The photographer took photos, but the photographer didn't pay the photographer. Does the photographer have the copyright of the photos? Seek specific laws

In China, the right of portrait, as an important personality right of citizens, is regulated and protected by the General Principles of Civil Law. The General Principles of the Civil Law stipulates that "citizens have the right to portrait, and they may not use their portraits for profit without their consent." China's "Copyright Law" clearly stipulates that art works and photographic works belong to the objects protected by copyright law, and the use of other people's works without permission is an infringement prohibited by law. In this way, the legal provisions of portrait right and copyright have formed a state of mutual permission, resulting in legal conflicts.

According to Article 17 of China's Copyright Law: "The ownership of commissioned works's copyright shall be agreed by the client and the trustee through the contract. If the contract is not clearly stipulated or no contract is 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. However, China's Copyright Law does not explicitly restrict the rights of commissioned works (portrait works) copyright owners, and because the client and the trustee may not care much about the ownership of the copyright of the works and the non-transferability of the personal rights of the works, there are not many explicit agreements through the contract, and conflicts between the two rights may still occur.

China's National Copyright Administration's "Reply on the Copyright of Studio Photographs" (hereinafter referred to as "Reply") to a certain extent regulates a large number of cases in which the ownership of copyright in commissioned works is not agreed or clearly agreed. The third provision in the reply: "As the photos may also involve the portrait rights of customers, the photo studio should abide by Article 100 of the General Principles of the Civil Law when exercising copyright:" Anyone who uses photos for profit must obtain the permission of the portrait rights holder 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 right holder in advance when using the portrait works with copyright for profit, but it is not clear whether the portrait right holder should be paid. 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. In addition, whether the portrait owner has the right to use the portrait works of which the copyright owner owns the copyright for profit? In this regard, Item 4 of the Reply stipulates that if the client (portrait owner) and the trustee (copyright owner) 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" when the subject of copyright owner and portrait owner are inconsistent, 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 relief after the event cannot fundamentally solve the conflict between copyright and portrait right. Therefore, when China's copyright law is revised again, the rights of commissioned works (portrait works) copyright owners should be clearly restricted, and the rights and obligations of copyright owners and portrait rights holders should be defined by clear legal provisions, so as to fundamentally solve the rights conflict between them.

The answer comes from lawyer Wei in Zhihu.