What is infringement of portrait rights?

First, how to calculate the infringement of portrait rights?

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

1. The act of using the portrait of the portrait owner without the consent of the portrait owner without hindrance and illegal reasons.

The act of using a portrait without the consent of the portrait owner is also called "improper use of another person's portrait". The legal provisions on portrait right in China's civil code are basically aimed at "improper use" of portrait right. This improper use can be divided into "for profit" and "for non-profit" illegal use. We can't think that as long as it's not for profit, or with the consent of the portrait owner, we can use the portrait of a citizen at will without making a profit. This understanding is one-sided.

Article 10 18 of the Civil Code: Natural persons have the right to make, use, disclose or permit others to use their own portraits according to law.

Portrait is the external image of a specific natural person that can be recognized on a certain carrier through images, sculptures, paintings, etc.

Article 1019 No organization or individual may defame, damage or forge the portrait right of others by means of information technology. No portrait shall be made, used or made public without the consent of the owner of the portrait, except as otherwise provided by law.

Without the consent of the portrait owner, the portrait owner shall not use or disclose the portrait of the portrait owner by publishing, copying, distributing, renting or exhibiting.

In the non-profit use of other people's portraits without their consent, only the behavior with the reason to stop the infringement is legal. Such as news reports, "wanted orders" issued by public security organs to arrest criminal suspects, and so on.

Portrait right, like name right, is an exclusive right. The possession, use and disposal of personal portraits can only be owned by citizens themselves, and no one else can enjoy them without their consent. The act of infringing on the right of portrait is not to use the portrait of a citizen for profit, but to disrespect the exclusive right of a citizen to his portrait. Therefore, for whatever purpose, reproduction, dissemination, exhibition, etc. Citizens' right to portrait should be recognized by citizens, otherwise it will constitute an infringement of the right to portrait.

2. Making portraits of others without authorization (including having photos of others). The act of creating and possessing portraits (photos) of others without my consent. For a photographer, it is the act of taking pictures of others.

Portrait is the external expression of citizen's "personality", and only I have the right to decide whether to reproduce my image. Whether portrait works are made (filmed) for public publication or possession does not affect the composition of infringement of portrait rights. In other words, although it is not used publicly, it also constitutes infringement, such as the photo studio printing the customer's photos privately for preservation.

3. Malicious insults and uglification of other people's portraits.

That is, the actor maliciously insults, vilifies, defiles, damages or destroys the integrity of other people's portraits. Including altering, distorting, burning, tearing up or hanging upside down other people's photos, this kind of behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.

Second, how to avoid the right of portrait in photography

Portrait right is a basic right that everyone is protected by law. Of course, the portrait rights of people who shoot in the street are also protected by law. According to the relevant laws and regulations of our country, it is illegal to use the portrait right for commercial purposes without the authorization of the obligee. Combined with judicial practice, strictly speaking, even if the portrait in the photo is not used for commercial purposes, the portrait owner can claim the corresponding rights. Then there is actually a contradiction between photo copyright and passers-by portrait right.

The possibility of such infringement can be circumvented in the following ways:

1. The main form of street shooting is the portrait of passers-by, and the permission of the portrait right of passers-by should be obtained. In other words, the main content of this street shooting work is to shoot portraits of others. If it is communication, I personally think it needs to be authorized by others.

2. If the main content of the photo can't represent the portrait of others, try to avoid the shooting angle of the front image, shade the dark part, make the portrait flash through composition, reduce the proportion of portrait pictures, and try not to show the portrait of others clearly in the photo.

3. When shooting public events such as various activities and exhibitions, the right to take photos can be used appropriately, so don't care too much.

The shooting place should be in the public domain, not the private place.

5, pay attention to the privacy of others, sensitive information is best filtered out with later software.

Third, under what circumstances does not infringe on the right to portrait?

The right to portrait will also be restricted, and there are some reasons for violating the law. In judicial practice and legal theory, it mainly includes the following contents:

1, the public use of portraits, such as the use of portraits of criminal suspects by public security organs when issuing wanted orders, and the use of judicial personnel to take photos of criminal suspects as judicial evidence; Participants in processions, demonstrations and public speeches shall not object to others taking photos of the above activities because their activities are public;

2. Use portraits for citizens' own interests, such as the use of portraits by citizens who published "Looking for You" because of the loss of their loved ones;

3, the use of portraits for social news reports, people with special news value, shall not object to reporters taking pictures in good faith, such as using citizen portraits to promote social integrity or expose social ugliness, as well as particularly lucky or unfortunate people, parties to major events or people present. , all belong to this situation;

4. Use the portraits of politicians and social stars in good faith. When politicians, movie stars, sports stars and other public figures appear in public, they must not object to others taking pictures. To sum up, the infringement of portrait right is an infringement, which meets the constitutive requirements and belongs to the infringement of portrait right.

Legal objectivity:

The General Principles of the Civil Law of People's Republic of China (PRC) and Article 100 of the Civil Law of People's Republic of China (PRC) stipulate that citizens have the right to portrait and may not use their portraits for profit without their consent. Article 120 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that if a citizen's right to name, portrait, reputation and honor is infringed, he has the right to demand that the infringement be stopped, his reputation be restored, the influence be eliminated, an apology be made, and compensation be paid. The right of portrait in the legal sense includes the personal interests enjoyed by the owner of portrait based on his portrait. Generally, it has the following legal characteristics: 1. Portrait is an artistic expression of the appearance of a natural person. Usually, when we judge whether the external image of a character constitutes a portrait, we should look at it in combination with its shape and position. First of all, characters should have portrait characteristics. First, its manifestation is to reflect the image of a specific citizen through photography; Second, the portrait must also reflect the main characteristics of a specific citizen, such as posture, appearance, expression, etc. Third, the portrait must be true and controversial, and celebrities can know whose portrait it is at a glance. Secondly, it must be the fact of a concrete portrait of a citizen. In the picture, the citizen portrait should occupy a prominent position in the whole image and be represented as a specific object, not as a foil; At the same time, the purpose is not to achieve the goal through the use of portraits. 2. Portrait has the property of things. Portrait is an artistic representation, which should be fixed on a specific material carrier (such as photographic paper, TV screen, newspapers and magazines, etc.). ) specifically and independently. It is an objective visual image derived from and independent of the portrait owner, which can be dominated, controlled and disposed of by people and has certain property interests. 3. Portrait is the object of portrait right, which shows the unique personality interests of natural persons. The so-called "property interests" do not come from the physical characteristics of natural persons themselves, but from the personality interests generated by portraits, which reflect different needs of personality interests. The legal protection of natural person's portrait right is actually the need to protect personality interests. The so-called "portrait right" is a kind of personality right exclusive to natural persons. The legal significance is: the inviolable exclusive right of natural persons to copy their images (portraits) on objective material carriers through plastic arts or other forms. The personal interests of citizens reflected in their portraits are the protection objects of portrait rights in our laws. It includes spiritual interests and property interests based on the personality interests embodied in portraits.