Who owns the films made in the studio?

In recent years, with the progress of science and technology, more and more people take pictures, but infringement is very easy to occur in the process of photography. Who owns the films made in that studio? Identification of infringement of portrait rights? What is the compensation standard for infringement of portrait rights? Next, I would like to introduce you to the knowledge about who owns the films shot by the studio, hoping to help you solve the corresponding problems.

1. Who owns the films made by the studio?

It is illegal for guests to take pictures in the studio without taking negatives. Whether it is a wedding photo or the original negative, the studio should deliver it to consumers unconditionally. It is against the principle of honesty, trustworthiness, fairness and justice that the studio does not take negative films, which belongs to the "overlord clause". Even if the consumer signs the agreement, it cannot change its essence. In this case, consumers can call the hotline 12020 to complain. For negatives, if the studio can't save or destroy the customer's portrait without the customer's consent, it should give it to the customer, and no additional negative fee should be charged. Copyright ownership of photo negatives. Portrait photography, like other photographic works, is "an artistic work that records the images of objective objects on photosensitive materials with the help of instruments" and should be a copyrighted work. The photo studio takes photos for customers, in fact, it is entrusted by customers to create photographic works. According to the laws of China, the copyright of commissioned works belongs to the trustee. According to custom, there is generally no agreement on copyright ownership between photo studios and customers in China, so the author of photos taken by photo studios naturally belongs to the trustee, that is, the consumer.

Second, the identification of infringement of portrait rights

(1) The use of portrait right is the first condition for taking responsibility for infringement of portrait right.

Strictly speaking, the right to portrait is exclusive to the owner of the portrait, and others may not make his portrait without permission. However, in the legislation and practice of various countries, just making portraits without using them is generally not enough to constitute the responsibility of infringing on portrait rights. Portraits used in violation of the right to portrait include all visual art works and their replicas that reproduce the image of citizens. This kind of use includes not only commercial use, but also all the use behaviors such as the publication, display and reproduction of portraits. Both commercial and non-commercial purposes can be published, displayed or copied.

(2) Use without the consent of the portrait owner.

Portrait right is the exclusive right of citizens, and others should follow the agreement with the portrait right holder when using portraits. It is illegal to use the portrait right without the consent of the portrait right holder, which undermines the exclusiveness of the portrait right. At the same time, it is subjectively wrong to use the portrait without the consent of the portrait owner. In general, the subjective form of the actor's infringement of portrait right is intentional, because the use of portrait is a conscious behavior of the actor, and he usually does not misuse other people's portraits because of his careless psychological state. But it does not rule out the possibility of negligence infringing on the right of portrait. For example, unauthorized use of portraits as fictional character paintings also constitutes infringement.

(3) unimpeded use for illegal reasons.

Although the portrait of others is used without my consent, it is legal to use it if there are illegal reasons. The so-called obstruction is illegal, which refers to the rational use of citizen portraits that must be made or used for national interests, social interests or citizens' own interests. It should be noted that it is sufficient to have the above three elements for the composition of liability for infringement of portrait rights, and it is not allowed to advocate that making profits is an essential element for the composition of liability for infringement of portrait rights.

Third, the compensation standard for infringement of portrait rights.

In our country, the main way of liability for infringement of portrait right is civil liability. This kind of civil liability includes stopping the infringement, eliminating the influence, apologizing and compensating for the losses. Among them, stopping the infringement, eliminating the influence and apologizing are non-property liability methods, and compensating for losses is property liability methods. In China's judicial practice, the determination of tort liability is generally as follows: First, taking profit as the purpose and taking profit as the compensation standard. That is to say, no matter whether the circumstances are serious or not, whether it is profitable or not, as long as the purpose of illegal use is profit and the owner of the portrait demands compensation, the infringer must bear the liability for compensation. Secondly, for the non-profit infringement of portrait rights, that is to say, the determination of compensation for spiritual interests of infringement of portrait rights is based on "serious circumstances". If the circumstances are minor and have not caused serious consequences, material compensation is generally not awarded.

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) Specific circumstances such as means, occasions and behaviors of infringement.

(3) Consequences caused by the infringement.

(4) the profits of the infringer.

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

(6) The average living standard of the court.

The photo studio shoots negatives based on the authorization of consumers, so the negatives also belong to consumers. If the studio mistreats him without his consent, it is an infringement of his portrait right, unless otherwise agreed by both parties.