Compensation standard for photo infringement

First, the standard of compensation for commercial infringement of photos

According to Article 54 of the Copyright Law:

1. Compensation according to actual loss: compensation according to the actual loss suffered by the photo owner or the illegal income of the infringer.

2. Compensation according to the legal compensation standard: if the actual loss of the photo owner or the illegal income of the infringer is difficult to calculate, compensation can be made with reference to the photo use fee; If it is difficult to calculate the actual loss of the obligee, the illegal income of the infringer and the royalty, the court will award compensation to 500 yuan ranging from 5 million yuan according to the circumstances of the infringement.

3. Compensation according to the standard of punitive damages: if the circumstances are serious, compensation of more than one time and less than five times the amount determined by the above method can be paid.

Second, 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.

Portrait production exclusive rights include:

(1) Portrait owners can decide to make their own portraits or let others make their own portraits according to their own needs or the needs of others and society, and no one else can interfere;

(2) Portrait owners have 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 content is:

(1) 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 the law, public order and good customs).

(2) A natural person has the right to allow others to use his portrait and decide to get paid for it (this requires equal consultation with the user and signing a portrait use contract).

(3) Natural persons have the right to prohibit others from illegally using their portraits.

3. The right to protect the interests of portraits

Portrait interests are the exclusive personal interests of citizens, and no one else may interfere or infringe upon them. The content is:

(1) Citizens have the right to prohibit others from making their own portraits without their permission;

(2) Citizens have the right to prohibit others from using their portraits without permission;

(3) Citizens have the right to forbid others to damage, defile, vilify or distort their portraits.

The general principles are: the right of citizens to copy their own image-the right to agree or disagree to copy their own image in objective material media and space; Citizens have the right to use their own portraits, to allow others to use their own portraits, and to prohibit others from using their own portraits.

Third, compensation for infringement of portrait rights.

The loss of infringement of portrait right is generally spiritual compensation. Article 10 of the Interpretation of the Supreme Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Torts "The amount of compensation for mental damage is determined according to the following factors:

(1) The degree of fault of the infringer, unless otherwise provided by law;

(2) The means, occasions and behaviors of infringement;

(3) Consequences caused by the infringement;

(4) profits of the infringer;

(5) The economic ability of the infringer to take responsibility;

(6) The average living standard of the court of appeal. At present, China has established a punitive compensation system in the field of intellectual property rights, and the infringement compensation in the field of intellectual property rights is mainly compensation relief, supplemented by punitive compensation, which increases the pressure of intellectual property infringement. Therefore, if the photos are commercialized without permission, according to the infringement, the obligee can get adequate relief from actual loss compensation, statutory compensation and punitive compensation.

Legal objectivity:

Article 49 of the Copyright Law of People's Republic of China (PRC) infringes copyright or copyright-related rights, and the infringer shall compensate the obligee according to the actual loss; If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If the actual loss of the obligee or the illegal income of the infringer cannot be determined, the people's court shall award compensation of less than 500,000 yuan according to the circumstances of the infringement. Article 50 of the Copyright Law of People's Republic of China (PRC) * * * If the copyright owner or copyright-related obligee has evidence to prove that others are committing or will commit acts that infringe their rights, and their legitimate rights and interests will be irretrievably damaged if they are not stopped in time, they may apply to the people's court for measures to order them to stop relevant acts and property preservation before bringing a lawsuit.