On the right side of the portrait

Discrimination between portrait right and portrait right

Article 100 of the General Principles of Civil Law stipulates that "citizens have the right to portrait, and their portraits shall not be used for profit without their consent." However, the right of portrait in the legal concept of our country has precisely defined the connotation and extension of the right of portrait, which appears in the form of law, but there is no authoritative explanation or regulation in the legal sense. What do experts think of portraits? For example, Yang, a professor at Renmin University of China, is similar (one of the drafters of China's Civil Code was personally violated by a doctoral supervisor). Portrait, Xiao, "Xiang" and "Xiang" are all compared with digital images. In layman's terms, it means "comparing images with similar numbers and characters" [1]; Refers to the material carrier that reproduces the visual image of citizens through painting, photography, sculpture, video, film, television and appearance in the form of art.

Depicting the concrete personality of citizens. What is a portrait? Portraits are citizens? His interests are embodied in his right to portrait. Compared with other personality rights, the object of portrait right has certain property interests, and the utilization of portrait personality interests, spiritual interests and productive interests, especially the attributes of interests, is very obvious. Generally speaking, handsome, beautiful, ugly, ugly, but not ugly, ordinary handsome, few people ask him to advertise, portraits involve aesthetic values.

Yes, Latin "property law"? It refers to the rights of both parties, and also refers to fairness and justice in the legal sense [2]. The right of legal relationship between entities, also known as legal rights, is the law of the state, which permits and protects doing or not doing a certain behavior and asking others to do or not do a certain behavior [3]. Political rights, economic rights, social rights and civil rights, according to the existence of property rights (divided into property rights and intellectual property rights) and individual rights, personal rights are their own, and civil rights without direct property content are inseparable [4]. The personal interests of the object or the personal rights of the identity relationship are divided into identity rights (according to the enjoyment of its specific identity, such as spouse rights, parental rights, custody rights, etc. ) and personality rights. Personality right refers to the right to oppose which is necessary to maintain the independent personality of civil subjects. Personality interest refers to the sum of the interests enjoyed by civil subjects on their personal freedom and personal dignity, life, health, name, reputation, privacy and portrait [5]. This portrait right is a personality right. Natural person's

Portrait right is a sign of personality, which embodies the appearance of natural person's property, including three basics: first, the exclusive agency right of production, which shows that it can be used as its own portrait at any time and in any form, and no one else can interfere, but it also shows that it is forbidden to illegally exercise its own portrait right; The second is the exclusive right to use, that is, the right to prohibit the illegal use of one's portrait subsidiary, including the right to transfer the portrait of the right to use; Third, the right to safeguard interests shall not be infringed upon except the obligation to anyone.

The concept of portrait reminds everyone to pay attention to the following points: 1, corporate portrait reflects the appearance of natural person's property, although in language, such as "corporate image of institutions", the glorious portrait is described as "image", which only refers to the face, and the "face" of the face image is inaccurate. Portrait, etc. , not only refers to a "face" or "face", but also refers to the carrier of natural person appearance image reproduction materials. Of course, it mainly refers to a person's facial image, but it will not be simply understood as "face" or "five senses". When the host of the photographic image is enough to establish why the human image reappears, this portrait should determine a person's portrait. Of course, if we can't judge whose portrait it is, we can't determine that his portrait has been infringed. The ticket printing of the first roving exhibition of human photography art held in Hainan used a photo of a female model. This photo, the model photo in this photo, and the lawsuit and controversy caused by the cut lip of the ticket character "Playboy", the focus of unauthorized use of "appearance" is that it does not constitute infringement of portrait rights. Who knows and is familiar with the per capita plaintiff? 3, the text description does not belong to a certain, the face of the pointed-billed monkey is covered all the year round, the unpleasant portrait reappears, and a pair of beetle eyes flash across the annoying eyes. What the brain needs to deal with does not belong to the scope of portrait right, and infringement of reputation right can be solved. 4. The building does not have ownership and portrait rights, but it belongs to one of the projects according to the new copyright law. 5. Copyright and portrait right are closely related. One thing has two rights, portrait right and copyright derivative right.

II's composition and portrait infringe on the right to portrait and the exercise of the right to portrait.

It is confirmed that according to the General Principles of Civil Law 100, the portrait of a dissident citizen has only two elements. The first condition is sometimes too broad in practice, and it seems that we should agree with her at any time, and we should add a non-"negative illegal reason". As for the illegal cause of rape, it refers to the act of implementing the spontaneous legal principle, but the special provisions of the law do not constitute the illegal cause, thus making the implemented act legal and denying the illegality. Mainly includes:

① Shooting, criticizing and publishing wanted criminals: advanced tasks, photo exhibitions and uncivilized behaviors needed by society;

2 egoism, such as: publishing Search for You;

③ News: News reports and portraits are submerged in the assembly queues and ceremonies. You don't have to ask for personal portrait rights, and you are allowed to advocate similar group photos and portraits.

4 record specific public activities, participate in portraits, and participate in the use of the same commitment portrait.

On the contrary, "for profit", but this view is sometimes too narrow, protecting the legitimate rights and interests of citizens. For example, some people illegally use other people's portraits (such as deliberately putting together wild boars with "fangs" at the bright mouth of wide-angle glasses), not for profit, which is infringement. Therefore, you can add "except those who insult the use of portraits". Add the actual elements of infringement of portrait rights: commercial purposes without her own consent, in addition to insults, rape and other illegal reasons.

Tort loss of portrait right

Civil liability for infringement of portrait rights, including stopping the infringement? Civil legal liability for damage, elimination of influence, apology and compensation for losses. The loss of infringement of portrait right is generally compensation for mental damage, and the judge will determine the compensation for mental damage according to the big standard. The Supreme Court explained the issue of "10", and the moral determination of the amount of damages is based on the following factors: (1) the degree of fault of the infringer, unless otherwise stipulated by law; (b) Targeted means, occasions, behaviors and specific circumstances; (3) Infringement consequences; (4) profits of the infringer; (e) The economic ability of the infringer to bear the responsibility; The average living standard of the court of appeal. Where laws and administrative regulations clearly stipulate disability compensation and death compensation, the provisions of laws and administrative regulations are mainly in direct proportion to the above factors of judges. At the same time, the principle of differential treatment and the principle of appropriate restrictions should be adopted. It is difficult to implement a standard in different regions, different parties, different spheres of influence and different situations. I think we can grasp the compensation standard from three aspects: (1) criminal discipline plays a role; (2) It has a soothing effect on the victims; (3) The amount of compensation for the social effect of education is correct if these three requirements are met. Each region sets corresponding quotas according to the local economic situation and per capita income level. However, in principle, the amount of compensation for mental damage should be systematic and have the judge's discretion.

Example 1: Watsons and search content: A female college student of 19 years old angrily sued after being found in a supermarket of Shanghai Watsons Commodity Co., Ltd., and the court of Hongkou District People's Court made a first-instance judgment. The defendant apologized to the plaintiff's newspaper within 10 days, and paid compensation of 250,000 yuan, mental damages and other expenses. On July 8, 200 1 year, the plaintiff had a financial advantage. When she left Watson's Sichuan North Road, the alarm bell suddenly sounded at the door, and the defendant forcibly entered the office to undress and search, regardless of the plaintiff's objection, but failed. The plaintiff protested strongly and demanded an apology and compensation from the defendant. They don't agree that the defendant and the plaintiff go to court, and ask the defendant to apologize and compensate 500,000 yuan for mental damages. The spirit of the first-instance judgment of 250 thousand yuan? Compensation for damages. The appeal of "Watson" claimed that consumers simply did not produce evidence of the fact that they were persecuted to take off their pants, so it is a pity that in the case of "Watson", the second trial did not provide sufficient and effective evidence, and the vague details of whether the court forced them to take off their pants actually supported the claim of "Watson" and the judgment was changed to 10000 yuan. This also explains the scope of the judge's discretion.

Example 2: People and dogs eat together: After the Opium War, the Qing government was corrupt and incompetent in the consulate area of Shanghai Concession. According to newspaper reports, in the cases where the local courts of Baoji City, Shaanxi Province and Baoji City, Taiwan Province Province ruled that dogs ate, the facts of the case were unfavorable to the plaintiff: at noon on June 65438+August 1. 0999, Wang He and his wife belonged to Baoji City. At dinner, a woman and a dog from Beijing buy food and feed it to the dog in the dining room. This is a very practical tableware in the dining room. Wang thought that his personal dignity had been violated, so he filed a claim for compensation of 25,000 yuan to the accused restaurant according to the Consumer Protection Law. Article 14 of the Consumer Law stipulates: "Consumers have the right to respect their personal dignity and national customs and habits when purchasing or using goods or receiving services." In the case that participants and dogs share a meal, it is a matter of spiritual compensation for human dignity. Unfortunately, the restaurant did not deliberately dismiss the plaintiff's lawsuit.

In the case of four portraits,

Case, Carina Lau and Shantou Alice cosmetics.

Carina Lau Shantou, a Hong Kong film star of Alice Industrial Company, refused to have his portrait printed in a cosmetic bag, and Carina Lau took the evidence to Shanghai to sue. Shanghai Alice Company stopped the infringement, compensated and apologized, and compensated for the loss of 6,543,800 yuan. Mediation closed, compensation of 654.38+ten thousand yuan to listen to most of the Hope Project.

Strictly speaking, as long as one of the following circumstances exists in photography activities, it can be considered as infringement of the portrait rights of others.

In the case of his portrait behavior, there is no reason to deny the illegality and disagree with the portrait.

The act of using the portrait without the consent of the portrait owner is also called "improper use of the portrait". Portrait law Civil law is basically a provision on "improper use" of portraits. Classification of improper use: for profit, for non-profit and for illegal use. We can't believe that the purpose of doing this is not for profit or to agree with portraits, non-profit portraits of any citizens. This understanding is one-sided. Article 100 of the General Principles of Civil Law stipulates: "Citizens have the right to portrait, and those who do not have the right to portrait do not agree to use citizens' portraits for profit. The opinion of the Supreme Court on the implementation of Article 139 (for Trial Implementation) is not limited to: "For commercial purposes, no citizen agrees to advertise his portrait, trademark, decorative window, etc. "In the range. 120 stipulates: "Citizens whose names, portraits and reputations are damaged have the right to demand to stop the infringement, restore their reputations, eliminate the influence, apologize and demand compensation for the losses. "

Without my consent, the use of portraits of others for non-profit purposes is only legal before rape. Such as news reports, public security organs arrested suspects and issued arrest warrants, and so on.

The right to portrait and the right to name have exclusive possession, and the right to use and dispose of one's own portrait can only belong to citizens, and others may not enjoy it without consent. Infringement of citizens' portrait rights? Citizens who do not use it for the purpose, but do not respect the right to portrait. Therefore, for whatever purpose, reproduction, dissemination, exhibition, etc. Taking a portrait of a citizen should obtain the consent of the citizen, otherwise, it will constitute an infringement of the right to portrait.

Making portraits of others (including taking photos with others) without authorization. The act of creating and possessing portraits (photos) of others without consent and authorization. Being honest with photography is someone else's behavior.

Only I have the right to decide whether to copy my image. Making (shooting), portrait, publishing or illegal possession for the purpose does not affect its behavior and constitutes an infringement of portrait rights. Although it is public, it also constitutes infringement, such as a photo studio printing photos saved by customers privately.

Malicious insult and slander of another person's portrait, this illegal act maliciously insults, slanders, defiles, destroys the portrait, and infringes or damages the integrity of the portrait of another person. Altering, distorting, burning, tearing up or hanging upside down other people's photos not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.

In photography practice, it often constitutes an infringement of portrait rights, which meets the following three conditions:

In recent years, the so-called infringement of "portrait right" is obviously an increasing trend. Why? I think there are many reasons, but it may come down to three: first, photographers don't understand the law, and photographers deliberately violate the right to portrait for the purpose of "profit"; Third, the law does not understand the meaning of the right to portrait. They saw their portraits and asked the procuratorate to meet the newspaper.

1, "for profit" must meet two conditions at the same time: first, without my consent, the portrait of others, based on the behavior for profit, infringes on the portrait rights of others, and the subjective user wants to use the portrait of others to obtain economic benefits, but the so-called "for profit" is not what we usually understand as profit. To be realistic, as long as it is subjective intention for profit.

2. Infringement of other people's portrait rights (reputation rights, reputation rights) in any form should also be undertaken: that is, the infringer has the right to ask the infringer to stop the infringement, restore his reputation, eliminate the influence, apologize and compensate for the losses. It can be seen that portraits are for the purpose of others, not for profit. If they cause actual harm to portraits, such as psychological harm to portraits, using them without permission also constitutes infringement (portrait right). In judicial practice, there are also many non-profit-making citizen portraits that have been altered, defaced and distorted.

To be more clear: whether it is for profit or not is not the unique premise and elements to determine whether there is an infringement of citizens' portrait rights, but the important circumstances of the infringement.

3. The portrait agrees to use its portrait, but it is beyond the permitted use area of the portrait user. Due to the restriction of use, if the portrait that does not exist in this case causes actual damage, it constitutes tort liability. Of course, this situation is generally the liability for breach of contract. China's right of portrait infringement.

The civil liability for infringement of portrait rights is mainly shared by the people, and the civil liability includes stopping the infringement. Harm, eliminate the influence, apologize, compensate for losses, stop the infringement, eliminate the influence, apologize for non-property liability, and compensate for losses. In judicial practice, the determination of tort liability is generally based on commercial use, and the compensation standard is "for profit" and whether the circumstances are serious. However, whether it is for profit or not, as long as it is illegally used for profit, the infringer must bear the compensation responsibility. Infringement of portrait rights for non-profit purposes, that is to say, infringement of spiritual interests "seriously" damages portrait rights. Materials with minor circumstances, serious consequences and generally uncertain compensation conditions.

According to China's legal and judicial practice (mainly the latter), according to some specific circumstances and social interests, no, it is reasonable for portrait owners to agree to use their images:

In general, the right to portrait is not allowed to use one's own portrait without consent, but in some cases, one can still use one's own portrait, which does not constitute an infringement of the right to portrait. Those who use other people's portraits will be the defenders of the theme. Under reasonable conditions, the subject matter of these defensive measures is used, and the portrait owner agrees that the portrait is illegal without denying it.

Although countries have not formulated specific legal provisions in this regard, in judicial practice, they generally grasp:

1, in order to safeguard national interests and social needs, portraits of national leaders, political activists, deeds and advanced figures are used to report with news value.

Public figures, with certain status and news value, are generally social celebrities, and their activities often involve all aspects of national politics, economy, social life, culture and entertainment. Therefore, we should use their photos reasonably when reporting their deeds. Portraits of public figures, in order to safeguard the interests of the country and society, have a certain identity and status, have news value, and even more ordinary social celebrities. Their activities are often related to all aspects of the country's political, economic and social life, culture, entertainment and story reporting. Their images, such as presidents, politicians, diplomats, scholars, inventors, writers, artists and actors, should be used reasonably. For example, on July 5, 2000, the People's Court of Fengtai District of Beijing held a hearing on the case of CCTV host Chen Gong 'an University teacher and Li v. Zhongyuan Wei Pharmaceutical Company for infringement of portrait rights. In the case of Li losing the case, the plaintiff's superior pictures appeared in the advertisement album of Zhongyuan Wei Film Festival, and the photos were treated as seawater desalination background, and Chen and Li Zhongyuan Wei violated their portrait rights. Therefore, after investigation, the court, the court, in the photos created by Chen Li, Far Deterrence Film Festival is a public welfare social activity that can spread to the public. Photo processing technology has not affected and distorted the expression of its main content. In addition, the advertisement of Yuanli album is to improve its popularity and create a good corporate image, which has no direct commercial purpose and does not violate national laws and regulations. Every citizen has the right to portrait, but the exercise of the right to portrait should be restricted to some extent. Finally, the court found that he Li's portrait right had not been violated.

2. Use portraits to participate in specific activities on specific occasions, such as participating in various assemblies, parades, ceremonies, celebrations and other activities. The portraits of such activities often have news value. The life of participants has given up anyone's portraits to a certain extent, and they are not allowed to claim their own portrait rights when participating in such activities. The use of these specific occasions to form portraits should not constitute an infringement of portrait rights, but a reasonable use of portraits.

Scenery shooting, using people as decorations, or taking photos for others to eat, because the protagonists in these occasions are not.

4 (The exercise of legal rights stipulated in the Constitution is supervised and managed by citizens), criticize some uncivilized behaviors, manners, bad behaviors or immoral behaviors, and condemn people's behaviors, so as to educate the public to abide by the law, respect social morality, maintain social order, and paint portraits of uncivilized behaviors of citizens, such as photographing social, behavioral and environmental pollution that destroys public property;

To depict my hobbies and those of other natural persons and other social welfare purposes, we need to use their images, such as looking for missing persons, looking for you in newspapers, taking photos of me on TV, etc.

In litigation activities, evidence (criminal or civil, in the litigation stage) and portraits of citizens; State organs enforce the use of portraits of citizens when performing official duties. If the public security organs arrest fugitives or other criminal suspects, they will use their portraits to make wanted orders.

7. State organs that apply the law (such as in the process of administrative law enforcement) use citizen portraits;

Scientific research, cultural and educational purposes and portraits of others, in a certain range (mainly refers to the scope of social openness), such as clinical teaching and scientific research purposes, while showing news photos of patients in specific occasions or occupations. Use portraits of citizens.

Therefore, I personally think that citizen portraits should also pay attention to the following aspects:

Correct understanding, article illustrations, map pictures, news photos and different photographic reports.

Standardize the title word. (such as a named work. )

Don't believe in "oral agreement"

4, cautious magazine cover pictures.

When submitting (newspapers, magazines, film competitions), we should pay attention to the following descriptions, plus the authorization restrictions of the works used.

Photography activities and participation in various employment modes.

Although the law has always focused on the content of the agreement between the organizer and the model.

7. The key is to get a portrait of a written agreement. Infringement of the right to portrait defines citizens. However, with the development of China's market economy, especially after China's entry into WTO, photography (scope) is more widely used and may be unavoidable "benefits", especially the impact of economic factors on the popularity rate. Generally speaking, the legal protection of public portraits, especially political portraits, entertainment rights and portrait rights, is still relatively principled, such as how to define what is a "for-profit" portrait of the dead. So when dealing with specific things, we sometimes encounter abstract nouns, which is very difficult. What we are talking about here is the most difficult "business purpose". In view of this, as a photographer, we should pay more attention when shooting portraits, especially when using them: caution, according to the law, evidence-there are twenty or thirty important, I mean everyone has a portrait. If you want to use other people's portrait rights, ask for their permission-the safest (so I deliberately use "several reports on the use of portrait rights, as well as samples of contracts and agreements of agency companies" for reference only).

Some common portraits:

1, the enterprise has the right to use employee portraits?

The answer is yes: no!

2% people only care about faces?

Don't! Every time people see a portrait, the legal subject of Lenovo always wants to record personality characteristics. This personality characteristic is an important resource of human society, and its potential huge commercial value, especially the value of modern commercial society (such as the recent TCL mobile phone advertisement, the personality characteristics of Korean actors. )

The visual image of other parts of the body with obvious characteristics will make people feel that the legal subject and the legal subject are recorded. Having obvious features of other body parts is also a visual portrait, and it is also within the protection scope of the right of frontal facial portrait.

"Portrait" is a natural person, and the investigation of the social cognitive level of ordinary people should also be fully integrated. It can be seen that to determine whether it is a performance or other parts, ordinary celebrities have been able to determine their performances, and then one side or other parts also constitute a "portrait."

3 photo portrait?

As we all know, the portrait right of personal portrait is an independent tort, and the portrait owner can claim his rights from the infringer. Group portraits have their own characteristics. Collective portrait is a general feature owned independently by portrait owners. The identity of the first portrait photo enjoys independent personality rights. On the other hand,

Judging from the current judicial practice, it is obvious that the collective portrait, malicious destruction, pollution or slander of a specific person by the general user accounts for a certain proportion of the inseparable quality of the body (everyone has the right to claim the rights of an independent obligee), and this person's personality right is enough to cover the extent to which all portraits are infringed.

Secondly, it is judged whether the behavior of collective portrait infringes on the specific individual portrait right of collective portrait, and whether the user uses it for commercial purposes or not. Should be a basic foundation.

It can be seen that the right of collective portrait is protected by the following degree of law, which means that the right of individual portrait in the right of collective portrait is restricted to some extent, which ensures the reasonable use of photos by all participants. (just because the law is not perfect)

4. Taking photos and arguing with others constitutes a violation of portrait rights?

Relying on illegal rape themes. For example, when a clerk quarrels with a customer, his attitude is very bad. From a social point of view, it is not good for a clerk and a customer to be unreasonable, and vice versa. Salesman morality is also a bad phenomenon in society. Bad phenomena such as publicity are conducive to social progress. Such an event is undoubtedly a social news, and any citizen has the right to report it. News pictures are one of the means of news reporting when shooting. It is in the public interest to take photos of such scenes and use portraits of others, and it does not constitute an infringement of the clerk's portrait rights.

However, if two brothers are arguing, generally speaking, it is not the case.