How to infringe others' portrait rights?

First, how to infringe on the portrait rights of others?

According to the relevant laws and regulations of our country, the infringement of portrait rights needs to meet the following conditions:

(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 the liability for infringement of portrait rights, and it is not allowed to advocate that profit-making is an essential element for the composition of the liability for infringement of portrait rights.

Second, 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 5 of the Interpretation of the Supreme Court on Several Issues Concerning Determining the Liability for Compensation for Spiritual 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) The purpose, occasion and behavior of the infringement.

(3) Consequences caused by the infringement.

(4) the profits of the infringer.

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

(six) the average living standard of the court.

3. What behaviors are violations 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 are basically aimed at the "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.

Citizens have the right to portrait, and their portraits shall not be used for profit without their consent. Article 139 of "Opinions of the Supreme People's Court on Several Issues of Implementation (Trial)" defines this kind of infringement as "making advertisements, trademarks, decorating windows, etc. with citizen portraits for profit." . If a citizen's right to name, portrait or reputation is damaged, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology, and may demand compensation for the losses.

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.

To sum up, in photography practice, there are three situations that often constitute infringement of portrait rights:

(1) "For profit" must meet two conditions:

One is to use other people's portraits without my consent;

Second, the profit-making behavior infringes on the portrait rights of others, that is, users subjectively hope to obtain economic benefits by using portraits of others. However, the so-called "profit" is not what we usually understand. As long as there is subjective intention and objective profit-making behavior, whether the actor realizes the profit-making purpose or not, it constitutes a "profit-making" fact.

(2) Anyone who infringes on others' portrait rights (reputation rights and honor rights) in any form shall also bear legal responsibilities: that is, the infringed has the right to demand the infringer to stop the infringement, restore his reputation, eliminate the influence, apologize and compensate for the losses. Visible, without the permission of the portrait owner, not for the purpose of profit, if it causes actual damage to the portrait owner, such as mental damage to the portrait owner, the user also constitutes tort (portrait right) responsibility. In judicial practice, there are also many cases of defacing, uglifying and distorting citizen portraits for the purpose of not making profits.

From the above, it can be clearly seen that "for profit" is not the only premise and requirement to determine whether there is an infringement of citizens' portrait rights, but only an important plot to determine the size of tort liability.

(3) although the portrait owner agrees to use his portrait works, it is used beyond the scope, area and time limit permitted by the portrait owner. This situation does not need to cause actual damage to the portrait holder, which constitutes tort liability. Of course, this situation generally belongs to the liability for breach of contract.

To sum up, infringement of others' portrait rights needs to meet the above requirements, usually manifested in the use of others' portraits for profit without others' consent.

Legal objectivity:

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.