An Analysis of Infringement Cases of Using Others' Portraits for Profit without Permission

Portrait right is everyone's right. For the infringement caused by the unauthorized use of other people's portraits for profit, we can understand the handling principles through some cases. Let's take a look at the content of the case analysis of using other people's portraits for profit without permission!

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.

Brand management company published in the newspaper? Fixed-knife patent is popular in Cosmetic Contact Lenses, so 50 girls with eye failure are urgently needed? In the article, children's photos are used to match the pictures. 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. Article 100 of the General Principles of Civil Law of People's Republic of China (PRC) stipulates that citizens have the right to portrait, and their portraits shall not be used for profit without their consent. ? Article 120 stipulates that 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 claim 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 cause the social evaluation of the right holder of portrait to decline. 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, about whether we should support the mental damage compensation fund. Relevant judicial interpretation provisions? 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, according to the circumstances, order the infringer to stop the infringement, restore his reputation, eliminate the influence and make an apology. ? 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:

The so-called infringement in recent years? Portrait right? There seems to be more and more trends in the report. Why? I think there are many reasons, but in the final analysis, there may be three: first, photographers don't understand the law; Second, did the photographer intentionally violate the portrait rights of others? Profit; 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? You must meet two conditions at the same time: first, you use someone else's portrait without your 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. But, the so-called? Profit? It is not the fact that we usually understand that there should be profits. As long as there is subjective intention and objective profit-making behavior, whether the actor realizes the profit-making purpose or not, it constitutes? Profit? Practical things.

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.

The above can clearly show: whether? For profit? It is not the only premise and element to determine whether there is an infringement of citizens' portrait rights, but 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 the General Principles of Civil Law of China stipulates? Citizens have the right to portrait, and their portraits shall not be used 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 damaging, defacing, and uglifying citizen portraits, or using 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 Spiritual 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; (6) The average living standard of the court.

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