Fatal telephone photography

Portrait is a work that reflects the image of a natural person, including the five senses, by photography or plastic arts. Portrait right is a kind of personality right, the right of natural person to make portraits and the right to use standard forms. Legal portrait is an integral part of the personality of a natural person, and the spiritual characteristics embodied in the portrait can transform or derive the material interests of citizens to a certain extent. The legal protection of citizens' portrait right is based on the portrait right, which reflects citizens' spiritual interests and personality interests in many ways.

Portrait owners have exclusive rights to their own portraits. Portrait owners are not only free to dispose of their own portrait rights, but also have the right to prohibit others from using their exclusive portraits without their consent. Specifically, the content of portrait right includes portrait ownership, production right and use right.

Portrait right means that citizens have the right to own their own portraits. Without the permission of a citizen, no one else may own or damage the portrait of the citizen.

Portrait right refers to the right to decide and implement portraits, that is, the right to decide whether and how to make portraits. Portraits can make their own portraits, such as self-portraits and self-paintings. You can also entrust others to make it, such as a photo studio or studio. If someone takes the initiative to take pictures or make statues for the portrait person, he must obtain the right to make portraits from the portrait person. However, this right is subject to some restrictions, mainly including (1) politicians, film and television and sports stars and other public figures. When they appear in public, they should not object to others taking pictures; (2) Participants in processions, demonstrations and public speeches shall not object to others taking photos of the above activities because their activities are public; (3) People with special news value shall not object to reporters taking photos in good faith. Such as particularly lucky or unfortunate people, parties to major events or people present. , all belong to this situation. (4) A criminal suspect shall not object to judicial personnel taking photos for the purpose of judicial evidence.

The exclusive right to portrait refers to the right to use portraits to mark and commend oneself, that is, the right to decide whether to use portraits and how to use them. No one can use his portrait without his consent.

Second, the criteria for determining the infringement of portrait rights

Relevant provisions of existing laws

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 the General Principles of Civil Law stipulates that citizen portraits should be used in 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.

Article 25 of the Advertising Law of People's Republic of China (PRC) stipulates that advertisers or advertising operators who use other people's names and images in advertisements shall obtain the written consent of others in advance; Anyone who uses the name or image of a person without or with limited capacity for civil conduct shall obtain the written consent of his guardian in advance.

According to the above standards, under normal circumstances, as long as the portrait is used for profit without the consent of the portrait owner, it constitutes infringement.

(B) the main defects of existing laws and regulations

Judging from the current legal provisions, the protection of portrait right in China is not perfect.

Portrait rights include exclusive rights and citizens' exclusive rights to their own portraits. Exclusive right refers to the right of citizens to allow others to copy their portraits through art, and exclusive right refers to the right of citizens to decide whether and how to use their portraits. Article 100 of the General Principles of Civil Law stipulates that "public portraits shall not be used for profit", in fact, it only emphasizes the protection of the exclusive rights of citizens' portraits, but lacks the protection of the exclusive rights of citizens' portraits. At the same time, in the protection of the exclusive rights of citizens' portrait rights, the General Principles of Civil Law only emphasizes that one side of their portraits shall not be used for profit without the consent of the person. If we stick to the existing narrow interpretation, we will come to the absurd conclusion that the use of citizen portraits for non-profit purposes without my consent does not constitute an infringement of citizen portrait rights. Therefore, the existing provisions of the General Principles of Civil Law belong to the error of narrow extension of legal concepts and are suitable for expanding understanding. It should be said that according to the exclusiveness and exclusiveness of the right to portrait, it is an essential feature of infringing the right to portrait without my consent, and the purpose of making profits can only be a common manifestation of infringing the right to portrait.

On the other hand, the citizen's portrait right is a kind of personality right, which mainly embodies spiritual interests. The law protects citizens' portrait rights, the most important thing is to protect the spiritual interests embodied in citizens' portrait rights, and at the same time protect the property interests derived from the transformation of spiritual interests. Therefore, protecting citizens' personal dignity from infringement obviously violates the legislative purpose of the general principles of civil law. 1In March, 988, the symposium on the trial of cases of infringement of copyright, reputation, portrait and name rights in five provinces (cities, districts) in North China held in the Supreme People's Court held that unauthorized use of other people's portraits, whether for profit or not, can be regarded as infringement of other people's portrait rights, and it cannot be considered that infringement of portrait rights must be for profit. However, this explanation is limited to theoretical discussion and has not been confirmed in legislation.

(three) the reasons for the infringement of the right to portrait.

The right to portrait will also be restricted, and there are some reasons for violating the law. In judicial practice and legal theory, it mainly includes the following: (1) using portraits for social public interests, such as using portraits of criminal suspects when public security organs issue wanted notices, and judicial personnel taking photos of criminal suspects for the purpose of judicial evidence; Participants in processions, demonstrations and public speeches shall not object to others taking photos of the above activities because their activities are public; (2) Use portraits for citizens' own interests, such as the use of portraits by citizens who published "Looking for You" because of the loss of their loved ones; (3) Using portraits for social news reporting, people with special news value shall not object to reporters taking photos in good faith, such as using citizen portraits to promote social integrity or expose social ugliness, and especially lucky or unfortunate people, parties to major events or people present. , all belong to this situation; (4) the act of using the portraits of politicians and social stars in good faith. When politicians, movie stars and other public figures appear in public, they shall not object to others taking pictures.

Three, the specific analysis of different cases of infringement of portrait rights in judicial practice.

(A) the issue of portrait rights in collective portraits

1. Identification of individual portrait right in collective portrait.

Portraits can be divided into individual portraits and collective portraits. Portrait right of personal portrait The right of personality exists independently. Once the infringement occurs, the portrait owner can claim his rights from the infringer according to law. Collective portrait is a collection of independent portraits of obligees, which has the dual characteristics of independence and identity. In the abstract legal sense, the spiritual interests and transformed (or derived) material interests enjoyed by the right holders in collective portraits are independent and separable, and all portrait rights holders enjoy independent personality rights in photos; Physically speaking, group portraits are inseparable, so it is inevitable to use other people's portraits when using specific personal portraits in group portraits.

China's laws stipulate the characteristics, constitutive requirements and legal consequences of the act of infringing on individual portrait rights, but there is no explicit provision on whether one person (or several people in a group) uses collective portraits to infringe on the portrait rights of other collective portrait members.

Judging from the legal characteristics of portrait right, because portrait right is an integral part of personality right, its spiritual characteristics can transform (or derive) material interests. In a personal portrait, the personality of the portrait owner exists independently. Once the infringement occurs, the portrait owner can claim his rights according to law. In the right of collective portrait, although all portrait owners enjoy independent personality rights in photos, all portrait owners enjoy inseparable spiritual and material interests for collective portrait. At this time, the interests of all portrait owners cannot be harmed because of one person's interests. Therefore, when defining the portrait right of a collective portrait, it is necessary to fully and effectively protect the portrait right of each member of the collective portrait, and to ensure that each member of the collective portrait has the right to use the collective portrait reasonably. If the use of any person's portrait in the group photo constitutes infringement on other group photo photographers, then any use of the group photo is bound to be difficult, which is almost harsh for any joint venture and is not in line with economic interests. Therefore, it is necessary to strike a balance between the photographer's portrait right and the portrait right, which not only ensures the photographer's reasonable use of portraits, but also does not harm the personality rights of other photographers.

1887, the high court of Paris, France, made a case in this regard. A famous actor asked the court to order the studio to remove the group photos including his portrait. The court held that all the interests of a person about his portrait were overwhelmed by all the interests, a person's personality was covered by the whole picture, and the right of personality lost its foundation of existence. It was unnecessary to withdraw the group photo including the actor, so it rejected his claim. This case formed a systematic theory, which was adopted by many subsequent legislations. The essence of this theory can be summarized as follows: in individual portraits, portrait owners can claim portrait rights according to law, while in collective portraits, portrait owners cannot claim portrait rights. Although this explanation solves the problem of the right of collective portrait, it has a major defect, that is, no one's portrait in the collective portrait can be protected. This defect is even more obvious when the actor maliciously uses the right of collective portrait. Therefore, the theory includes an exception. Even if the employer maliciously damages, defiles and vilifies a specific person in the collective portrait right, the proportion of personality right of that specific person is enough to cover all portrait rights holders, and it is obvious that his portrait right has been violated, which should be considered as infringement of portrait right.

There is still a difference in the degree of protection between individual portraits and collective portraits. Because of the identity of legal meaning and physical characteristics, personal portrait does not involve the interests of the third party, which makes its legal protection more convenient and sufficient. Because the legal significance of the right of collective portrait is divorced from its physical characteristics and involves the interests of the third person (other photographers), it is necessary to balance the interests of the third person and the obligee. Therefore, as far as the individual portrait right holder is concerned, the legal protection degree of the individual portrait right and the collective portrait right is different, and the legal protection degree of the collective portrait right is lower than that of the individual portrait right, that is to say, the individual portrait right in the collective portrait right should be restricted to a certain extent, which is enough to ensure all photographers to use the collective portrait right reasonably.

2. Subjective elements of individual portrait right infringement liability in collective portrait right infringement.

Infringement of individual portrait rights In collective portraits, the fault of the actor is a necessary condition for him to bear tort liability. In the act of infringing the right to portrait, the subjective psychological state of the actor is intentional, which is one of the constituent elements of the act of infringing the right to portrait. The so-called intention refers to the subjective psychological state that the actor wants to use when he knows that it is a portrait of others. Knowing is knowing the identity of others. To judge whether the use of collective portrait infringes on the portrait rights of specific individuals in collective portrait depends on both the objective behavior of the actor using collective portrait and the intentional direction of the actor. If the actor uses the collective portrait only for the purpose of using the portrait of a specific individual in the collective portrait, and does not have the intention of using the portraits of photographers other than a specific individual, it does not constitute infringement on photographers other than a specific individual. Judging the actor's intention direction can be done from the actor's written explanation of the photo or from his intention to use the photo.

3. Does "collective portrait right" exist?

Many people's group photos are called collective portrait rights, but is there a collective portrait right? The so-called collective portrait right, literally speaking, is the overall portrait right beyond the individual portrait right of the participants. The case of Yao Ming v Coca-Cola Company's dispute over the right of portrait has triggered more discussions about the right of collective portrait. Since April last year, Coca-Cola Company, as the signing sponsor of China Men's Basketball Team, has used the remarkable images of three national team members from Yao Ming on the beverage bottles. Yao Ming, as the image spokesperson of Pepsi, did not grant Coca-Cola the right to use his personal portrait. Therefore, Yao Ming believed that the behavior of Coca-Cola Company infringed on its portrait right, and sued the court, demanding that Coca-Cola Company stop using it, apologize, eliminate the influence, and pay mental damages and economic losses of RMB 1 yuan. Coca-Cola Company argues that it has the right to use all the portraits of China men's basketball team and more than three people according to the contract it signed with chinese basketball association and its commercial agency. Their "Fang Shangjian" is document No.505 issued by the State Sports General Administration, which stipulates that "intangible assets such as the portrait rights of national athletes belong to the state." In this dispute, Yao Ming emphasized the violation of individual portrait rights, while Coca-Cola Company believed that they owned three or more men's basketball teams in China, including Yao Ming's collective portrait rights. Then, can the so-called "collective portrait right" be established in law?

The author believes that portrait right is a kind of personality right, which is an integral part of the personality of natural persons and is exclusive to natural persons. The General Principles of the Civil Law stipulates that citizens have the right to portrait. Other laws do not stipulate that subjects other than natural persons can enjoy the right to portrait. It can be seen that the so-called collective portrait right is not stipulated in the current law. Theoretically, the concept of collective portrait right also violates the jurisprudence. Citizens' right to portrait belongs to individuals and is exclusive to them, and no one else may interfere or infringe upon it. Except for legal reasons, any use of other people's portraits must obtain the consent of the portrait owner. The portrait right in the collective portrait right is also composed of the individual portrait right of each participant, so there can be no so-called "collective portrait right" beyond the individual portrait right. As for the conflict resolution of individual portrait right in collective portrait, it has already been mentioned above, so I won't repeat it here.

(B) the conflict and balance between portrait right and copyright

Portrait photos should belong to photographic works protected by copyright law.

Photographic works refer to artistic works that record the image of objective objects on photosensitive materials or other media by means of instruments. The establishment of a photographic work has nothing to do with the object of photography (people, events, scenery) and the purpose of photography (for artistic creation, advertising, publicity and reporting, etc.). ) and means of photography. The key to judge whether a photo belongs to a photographic work is to see whether the shooting behavior of the photo itself belongs to an original intellectual activity.

Photographers can form a photographic work independently because of their unique perspective, shooting opportunity, lighting methods and skills when shooting personal portraits.

In this way, in the same portrait photography, there are two rights, the photographer's portrait right and the filmmaker's copyright. When two rights holders exercise their respective rights, sometimes the copyright owner's right to publish and use will conflict with the portrait right and privacy right of the portrait right holder. When two kinds of rights coexist and conflict, there should be rules in law to adjust this conflict, or to determine the priority of one of the rights, or to determine that the two rights can be exercised in parallel. Under the rule of determining the priority of one right, another right will be restricted.

In photographic works that record portraits, it is generally believed that the protection of personal rights such as portrait rights is superior to the protection of copyright, which has dual rights of personal rights and property rights. This is because the creation of portrait photography works has the problem of whether the subject agrees from the beginning, and the right of portrait restricts whether the copyright can be produced and whether it is legal. After the portrait photography is legally produced, how the copyright owner uses the portrait photography is still restricted by the portrait right of the photographer in many cases. The first thing that the copyright owner faces is the protection of the portrait right of the photographer, that is, the form of the copyright owner's right to use portrait works is not as free and broad as in the general sense, which is a special case in copyright. At the same time, because the work records the portrait of the person being photographed, the citizen's portrait right shows the absolute exclusiveness of using his own portrait or allowing others to use his own portrait. How to use his portrait photography is a problem within the scope of his portrait right, which has covered and submerged the copyright. Therefore, the use of his own portrait photography is due to his rights. Therefore, in the case of conflict of rights, the right of portrait should be given priority protection.

The priority of portrait right does not mean that the owner of portrait right can completely ignore the existence of copyright and use photographic works at will. Once the copyright of a photographic work is established according to law with the permission of the portrait owner, the exercise of the specific portrait right contained in the photographic work by the portrait owner will have to be restricted by the copyright. That is to say, the right holder of portrait can't freely spread and distribute the photographic works to the public for the purpose of making profits on the pretext of giving priority to the exercise of portrait rights, and the creative work of photographers contained in the photographic works should be protected. Among the copyright enjoyed by filmmakers, the right of publication in the personal rights of their works should be restricted by the right of portrait, privacy and reputation of the portrait owner. Without the consent of the portrait owner, the portrait made shall not be publicly displayed or published, projected or played in the form of plates. However, the right of signature and the property right of works should not be restricted by the right of portrait. When the portrait owner disseminates photographic works to the public for profit, he shall protect the copyright owner's right of signature and remuneration in accordance with the provisions of the Copyright Law.

(3) Portrait right in duty behavior

In the shot works, there are not only photos that highlight the subject's personality with the consent of the subject, but also photos that the subject was photographed for performing his duties. There are some disputes about how to enjoy and exercise the right of portrait in such photos.

Although there is no relevant legislative or judicial interpretation, the judicial practice has made a preliminary judgment in the dispute between Joe and Fugu County Coal Products Management Company and Fugu County Post and Telecommunications Bureau. Joe used to be the manager of Fugu County Industrial Company. The coke powder produced by the company's fine coke factory won the 1990 National Metallurgical Products Expo Gold Cup Award. 199 1 Joe, as the main person in charge of the industrial company, took the stage to receive the award. The county took photos of the leaders of the metallurgical department issuing the gold cup and certificate to the industrial company and Joe receiving the award.

199 1 In June, the defendant's operating company signed an agreement with Heng Chang Company to dedicate all technical data and honors of the coke powder plant to the operating company. The operating company still uses the original name of the fine coke plant, and both parties have the common right to use and protect the honor of the fine coke plant (including certificates and trophies). Since then, Heng Chang Company has been dissolved.

1In August, 1992, Fugu County published an album, in which the winning photos were published. 1In August, 1994, Fugu County Post and Telecommunications Bureau printed a telephone book containing the photo according to the government's requirements. After Joe sued, he thought that the two defendants had violated his portrait right and demanded an apology, elimination of the influence and compensation for the losses.

After trial, the court held that Joe, as the manager of the company, took the stage to accept the award on behalf of the company as the main person in charge of the company, which was a duty behavior. Taking certificates and trophies as specific objects, photos are the live reappearance of the specific scenes of awarding prizes and receiving prizes. It is legal for the operating company to advertise its own honor. The advertisement does not distort or damage Joe's image and reputation, and does not constitute an infringement of the right to portrait. The plaintiff's claim is rejected.

In this case, what is actually done is two-step logical reasoning. That is to say, firstly, it is judged whether the people are the central theme of the photo, and secondly, if the people are not the central theme of the photo, the protection of the portrait right is limited to not damaging the image and reputation. The author believes that although the judgment in this case is not wrong, there are contradictions and legal errors in reasoning. If it is confirmed that a person still enjoys the right to portrait even if it is not the central theme of shooting, whether the image is damaged or distorted cannot be used as the criterion to judge whether the right to portrait has been violated. As mentioned above, the right of portrait is only the right of the obligee to make, mark and commend. If the portrait is distorted and ugly, it is an infringement of the right of reputation and has nothing to do with the right of portrait. Just because the characters in the photos are distorted and ugly, they cannot be included in the category of portrait rights. Theoretically, the composition of the right of portrait should require the description of the image of the five senses of the characters, with the right of portrait as the theme of the picture. In the above case, the winning photo is not about Qiao Pingyi, but the solidification of a specific scene, so in this photo, Joe does not enjoy the right to portrait.

The first step of the above case is correct, that is, first, it is necessary to judge whether the character is the theme of the picture. However, how to understand the theme of the figure composition picture is complicated in reality. For example, in June 2003, the twins Zhang Weiwei and Zhang Lili, who were the leaders of the parade of female soldiers on the 50th anniversary of the founding of the People's Republic of China, took them to court because they thought that Xiamen Hero Mishima Sightseeing Park Co., Ltd. had infringed their portrait rights. Zhang Weiwei and Zhang Lili claimed that in September, 20011,Xiamen Hero Mishima Sightseeing Park Co., Ltd. used its portrait of the Tiananmen parade on the 50th anniversary of the founding of People's Republic of China (PRC) to advertise in the B4 edition of China National Defense News for commercial profit. Request to order Xiamen Hero Mishima Tourism Park Co., Ltd. to publicly apologize in the original newspaper that published the infringing advertisement; And compensate for the loss of 400,000 yuan. The case was settled through mediation, and the twin sisters received compensation of 6.5438+0.3 million yuan. The judgment did not explain the reasons. However, aside from procedural issues such as the subject of litigation, it is not difficult to imagine that the defendant's commercial use of photos during the military parade is fatal, because the current legislation clearly stipulates this. However, if we do further theoretical discussion, we will find new problems. If the twin sisters' unit uses the military parade photos for non-profit purposes, does it constitute a violation of portrait rights? This problem can be transformed into a problem, that is, in the picture formed by job behavior, the image of the person occupies a prominent position, whether the unit to which the portrait owner belongs enjoys certain priority rights when using the portrait, and whether this right can be judged by whether it is profitable.

The author believes that under the above circumstances, the following points should be made clear:

1. In the picture formed by duty behavior, people occupy a prominent position, so the main content of the picture can be clearly judged, and the person being photographed should be recognized as having the right to portrait.

Taking twin sisters as an example, the characters occupy a prominent position in the photos. The essential meaning of photos is not to reflect the aesthetic feeling of characters, but to reflect the charm of soldiers in a specific historical era through characters. However, it is undeniable that photos clearly and intuitively describe the facial features of people and are an objective reflection of portraits. It can be said that the composition of a portrait is a natural attribute of a photo. In the absence of legal prohibition, the portrait right of the photographed person should be recognized, and the portrait right of the person in the photo should not be denied because of the profound meaning of the photo.

2. Whether it is profitable or not can not be used as a standard to limit the right to use the unit pictures.

On the premise of admitting that the photographer has the right to portrait under the above circumstances, this paper further discusses whether the right to portrait should be restricted because it is formed on the basis of duty behavior. Profit-making is only a way of using portraits, and it should not constitute a standard for judging whether there is infringement. This point has been explained above in this article.

3. If the unit where the photographer works uses the portrait, it shall obtain the consent of the portrait owner, but it shall not refuse the normal use of the picture by the unit without justifiable reasons.

In modern society, the interests of personality are regarded as the highest interests. Personality right is different from other civil rights. It is not the subject's right to things outside the body and people, but the subject's right to personal interests such as life, body, health, freedom, portrait and reputation. The assignment of this right must be under the control of the obligee, and the right to portrait is no exception. Therefore, even if it is a portrait picture formed on the basis of duty behavior, the unit to which the portrait owner belongs should obtain the permission of the obligee when using the picture in any way.

However, after all, portrait pictures based on job behavior have their particularity, and it is unfair to completely deny the rights and interests of the unit. The author believes that the use of portrait pictures by units should obtain the consent of the portrait owner, but the portrait owner may not refuse without justifiable reasons. As for the standard of just cause, on the one hand, it depends on the judge's reasonable judgment, on the other hand, it also depends on the continuous summary and induction of judicial practice.