How to define the right to portrait is how to calculate the crime of having the right to portrait.

hello! Portrait right refers to people's right to reproduce, use and exclude others' infringement of their own portraits, which is a kind of personality right that people enjoy with the personal interests embodied in their own portraits as the content.

The contents of portrait rights include:

(1) Citizens have the right to own their own portraits, and have the exclusive right to make and use portraits.

(2) Citizens have the right to prohibit others from illegally using their portrait rights or to damage or defile their portrait rights.

1. exclusive right to make portraits

as far as photography is concerned, it is the whole process of fixing the appearance image of a natural person on a film, photographic paper or other material carrier through photography, and transforming the image of a natural person into a portrait.

The exclusive rights of portrait making include: First, the portrait owner can decide to make his own portrait or have his own portrait made by others according to his own needs or the needs of others and society, and no one can interfere; Second, the portrait owner has the right to prohibit others from making their own portraits without their consent or authorization. Illegally making portraits of others constitutes an infringement.

when we understand "the right to make portraits", we often think that as long as the portrait of the portrait owner is not made public, it will not constitute an infringement, which is a misunderstanding of the law. In a strict sense, it should be understood that whether the exclusive right of portrait making is infringed depends on whether the producer has obtained the permission of the portrait owner when making it. If the production is made without permission-even if it is for the purpose of possession, it will not infringe the direct interests of the portrait owner, then it will also constitute infringement of the exclusive right of portrait making. As far as photographers are concerned, as long as you point your camera at a natural person for portrait photography, it is an infringement if the portrait owner disagrees and forcibly takes pictures.

2. Exclusive right to use portrait

Once the portrait is fixed on a certain material carrier (made), it is independent of the world and can be dominated and used by people. Although the use value of portraits is of universal significance, only the portrait owner can enjoy the exclusive right to use them. The basic contents are as follows:

First, natural persons have the right to use their portraits in any way, and obtain spiritual satisfaction and property benefits through their use, and others shall not interfere (but shall not violate laws, public order and good customs). Second, natural persons have the right to allow others to use their portraits and decide to get paid for them (this requires equal consultation with the users and signing a portrait use contract). Third, natural persons have the right to prohibit others from illegally using their portraits.

3. The right to safeguard portrait interests

Portrait interests are the exclusive personality interests of citizens, and no one can interfere or infringe upon them. The contents are as follows: first, citizens have the right to prohibit others from making their own portraits without their permission; Second, citizens have the right to prohibit others from using their portraits without permission; Third, citizens have the right to forbid others to damage, defile, vilify and distort their portraits. The general principles are: citizens' right to reproduce their own image-the right to agree or disagree with the right to reproduce their own image in objective material media and space; Citizens have the right to use their own portraits, the right to allow others to use their portraits, and the right to prohibit others from using their portraits.

main features

1. The subject of portrait right can only be a natural person. Only natural people have portraits and their rights. Legal persons or other social organizations do not have the right to portrait because there is no objective "portrait" that can independently reflect their appearance. (The "corporate image" of a legal person does not refer to the portrait of a person, but to the comprehensive situation and social evaluation of the operation, scale, management, benefit, credit standing and product quality of the legal person. )

2. Portrait right also has a kind of property interest, which is derived and produced by the personality interest of the portrait right holder. It allows the portrait right holder to transfer the portrait right to a certain extent, and allows others to make and use their own portraits, and get the due use value from it.

3. Portrait right is also a kind of marked personality right, which is grassroots. The basic function is to identify personality with appearance image, so as to identify every specific natural person. (And the right to name is to identify personality through written symbols).

mode of expression

Portrait right is one of citizens' personality rights, which is mainly manifested in two aspects: first, citizens have the right to own their own portraits, have the right to prohibit others from maliciously tarnishing their own portraits, or use their own portraits for profit without their permission; Second, they have the right to consent to others' photographing and sketching my portrait and request judicial protection for free or paid.

However, the legal protection of the right of portrait is not the same in different countries. Most countries include it in the scope of copyright (such as the Federal Republic of Germany and Italy), while a few countries include it in the chapter of personal rights (such as China). There are still quite a few countries whose laws are not expressly stipulated, but they are protected according to the situation in judicial practice (such as Japan and the United States).

From the level of protection, the regulations in different countries are different. Some countries prohibit unauthorized and illegal photographing of other people's portraits. For example, in Japan, in 1967, a national railway employee was taking a shower at work in the east area of the national railway field, and was found by railway police staff. The public security officer wanted to photograph the employee naked, and the two sides had a dispute and filed a lawsuit with the court. The Tokyo District Court held that the public security officer had violated the citizens' right to privacy. In this case, the court held: "Although it cannot be said that the right of portrait has been established in the entity in our country, as one of the national rights protected by the Constitution, citizens have the right not to be photographed or published at will without consent ...";

In other countries, it is stipulated that others are not allowed to use it without permission. For example, Italian law stipulates that "portraits are not allowed to be exhibited, copied or sold without the consent of the portrait owner", except for the needs of justice, public security, science and education, etc., which involve public interests; There are also some countries that protect the right of portrait as a right of similar property gains. Because of the different protection modes of portrait right, the theoretical research in this field is more active. [1]

identification criteria

Article 1 of the General Principles of the Civil Law of China stipulates that "citizens have the right to portrait, and they shall not use their portraits for profit without their consent." It can be seen that an act that constitutes a violation of citizens' portrait rights usually should have two elements: first, without their consent; The second is for profit. Common violations of citizens' portrait rights are mainly the use of other people's portraits for commercial advertisements, commodity decoration, book covers and printed calendars without their consent. For the infringement of portrait rights, the victim can stop it by himself, for example, requesting to hand over the film he shot, removing the portrait from public display, etc., and can also request the offender to stop the infringement, remove the obstruction, eliminate the influence or compensate for the loss according to law. The right to claim compensation for losses 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 the Civil Law stipulates that: for the purpose of making profits, using the portrait of a citizen for advertising, trademark, window decoration, etc. without the consent of the citizen shall be regarded as an act of infringing the citizen's portrait rights. [2] In addition, malicious damage, defilement, uglification of citizens' portraits, or personal attacks using citizens' portraits, etc., are also acts that infringe on the right to portraits.

main rights

Portrait owners have exclusive rights to their own portraits. Portrait owners can dispose of their own portrait rights freely and 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 ownership means that citizens have the right to own their own portraits. Without the permission of a citizen, no one else may own the portrait of the citizen or damage the portrait of the citizen.

the right to make portraits 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, they must obtain the right to make portraits from the portrait person.

Portrait in the legal sense contains the personal interests enjoyed by portrait owners based on their portraits. Generally, it has the following legal characteristics:

1. Portrait is an artistic representation of the appearance of a natural person.

Usually, when we judge whether the external image of a character constitutes a portrait, we should look at it in combination with the form and the part of the performance.

first of all, the characters must have portrait characteristics. First, its manifestation is to reflect the image of a specific citizen through photography; Second, the portrait must also reflect the main characteristics of a specific citizen, such as posture, appearance and expression; Third, the portrait must be true and debatable, and well-known people can know whose portrait it is at a glance.

Secondly, it must be the fact of a specific portrait of a citizen. In the picture, the citizen portrait should occupy the prominent main position in the whole image and be represented as a specific object, not as a foil; At the same time, the purpose is not to achieve the goal through the use of portraits.

2. Portraits have the property of things.

Portrait is reproduced artistically, and it should be fixed on a specific material carrier (such as photographic paper, TV screen, newspapers and magazines, etc.) concretely and independently. It is an objective visual image that comes from and is independent of the portrait owner, and can be dominated, controlled and punished by people, and has certain property interests.

3. Portrait is the object of portrait right, which shows the unique personality interests of natural persons.

The so-called "property interests" are not derived from the physical features of natural persons themselves, but are derived from the personality interests generated by portraits, and reflect different needs of personality interests. Legal protection of natural person's portrait right is actually the need to protect personality interests.

The so-called "portrait right" is a kind of personality right that belongs exclusively to natural persons. The legal significance is: the natural person has an inviolable exclusive right to reproduce his image (portrait) on the objective material carrier through plastic arts or other forms.

Citizens' personal interests embodied in their portraits are the object of protection of portrait rights in our country's laws. It includes spiritual interests and property interests based on the personality interests embodied in portraits.

Main restrictions

(1) Politicians, movie stars, sports stars and other public figures are not allowed to object to others taking photos when they appear in public;

(2) Participants in processions, demonstrations and public speeches may 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 the reporter's good-will photo-taking. Such as the particularly lucky or unfortunate, the parties to major events or the people present, etc., all belong to this situation.

(4) A suspect may not object to judicial personnel taking photos for the purpose of judicial evidence.

(5) The exclusive right to portrait refers to the right to use portrait to mark and commend oneself, that is, the right to decide whether and how to use portrait. No one may use his portrait without his consent.

mode of commitment

The way of liability for infringement of portrait rights in China is mainly civil liability. This way of civil liability includes stopping the infringement, eliminating the influence, apologizing and compensating for the losses. Among them, stopping the infringement, eliminating the influence and apologizing are non-property liability methods, and compensating for losses is property liability methods. In China's judicial practice, the determination of tort liability is generally as follows: first, it is for the purpose of making profits, and the purpose of making profits is the standard of compensation. That is to say, whether the circumstances are serious or not, whether it is profitable or not, as long as the purpose of illegal use is to make profits and the portrait owner demands compensation, the infringer must bear the liability for compensation. Second, for non-profit-making infringement of portrait rights, that is to say, the determination of compensation for spiritual interests of infringement of portrait rights is based on the basic standard of "serious circumstances". If the circumstances are minor and do not cause serious consequences, material compensation is generally not judged. [3]

Special circumstances

Protection of the portrait rights of actors' stills

After the dispute over the use of the famous actor Benchang You's "Jigong" stills for profit, many movie stars and singers from all over the country complained or negotiated through lawyers. If a movie star's stills, which are well-known to all ages, are used in advertisements by a winery, its entrusted lawyer complains to the court for protection; A group of singer stills were used in fashion design books, and the singers signed a book.

Is the portrait right of an actor's stills protected by law? There are different opinions in the legal field. One view is that the drama should be owned by the copyright owner, and there is no portrait right of the actor. Others think that the portrait right of stills should be owned by actors and directors. Another view is that even if the drama creation is used for profit, it does not constitute an infringement on the actor's portrait right, because the actor only shows a specific artistic image in the stills, and he cannot claim his own portrait right; There is also a view that different situations should be distinguished for stills. Actors who play special roles (such as Mao Zedong, Zhou Enlai, Sun Yat-sen, etc.) cannot claim the portrait right of their stills, while actors who play non-special roles should be protected because they have no specific prototype characters, and their stills reflect the same characteristics as the actors themselves. This paper agrees with the latter opinion. First of all, for the stills of actors who play non-special roles, the artistic image is inseparable from the image of the actors themselves, and the masses also recognize that the two are integrated, which conforms to the unique appearance and basic characteristics of citizen portraits and should be protected by law. In the early 196 s, the chief judge of the famous Lugosi lawsuit in the United States once said: "An actor who plays a portrait of a fictional character can be protected by law." The case created a vivid artistic image because the famous movie star bela lugosi played the role of an earl in a film. After his death, this image was widely used by popular T-shirts and billboards at that time. Therefore, Lugosi's son and widow appealed to the court and won the lawsuit. Secondly, from the legislative principle of the protection of portrait rights in China, it is mainly to exclude others from using portraits of portraits for profit and to stop unjust enrichment. The balance of law should be more inclined to the actor's claim to the portrait right of stills and the factory and business circles' claim that stills enter the commodity market and make profits for them, so as to protect the rights of the former. The interests of the latter can be realized through consultation with the former. Of course, stills also involve the legal relationship of copyright and the contractual relationship between actors and directors. Generally speaking, if the copyright owner and other rights holders of stills use stills for the promotion and introduction of the play as advertisements, there is no infringement problem. [1]

The protection of portrait rights of human body art works

The "oil painting human body art exhibition" caused a sensation in Beijing, but the cases of models suing the exhibition organizers shook the whole country. The lawyer entrusted by the model believes that the organizer's behavior has obviously violated the right of portrait and reputation, so it requires the organizer and relevant personnel to apologize and pay economic compensation.

Should the portrait rights of models (especially body art models) be protected by law? It has caused great controversy in the legal and artistic circles. One view is that the portrait right of a body art model is not protected by law. The main reason is that as a specific figure of a body art work, it is no longer the subject of the original model, but is no longer a portrait of the model after the artist's creation. From the perspective of art, body art is essentially different from general photographic works or traditional portraits. The contract between the model and the painter itself has the effect of licensing (such as exhibition, making picture books, etc.); Another view is that the portrait right of body art models