Is the copyright of works that infringe the right of portrait protected?

I. Types of conflicts between copyright and portrait rights

In the works of art and photography related to portraits, the subject of copyright is inconsistent with the subject of portrait right, so conflicts often occur. In practice, this conflict is manifested in the following two types.

The first one is the conflict between copyright and portrait right in commissioned works.

When the client entrusts others to paint, photograph or statue for himself, if the client can only obtain his own photos, portraits or statues, but cannot obtain the copyright of the photos, portraits or statues, it will lead to the situation that the subject of portrait right is different from the subject of copyright. In this different situation, whether the client who is the subject of portrait rights uses his own photos, portraits or statues for profit or the trustee who is the subject of copyright uses photos, portraits or statues for profit, it may infringe the rights of the other party. Specifically, there are the following situations:

1. Without the consent of the principal (trustee), the trustee may allow others to use photos and portraits in commercial written materials such as advertisements, trademarks and product manuals;

2. The trustee (principal) may permit others to post, hang or display photos, portraits or statues in commercial windows or commercial service facilities (such as restaurants, restaurants, hotels and shopping malls). Without the consent of the principal (trustee);

3. Without the consent of the principal (trustee), the trustee may allow others to use photos and other works to make calendars or serve as the cover of publications;

4. Without the consent of the client (trustee), the client (trustee) participates in exhibitions, competitions and other activities;

5. The trustee (the client) uses photos and other works for other purposes without the consent of the client (the trustee).

The second type: the conflict between copyright and portrait right when creating portrait works based on others.

When creating portrait works based on others, if the subject of copyright is inconsistent with the subject of portrait right, conflicts will also occur. The specific situation is similar to the above.

Here, we should pay attention to the difference between portrait works created with others as the prototype and those created by others. There are the following main differences between these two types of works:

1. When creating portrait works based on others, the creator of the works should generally pay remuneration to others (models); Where a work is commissioned, the client shall pay remuneration to the creator of the work.

2. Portrait works based on others (models) are copyrighted by the creator rather than the model. Where a creation is commissioned, the client and the trustee may reach an agreement on the ownership of the copyright, and the copyright may be owned by both the client and the trustee. If there is no agreement or the agreement is unclear, the copyright belongs to the trustee.

3. Portrait works based on others (models); The ownership of the original belongs to the creator rather than the model; Where a creation is commissioned, the ownership of the original work generally belongs to the client, unless otherwise agreed by both parties.

Second, legislation to solve the conflict between copyright and portrait rights.

In order to avoid the conflict between copyright and portrait right, the copyright laws of many countries have stipulated corresponding legal principles.

In view of the above-mentioned first conflict, there are four representative ways to solve the conflict in the legislative cases of various countries.

1. Represented by the United States. American copyright law does not stipulate the original copyright ownership of commissioned works related to portraits, but regards commissioned works as a job work, and the principle of copyright ownership of job works is uniformly applied, and the copyright belongs to the employer (client).

2. Monaco is representative. Article 10 of China's Copyright Law stipulates that, unless otherwise agreed in the contract, when the carrier of portrait-related works is transferred, its copyright will also be transferred. In this way, although citizens entrust others to take photos, portraits or statues for themselves, the original copyright of these works belongs to the trustee in theory, but as long as the client obtains the work, he also obtains the copyright of the work. The copyright legislation of the United States and Monaco makes the subject of copyright and portrait right consistent, thus solving the conflict between them better.

3. Take Britain as the representative. The British Copyright Law of 1988 deletes the concept of "commissioned works", which stipulates in principle that the original copyright of all works belongs to the author except the hired works, but allows the parties to make changes through contracts. In this way, the parties can agree on the ownership of the copyright of portrait works through the contract. Although this method solves the conflict between copyright and portrait right to a certain extent, not everyone will realize this problem in practice. Therefore, if there is no copyright agreement in the contract or the agreement is not clear, the ownership of copyright is not clear, and the conflict between copyright and portrait right has not been resolved.

4. Take France as the representative. Article 1 of the French Copyright Law stipulates that the copyright of all works can only be enjoyed by the author. The right of portrait of the parties is protected by civil law. In this way, if the trustee exercises his copyright and infringes on the client's portrait right, the client has the right to request protection according to civil law. A third person who wants to use a portrait work must obtain the dual permission of the copyright owner and the portrait person. This practice is too passive and complicated, which is not conducive to the exchange and progress of science and technology culture.

In view of the second conflict mentioned above, most countries leave the problem to the parties themselves to solve. However, some countries restrict the author's copyright through copyright law to reduce the conflict between copyright and portrait right. This kind of legislation is mainly manifested in two aspects:

1. Protect portrait works through neighboring rights. For example, Articles 86 and 99 of the Italian Copyright Law protect the exclusive rights of photographic works, dramatic works, personal letters and portraits, engineering projects and other works through neighboring rights. Articles 85 and 86 of the Turkish Copyright Law also attribute the exclusive right of portrait works to neighboring rights. Generally speaking, the term of neighboring rights is shorter than that of copyright, and the scope of rights is smaller than that of copyright. Therefore, the protection of neighboring rights of portrait works is essentially a restriction on the copyright of portrait works, shortening the term of exclusive rights and narrowing the scope of rights.

2. Directly restrict the rights of the copyright owner of portrait works through copyright law. For example, article 5 1 of the Dominican Copyright Law stipulates that portraits, statues and people who have been painted, molded or photographed have the right to prohibit their portraits from being displayed or to display their portraits in other commercial ways. If the portrait works are displayed by the author or others without permission, it will be regarded as infringement and bear civil liability for compensation according to law.

Third, the provisions of China's copyright law.

China's copyright law takes a basically similar approach to the above-mentioned first conflict with British copyright law 1988. The difference is that China's copyright law uses the concept of "commissioned works". According to article 17 of China's Copyright Law, the ownership of commissioned works's copyright is agreed by the client and the trustee through the contract. If the contract is not clearly stipulated or concluded, the copyright belongs to the trustee. Accordingly, when the parties entrust others to take photos, portraits or statues for themselves, they can first stipulate the ownership of copyright through the contract. If there is no agreement or the agreement is unclear, the copyright belongs to the creator.

Although China's copyright law has made the above provisions, it can't completely avoid the conflict between copyright and portrait rights, because in real life, not many people really understand the principles of copyright law, so they rarely make express agreements through contracts, and a lot of them are not agreed or unclear. This defect has been overcome to some extent in the reply of the National Copyright Administration on whether there is copyright in the photos taken by the studio.

The second reply repeats the provisions of Article 17 of the Copyright Law. The third provision states that "since the photos may also involve the portrait rights of customers, the photo studio should abide by the provisions of Article 100 of the General Principles of Civil Law when exercising copyright, that is, to use photos for profit, the permission of the portrait owner must be obtained in advance." Obviously, this clause adopts the theory that personality right is higher than copyright, and stipulates that the trustee has the obligation to obtain the permission of the portrait artist in advance when using portrait works for profit. However, there is no provision on whether to pay remuneration to portrait owners. According to the principle of fairness in civil law, this provision should be interpreted as that the copyright owner should pay remuneration to the portrait owner.

Then, does the portrait owner have the right to use the portrait works owned by the copyright owner for profit? In this regard, the fourth item of the Reply stipulates that if the client (portrait owner) and the trustee (copyright owner, the same below) clearly stipulate in the entrustment contract that the client has the right to use the photos for profit by copying and advertising, the client has the right to use the portrait works for profit within the scope of its business activities. If the trustor and the trustee have not agreed that the trustor has the right to use the portrait works for profit, and there are sufficient reasons to believe that the trustee knows that the trustor will use the portrait works for profit without raising any objection, although the copyright belongs to the trustee, the trustor still has the right to use the photos for profit within the scope of its business activities. If the trustor and the trustee have not clearly indicated that the trustor has the right to use the portrait works for profit, or there is no reason to think that the trustee knows that the trustor will use the portrait works for profit, when the copyright belongs to the trustee, if the trustor wants to use the portrait works for profit, he shall obtain the permission of the trustee in advance. However, in any case, the client shall pay the corresponding remuneration to the trustee when using the portrait works.

As can be seen from the above, this reply adopts the "mutual permission system" in the case of different copyright owners and portrait owners, that is, no matter which party uses portrait works for profit, it must obtain the consent of the other party and pay corresponding remuneration. This kind of remedy after the event obviously failed to fundamentally solve the conflict between copyright and portrait right. The author thinks that it is better to adopt the practice of American copyright law, and it is more appropriate to uniformly stipulate that copyright belongs to the client. Although this practice is suspected of ignoring the creator, in the case of entrusting creation, the fundamental purpose of the trustee is to get paid. Therefore, this problem can be solved as long as the client is required to pay the trustee higher remuneration.

As for portrait works based on models, because the copyright belongs to the creator, there will be no dispute about the ownership of copyright. It may happen that the copyright owner will infringe on the portrait right or privacy right of the model when using his own works. For this kind of conflict, the law can be left to the parties themselves to solve. That is to say, it is stipulated that the copyright owner and the portrait owner agree through the contract. If there is no agreement or the agreement is not clear, according to the principle that personality right is higher than copyright, it should be stipulated that copyright should obtain the permission of portrait right holder in advance and pay corresponding remuneration when using portrait works for profit, otherwise it should be considered as infringement and bear civil liability.