Do the photos taken by others after the photographer's death belong to the person who was taken?

In portrait-related works of art and photography, the subject of copyright (photographer) is inconsistent with the subject of portrait right (model), so they often conflict.

Portrait works based on others (models) are copyrighted by the creator (photographer) rather than the model. In the case of commissioned creation, the client (client) and the trustee (photographer) can make an agreement on the ownership of copyright, and the copyright can be owned by both the client (client) and the trustee (photographer). If there is no agreement or the agreement is unclear, the copyright belongs to the trustee (photographer).

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.

When the client (client) entrusts others to take photos, videos and statues for himself, if the client (client) can only obtain his own photos, portraits or statues, but does not 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 (customer) as the subject of portrait right uses his own photos, portraits or statues for profit, or the trustee (photographer) as the subject of copyright for profit, it may infringe the rights of the other party.

Specifically, infringement has the following situations:

Use photos and portraits in commercial written materials such as advertisements, trademarks and product manuals; You may allow others to post, hang or display photos, portraits or statues in commercial windows or commercial service facilities (such as restaurants, restaurants, hotels, shopping malls, etc.). ;

I may allow others to use photos and other works to make calendars or as the cover of publications; Photos and other works participating in exhibitions, competitions and other activities; Use photos and other works to gain other benefits.

(Fa Weibo is also a publicity photographer himself. I think we have to get the consent of the model. )

Customers who use their own photos for profit may also infringe the photographer's copyright. In this case, I haven't heard that the photographer sued the customer and the customer spent money. It's not good for you to sue customers! )

For example, the popular spoof photo (Xiao Pang) on the Internet is a typical violation of Xiao Pang's portrait right. If the author of the spoof photo is found, Xiao Pang can sue him for infringement of portrait rights and demand compensation. The author says I have copyright! That's useless! Xiao Pang doesn't agree to spoof with his own photos (Xiao Pang signed a written authorization)! Portrait right (personality right) is higher than copyright!