Cases of infringing on middle school students' portrait rights

199965438+February19, a "solo concert of civilian singer Hu Mingde" was held in Tangzha Workers' Cultural Palace, Nantong City, Jiangsu Province. Senior photographer Huang Zhibin was commissioned by the director of the Cultural Palace to shoot on the spot, but there was no clear agreement on the copyright of the photographic works. 3 1 Nantong Daily reported Hu Mingde's deeds and distributed a set of photos reflecting Hu's artistic career submitted by Huang Zhibin. The theme photo is a picture of Hu singing at the concert taken by Huang Zhibin. June 5438+1early October, 2000, Nantong Baile Duyu Management Co., Ltd. (hereinafter referred to as Baile Duyu) decided to hold Hu Mingde's solo concert on the second anniversary of its opening. In order to promote the need, Hu Mingde was asked to provide some information. Hu Sui selected a few photos from a group of photos sent to him by Nantong Daily as a souvenir, one of which was the aforementioned "theme photo". Hu Mingde didn't say who the photo author was, and Bai Leyu didn't ask. Since then, Bai Le Du Yu not only used this photo for advertising at the store door, but also commissioned the advertising department of a newspaper to make a newspaper advertisement, which was published on the front page of the evening paper on June 5438+1October 65438+March 3. The whole concert lasted six days. After the concert, Hu Mingde kept the original photos. After Huang Zhibin discovered the above behavior of Bai Le Du Yu, he appealed to Nantong Intermediate People's Court on the grounds that Bai Le Du Yu infringed on his photography copyright.

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The legal problem to be solved in this case: how to balance the conflict between the plaintiff's copyright and the portrait right of photo provider Hu Mingde? Will the plaintiff's copyright be restricted by Hu Mingde's portrait right?

The main reason for the defendant's defense is that the defendant's use of photographic works was approved by Mr. Hu Ming, the portrait right holder, and there was a problem of concurrence of copyright and portrait right. As the right of portrait is the basic right of citizens, it is innate, and copyright is generated according to behavior, not for life, so priority should be given to the right of portrait. When Hu Mingde exercised his right to portrait, he was not restricted by copyright, so the defendant's behavior could not constitute infringement.

It is true that the defendant's use of photographic works was approved by Hu Mingde, the portrait owner, but this does not constitute a fair use of copyright. Although there are many disputes about the judgment rules of fair use in the theoretical circle, there is basically a consensus on what specific situations fair use generally includes. To sum up, non-profit-making is not the only criterion for rational use, but as long as there is obvious profit-making purpose, it is definitely not rational use. If Hu Mingde hangs, collects or gives away Bai Le Du Yu's collection for the purpose of appreciation and remembrance, it can constitute reasonable use. However, the concert held by Bai Le Du Yu is obviously a performance with obvious profit-making color. Hu Mingde should also be aware of this nature when providing Huang Zhibin's photographic works. Therefore, neither Hu Mingde's behavior of providing photos to Bai Le Du Yu nor the actual use of Bai Le Du Yu since then conforms to the characteristics of fair use. Hu Mingde's portrait right and Huang Zhibin's copyright are not competing rights, because their rights are different in content and scope. Hu Mingde's portrait right is mainly embodied in: as the main body of photographic works, he has the right to prohibit the display of his portrait or display his portrait in other commercial ways. The photographic works involved in the case created by Huang Zhibin must be approved by the portrait owner Hu Mingde. The form of approval can be issued in advance or ratified afterwards. Hu Mingde knew that Huang Zhibin shot and published a photographic work containing his portrait, and did not object until the copyright dispute occurred, which shows Hu Mingde's permission and authorization. From this point of view, the inherent right of portrait with complete personal rights does precede the copyright with both property rights and personal rights. However, once the copyright of a photographic work is established according to law with the permission of a specific portrait right holder, the exercise of the portrait right contained in the photographic work by the portrait right holder will have to be restricted by the copyright. After the photographic works involved in this case were created with Hu Mingde's consent, Hu Mingde himself and his licensed users may not use them for profit without Huang Zhibin's permission or consent. Therefore, the theory that portrait right is not restricted by copyright in the state of competition with copyright cannot be established at all. Of course, if the copyright owner uses photographic works for profit, he must obtain the consent of the portrait owner in advance, even if he exercises copyright. Therefore, for the use of this dual-rights carrier, people's photographic works must get the permission of every right holder on it, otherwise there will be the danger of infringement.