult and deface other people’s portraits. That is, the wrongdoer maliciously infringes the portrait of others or destroys the integrity of the portrait of others by insulting, vilifying, defiling, damaging, etc. Including altering, distorting, burning, tearing or hanging other people's photos upside down, such behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.

Based on the above, in photography practice, there are often three situations that constitute infringement of portrait rights:

In recent years, there have been reports of so-called infringement of portrait rights. There seems to be an increasing trend, why? I think there are many reasons, but it may be boiled down to three types: first, the photographer does not understand the law; second, the photographer intentionally infringes on other people’s portrait rights with the intention of making a profit; third, It's because the person being photographed doesn't understand the legal meaning of portrait rights, and will sue for compensation whenever his or her portrait is published in the newspapers.

1. For profit-making purposes, two conditions must be met at the same time: First, the use of another person’s portrait without the person’s consent; Second, the act is for profit-making purposes and infringes upon the rights of others. Portrait rights mean that users subjectively hope to obtain economic benefits through the use of other people's portraits. However, the so-called "making a profit" does not mean that there must be actual profit-making as we usually understand. As long as there is a subjective intention to make a profit and there is an objective profit-making behavior, regardless of whether the actor achieves the purpose of making a profit, it constitutes an actual "profit-making" thing.

2. If you infringe the portrait rights (right of reputation, honor) of others in any form, you will also bear legal responsibility: that is, the offended person has the right to ask the infringer to stop the infringement, restore reputation, eliminate the impact, Apologize and compensate for losses. It can be seen that if the portrait of another person is used without the permission of the portrait right holder and not for profit, if it causes actual damage to the portrait right holder, such as causing mental damage to the portrait right holder, the user will also constitute an infringement (portrait copyright infringement). rights) responsibilities. In judicial practice, there are also many cases where citizens’ portraits are defaced, vilified, and distorted for no profit-making purpose.

The above can clearly show that: Whether it is for profit or not is not the only prerequisite and requirement for determining whether there is an infringement of citizens' portrait rights, but is only an important factor in determining the size of the infringement liability.

3. Although the portrait right holder agrees to use his or her portrait, the user has exceeded the scope, area, and time limit of use permitted by the portrait right holder. This situation does not require actual damage to the portrait right holder to constitute infringement liability. Of course, this situation generally falls under the liability for breach of contract.

Standards for identification of infringement of portrait rights

Article 100 of my country's "General Principles of Civil Law" stipulates that citizens enjoy the right to portrait and may not use citizens' portrait rights for profit-making purposes without their consent. portrait. ?It can be seen that to constitute an infringement of a citizen’s right to portrait, two elements should usually be met: first, without the person’s consent; second, for the purpose of profit. Common infringements on citizens’ portrait rights include using other people’s portraits for profit-making purposes such as commercial advertising, product decoration, book covers, and printed calendars without the consent of the individual. For infringement of portrait rights, the victim can stop it on his own, such as requesting the surrender of the film taken, removing the public display of the portrait, etc. The victim can also request the offender to stop the infringement, eliminate obstacles, eliminate the impact, or compensate for losses according to the law. The right to claim compensation for losses does not require property damage.

Other laws and judicial interpretations also make some corresponding provisions on the infringement of portrait rights. Article 139 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the "General Principles of Civil Law" stipulates: For the purpose of making profits, without the consent of citizens, Using his or her portrait for advertisements, trademarks, window decorations, etc. should be considered an infringement of a citizen's portrait rights. In addition, maliciously damaging, defiling, or besmirching a citizen's portrait, or using a citizen's portrait to carry out personal attacks, etc., is also an infringement of portrait rights.

Compensation standards for infringement of portrait rights

Losses caused by infringement of portrait rights are generally mental compensation.

Article 10 of the Supreme Court's "Interpretation on Several Issues Concerning the Determination of Liability for Mental Damage in Civil Torts": The amount of compensation for mental damage is determined based on the following factors: (1) The degree of fault of the tortfeasor, as otherwise provided by law Exceptions;

(2) The specific circumstances of the infringement, such as the means, occasion, mode of conduct, etc.;

(3) The consequences of the infringement; (4) The infringer’s profits Situation;

(5) The infringer’s financial ability to bear liability; (6) The average living standard in the location of the court being sued.