Infringement cases of using portraits of others for profit without permission
Case introduction
A brand management company in Nanjing (hereinafter referred to as the brand management company) used children's photos for reporting and publicity without the permission of actors and children. After Tong found out, he sued the court and asked a brand management company to bear tort liability. Recently, Beijing No.1 Intermediate People's Court concluded the case and finally concluded that a brand management company had infringed on the child's portrait right.
A brand management company published an article in the newspaper entitled "Cosmetic Contact Lenses's patent of fixed knife is popular, and 50 women with eye failure are rapidly increased", in which a photo of Tong is used for illustration. Tong appealed to the court on the grounds that he violated the right to portrait and the report led to the decline of his social evaluation, demanding that a brand management company publicly apologize and compensate for the losses.
In the first trial, a brand management company argued that the pictures involved were purchased and only used for matching pictures, and there was no malice. At the same time, the report involved in the case was only published for one day, and the circumstances were minor and there were no harmful consequences, so the plaintiff's claim was not agreed.
The court of first instance held that a brand management company used its photos without Tong's authorization, which infringed Tong's portrait right. However, the behavior involved will not cause psychological or spiritual pain to Tong, and a brand management company has not violated Tong's reputation right. To sum up, the court of first instance ruled that a brand management company apologized to Tong and compensated the economic loss of15,000 yuan.
After the verdict, a brand management company refused to accept it, thinking that the way to obtain the pictures was legal and did not have a substantial impact on Tong, and filed an appeal for revision to Beijing No.1 Intermediate People's Court according to law.
After trial, 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 was authorized by the child himself and the behavior involved had obvious profit purpose, so its behavior violated the child's portrait right. In the end, Beijing No.1 Intermediate People's Court rejected the appeal of a brand management company and upheld the original judgment.
The judge's statement
In judicial practice, using other people's portraits for non-profit purposes without my consent may also constitute an infringement of other people's portrait rights. The General Principles of the Civil Law of People's Republic of China (PRC) and Article 100 of the Civil Law of People's Republic of China (PRC) stipulate: "Citizens have the right to portrait, and their portraits may not be used for profit without their consent." Article 120 stipulates: "If a citizen's right to name, portrait, reputation and honor is infringed, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology, and may demand compensation for losses."
In the case of infringement of portrait rights, it is easy to become the focus of controversy whether it also constitutes infringement of reputation rights, whether it is necessary to pay spiritual comfort money and how to determine the amount of damages.
First of all, whether the infringement of the right to portrait also infringes the right to reputation mainly depends on whether the infringement is enough to make the public misunderstand the right holder of portrait and whether it will reduce the social evaluation of the right holder of portrait. If the infringement is enough to cause public misunderstanding and reduce the social evaluation of the portrait owner, it should be considered as an infringement of the right of reputation, otherwise it will not constitute an infringement of the right of reputation.
Secondly, whether compensation for mental damage should be supported. The relevant judicial interpretation stipulates that "if the infringement has caused mental damage to people, but it has not caused serious consequences, the victim's request for compensation for mental damage is generally not supported, and the people's court may order the infringer to stop the infringement, restore his reputation, eliminate the influence and apologize according to the circumstances." Therefore, whether it is necessary to pay mental damages or not depends on the degree of mental damages of the infringed. If it has not caused serious consequences, it will generally not be supported by compensation for mental damage.
Finally, for those who support mental damages, it is generally necessary to consider the amount of damages in combination with the possible profits of the infringer, the spread of the infringing content, the losses of the infringed person and other factors.
Strictly speaking, in photography activities, as long as there is one of the following circumstances, it can be considered as infringement of the portrait rights of others:
1. The act of using the portrait of the portrait owner without the consent of the portrait owner without hindrance and illegal reasons.
2. Making portraits of others without authorization (including having photos of others). The act of creating and possessing portraits (photos) of others without my consent. For a photographer, it is the act of taking pictures of others.
3. Malicious insults and uglification of other people's portraits. That is, the actor maliciously insults, vilifies, defiles, damages or destroys the integrity of other people's portraits. Including altering, distorting, burning, tearing up or hanging upside down other people's photos, this kind of behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.
To sum up, in photography practice, there are three situations that often constitute infringement of portrait rights:
In recent years, there seem to be more and more reports of so-called infringement of "portrait right". Why? I think there are many reasons, but in the final analysis, there may be three: first, photographers don't understand the law; Second, photographers intentionally infringe on people's portrait rights for the purpose of "making profits"; Third, the photographer does not understand the legal significance of the right to portrait. As long as he sees his portrait in the newspaper, he will sue for compensation.
1, "for profit" must meet two conditions at the same time: first, use the portrait of others without my consent; Second, the profit-making behavior infringes on the portrait rights of others, that is, users subjectively hope to obtain economic benefits by using portraits of others. However, the so-called "profit" is not what we usually understand. As long as there is subjective intention and objective profit-making behavior, whether the actor realizes the profit-making purpose or not, it constitutes a "profit-making" fact.
2. Anyone who infringes on another person's portrait rights (reputation rights and honor rights) in any form shall also bear legal responsibilities: that is, the infringed person has the right to ask the infringer to stop the infringement, restore his reputation, eliminate the influence, apologize and compensate for the losses. Visible, without the permission of the portrait owner, not for the purpose of profit, if it causes actual damage to the portrait owner, such as mental damage to the portrait owner, the user also constitutes tort (portrait right) responsibility. In judicial practice, there are also many cases of defacing, uglifying and distorting citizen portraits for the purpose of not making profits.
From the above, it can be clearly seen that "for profit" is not the only premise and requirement to determine whether there is an infringement of citizens' portrait rights, but only an important plot to determine the size of tort liability.
3. Although the portrait owner agrees to use his portrait works, the users are beyond the scope, area and time limit permitted by the portrait owner. This situation does not need to cause actual damage to the portrait holder, which constitutes tort liability. Of course, this situation generally belongs to the liability for breach of contract.
Identification standard of infringement of portrait right
Article 100 of China's General Principles of Civil Law stipulates that "citizens have the right to portrait and may not use their portraits for profit without their consent." It can be seen that the behavior that constitutes a violation of citizens' portrait rights usually has two elements: first, without their consent; The second is for the benefit. The common infringement of citizens' portrait rights is mainly the use of other people's portraits in commercial advertisements, commodity decoration, book covers, printed calendars, etc. without their consent. The victim can stop the infringement of portrait rights by himself, for example, demanding to hand over the film he shot and removing the portrait from public display. You can also request the actor to stop the infringement, remove the obstruction, eliminate the influence or compensate for the losses according to law. The right to claim damages does not require property damage.
Other laws and judicial interpretations have also made some corresponding provisions on the infringement of portrait rights. Article 139 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of General Principles of Civil Law stipulates that my portrait shall be used for advertisements, trademarks, window decorations, etc. for the purpose of making profits. Without the consent of citizens, it should be regarded as an act of infringing on citizens' portrait rights. In addition, maliciously damage, deface, and vilify citizen portraits, or use citizen portraits for personal attacks. , also belongs to the infringement of portrait rights.
Compensation standard for infringement of portrait right
The loss of infringement of portrait right is generally spiritual compensation. Article 10 of the Interpretation of the Supreme Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Torts "The amount of compensation for mental damage is determined according to the following factors:
(a) the degree of fault of the infringer, except as otherwise provided by law;
(2) The means, occasions and behaviors of infringement;
(3) Consequences caused by the infringement; (4) profits of the infringer;
(five) the economic ability of the infringer to bear the responsibility; (six) the average living standard of the court.
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Compensation for picture infringement: 1000 Legal subjectivity:
Compensation for infringement of picture copyright: the right holder of infringement compensation shall compensate according to the actual loss of the right holder or the illegal income of the infringer. If the aforementioned compensation amount is difficult to confirm or calculate, the specific compensation amount can be determined by referring to the royalty ratio.
Legal objectivity:
Article 49 of the Copyright Law of People's Republic of China (PRC) infringes copyright or copyright-related rights, and the infringer shall compensate the obligee according to the actual loss; If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If the actual loss of the obligee or the illegal income of the infringer cannot be determined, the people's court shall award compensation of less than 500,000 yuan according to the circumstances of the infringement. Article 50 of the Copyright Law of People's Republic of China (PRC) * * * If the copyright owner or copyright-related obligee has evidence to prove that others are committing or will commit acts that infringe their rights, and their legitimate rights and interests will be irretrievably damaged if they are not stopped in time, they may apply to the people's court for measures to order them to stop relevant acts and property preservation before bringing a lawsuit.
How to define picture infringement? Thanks to some special signs or patterns in the pattern, it is infringement to simply adjust the color and tone.
According to Article 46 of the Copyright Law of People's Republic of China (PRC), no one may use it without the permission of the obligee. Do not distort, tamper with or copy. You shouldn't sign pictures for personal fame and fortune. Otherwise, it shall bear civil liabilities such as stopping the infringement, eliminating the influence, apologizing and compensating for the losses according to the situation.
Extended data:
The harm of infringement
In China's copyright law, the laws related to image copyright are very sound, and it is very easy to obtain piracy evidence. In the infringement lawsuits in recent years, almost all owners of genuine pictures have won the lawsuit. At present, some enterprises do not attach importance to the copyright of pictures and use pirated pictures in advertising, which has the following effects:
1, tort compensation
Generally, it is more than 10 times of the sales price. Other compensation standards include compensation according to the benefits created by pirated pictures. In this case, the amount of compensation may be as high as several hundred thousand yuan.
2. Loss of pre-publicity expenses
Enterprises spend millions of dollars on advertisements. If all advertisements have to be removed because of lawsuits caused by pirated pictures, the impact will not only be the compensation for pictures.
3. Corporate reputation
Piracy litigation will have a great impact on the integrity brand of an enterprise.
References:
-Copyright infringement