How many years should portrait rights be protected?

The case caused a heated discussion on the Internet.

Yang Lixin, a civil law expert, said on his website that, first of all, in principle, the protection of the portrait of the deceased is shorter than the protection of the reputation of the deceased. According to German legislation, the protection time is 10 years after the death of the deceased, because the protection of portrait rights involves the issue of portrait copyright, and too long time is not conducive to protecting the copyright of portrait authors. Secondly, Lu Xun is a public figure. Under normal circumstances, the portrait rights of public figures are not protected, that is, there is reason to prevent them from breaking the law. Even if it should be protected, it has exceeded the copyright protection period for more than 50 years, so the above litigation request should not be supported.

Netizen Yeshan Xianshui suggested that this case can be summarized in two aspects: first, time; The second is public figures. Lu Xun died in 1936. More than half a century has passed, and his portrait should no longer be protected. Lu Xun is a public figure and needs no proof. It is a common practice for public figures to weaken their portrait rights. Lu Xun's portrait can be regarded as a public resource, and the use of this public resource, whether profitable or not, does not constitute infringement and compensation. Of course, if portraits are used in insulting textures, that is another matter.

Netizen Cao Chenghong said, I think according to the current laws in China, the right to portrait after death should not be protected at all. But if it is ugly, it belongs to the category of reputation right, not to the protection of portrait right. As for the right to portrait, if we want to legislate to protect the deceased in the future, the time limit should be very short, and only the emotional factors of the relatives of the deceased should be considered (maybe we don't want the portraits of relatives to be used for profit).

Netizen Shen Lang believes that the portrait right of the deceased can be roughly divided into: 1. Economic benefits. 2. Emotional interest. 3. Social welfare. The first two interests belong to general civil interests and should belong to close relatives. The latter interest belongs to the state, but it can only be exercised by the state when it involves major social welfare such as national feelings.

Personally, I think that when protecting the rights and interests of close relatives, we should combine the tradition of "filial piety" in Chinese culture and adopt the principle of giving priority to emotional interests and giving consideration to economic interests. In terms of protecting economic interests, we can refer to German legislation and stipulate that the protection time is 10 years after the death of the deceased. However, when protecting emotional interests, we can combine the provisions of the old law of our country on "nine families" and push them up to parents, grandparents, great-grandparents, and down to children, grandchildren, great-grandchildren and great-grandchildren If the protection period has passed, it is legal to use Lu Xun's portrait without infringing on the emotional interests of his close relatives. Although the current legislation does not stipulate the protection of economic interests of portrait rights, according to general precedents and national legislation, the protection of economic interests of portrait rights cannot exceed the prevailing copyright protection period at that time.

Yang Lixin's conclusion is that Lu Xun's portrait right should not be protected, which is a unanimous opinion. However, it is doubtful that while protecting the interests of the deceased, it can also protect public figures involving national interests. This kind of protection should be required by the procuratorate, not by the close relatives of the victim. Should Lu Xun's portrait be like this? Cao Chenghong's opinion is that the portrait of the deceased is not protected and it is probably worth considering. In Harbin, there was such a case. An amateur photographer photographed an old lady. After her death, she was sued for advertising anti-vertigo glasses for the driver. This kind of use should be regarded as infringement, otherwise, the rights and interests of the deceased will be infringed.