Definition of Infringement on the Portrait Right of Others

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 that citizens have the right to portrait and may not use their portraits for profit without their consent.

Article 120 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that if a citizen's right to name, portrait, reputation and honor is infringed, he has the right to demand that the infringement be stopped, his reputation be restored, the influence be eliminated, an apology be made, and compensation be paid.

First, what is "portrait right".

"Portrait" has different understandings from different angles. Portrait (or photography) in the artistic sense refers to an ornamental modeling work that makes the image of the portrait owner reappear under the material carrier through artistic means such as painting and photography.

The right of portrait in the legal sense includes the personal interests enjoyed by the owner of portrait based on his portrait. Generally has the following legal characteristics:

1. Portrait is an artistic expression 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 its shape and position.

First of all, characters should 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, expression, etc. Third, the portrait must be true and controversial, and celebrities can know whose portrait it is at a glance.

Secondly, it must be the fact of a concrete portrait of a citizen. In the picture, the citizen portrait should occupy a prominent 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. Portrait has the property of things.

Portrait is an artistic representation, which should be fixed on a specific material carrier (such as photographic paper, TV screen, newspapers and magazines, etc.). ) specifically and independently. It is an objective visual image derived from and independent of the portrait owner, which can be dominated, controlled and disposed of 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" do not come from the physical characteristics of natural persons themselves, but from the personality interests generated by portraits, which reflect different needs of personality interests. The 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 exclusive to natural persons. The legal significance is: the inviolable exclusive right of natural persons to copy their images (portraits) on objective material carriers through plastic arts or other forms.

The personal interests of citizens reflected in their portraits are the protection objects of portrait rights in our laws. It includes spiritual interests and property interests based on the personality interests embodied in portraits.

Characterized in that:

1. The subject of portrait right can only be a natural person. Only natural people have the right to portrait and the right to portrait. 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 a person's portrait, but refers to the comprehensive situation and social evaluation of the legal person's operation, scale, management, benefit, reputation and product quality. )

2. Portrait right also has a kind of property interest, which is derived from the personality interest of the portrait right holder. It allows the portrait owner 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 them.

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

The content of portrait right:

1, exclusive right of portrait production

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

The exclusive right to make portraits includes: first, the portrait owner can decide to make his own portrait or let others make his own portrait 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 infringement.

When we understand the "portrait right", we often think that as long as the portrait of the portrait owner is not open, it does not constitute infringement, which is a misunderstanding of the law. Strictly speaking, it should be understood that whether the exclusive right to make portraits is infringing depends on whether the producer has obtained the permission of the portrait owner when making them. If it is produced without permission-even for the purpose of possession, it will not infringe on the direct interests of the portrait holder, so it also constitutes an infringement of the exclusive right to portrait production. As far as the photographer is concerned, as long as you aim the camera at a natural person to take a portrait, if the portrait owner disagrees, it is infringement.

2. The exclusive right to use the portrait right

Once a portrait is fixed on a material carrier, it is independent of the world and can be dominated and used by people. Although the use value of portrait is of universal significance, only the owner of portrait can enjoy its exclusive right. Its basic internal%