My photo has been used by others. I don't want his number. I just want to delete the photos. What should I do?

Personal photos shall not be used for profitable publicity such as advertising and window display without my consent. If they have been used, you can make representations to users and ask for deletion. At the same time, it is proposed to users that the right of personal portrait is protected by law. If it is not removed or deleted, the right to seek legal protection will be reserved.

If it has not been deleted after consultation, you can safeguard your legal rights according to the relevant provisions of portrait rights.

Relevant provisions of portrait right

Portrait right is a kind of personality right enjoyed by natural persons, and its content is the personal interests embodied in their portraits. A work that reflects the image of a natural person, including the five senses, through photography or plastic arts. Portrait right is a kind of personality right, the right of natural person to make portraits and the right to use standard forms. Legal portrait is an integral part of the personality of a natural person, and the spiritual characteristics embodied in the portrait can transform or derive the material interests of citizens to a certain extent. The legal protection of citizens' portrait right is based on the portrait right, which reflects citizens' spiritual interests and personality interests in many ways.

The contents of portrait right include:

(1) Citizens have the right to their own portraits and the exclusive right to make and use portraits.

(2) Citizens have the right to prohibit others from illegally using their portrait rights or to damage or defile their portrait rights.

1, exclusive right of portrait production

As far as photography is concerned, it is the whole process of fixing the appearance image of a natural person on film, photographic paper or other material carriers through photography and transforming the image of a natural person into a portrait.

The exclusive right to make portraits includes: first, the portrait owner can decide to make his own portrait or let others make his own portrait according to his own needs or the needs of others and society, and no one can interfere; Second, the portrait owner has the right to prohibit others from making their own portraits without their consent or authorization. Illegally making portraits of others constitutes infringement.

When we understand the "portrait right", we often think that as long as the portrait of the portrait owner is not open, it does not constitute infringement, which is a misunderstanding of the law. Strictly speaking, it should be understood that whether the exclusive right to make portraits is infringing depends on whether the producer has obtained the permission of the portrait owner when making them. If it is produced without permission-even for the purpose of possession, it will not infringe on the direct interests of the portrait holder, so it also constitutes an infringement of the exclusive right to portrait production. As far as the photographer is concerned, as long as you aim the camera at a natural person to take a portrait, if the portrait owner disagrees, it is infringement.

2. The exclusive right to use the portrait right

Once a portrait is fixed on a material carrier, it is independent of the world and can be dominated and used by people. Although the use value of portrait is of universal significance, only the owner of portrait can enjoy its exclusive right. Its basic content is:

First, natural persons have the right to use their portraits in any way, and obtain spiritual satisfaction and property benefits through their use, and others shall not interfere (but shall not violate the law and public order and good customs). Second, natural persons have the right to allow others to use their portraits and decide to get paid for them (this requires equal consultation with the users and signing a portrait use contract). Third, natural persons have the right to prohibit others from illegally using their portraits.

3. The right to protect the interests of portraits

Portrait interests are the exclusive personal interests of citizens, and no one else may interfere or infringe upon them. The contents are as follows: first, citizens have the right to prohibit others from making their own portraits without their permission; Second, citizens have the right to prohibit others from using their portraits without permission; Third, citizens have the right to forbid others to damage, defile, vilify or distort their portraits. The general principles are: the right of citizens to copy their own image-the right to agree or disagree to copy their own image in objective material media and space; Citizens have the right to use their own portraits, to allow others to use their own portraits, and to prohibit others from using their own portraits.

main feature

1. The subject of portrait right can only be a natural person. Only natural people have the right to portrait and the right to portrait. Legal persons or other social organizations do not have the right to portrait because there is no objective "portrait" that can independently reflect their appearance. The "corporate image" of a legal person does not refer to a person's portrait, but refers to the comprehensive situation and social evaluation of the legal person's operation, scale, management, benefit, reputation and product quality. )

2. Portrait right also has a kind of property interest, which is derived from the personality interest of the portrait right holder. It allows the portrait owner to transfer the portrait right to a certain extent, and allows others to make and use their own portraits, and get the due use value from them.

3. Portrait right is also a marked personality right, which is grassroots. The basic function is to identify personality by appearance and image, so as to identify every specific natural person. (And the right to name is to identify personality through written symbols).

form of expression

Portrait right is one of citizens' personality rights, which is mainly manifested in two aspects: first, citizens have the right to own their portraits and have the right to prohibit others from maliciously defacing their portraits or using their portraits for profit without their permission; Second, they have the right to agree with others to shoot and sketch my portrait for free or paid, and ask for judicial protection.

However, the legal protection of portrait right is different in different countries. Most countries include it in the scope of copyright (such as the Federal Republic of Germany and Italy), and a few countries include it in the chapter of personal rights (such as China). There are quite a few national laws that are not expressly stipulated, but they are protected according to the situation in judicial practice (such as Japan and the United States).

In terms of the level of protection, the regulations of different countries are also different. Some countries prohibit unauthorized and illegal photographing of other people's portraits. For example, in Japan, a national railway employee was working and taking a bath in the east area of the national railway yard in 1967, and was found by the railway police staff. The public security personnel wanted to take nude photos of the employee, and the two sides had a dispute and filed a lawsuit with the court. The Tokyo District Court held that the public safety official violated citizens' right to privacy. In this case, the court held: "Although it cannot be said that the right of portrait has been established in substance in China, as one of the national rights protected by the Constitution, citizens have the right to take photos or publish at will without consent ...";

Other countries stipulate that others may not use it without permission. For example, Italian law stipulates that "portraits shall not be displayed, copied or sold without the consent of the portrait owner", except for the needs of justice, public safety and scientific education. , which involves the public interest; There are also some countries that protect portrait rights as similar property income rights. Because of the different protection modes of portrait right, the theoretical research in this field is more active.

Identification standard

Article 100 of China's General Principles of Civil Law stipulates that "citizens have the right to portrait and may not use their portraits for profit without their consent." It can be seen that the behavior that constitutes a violation of citizens' portrait rights usually has two elements: first, without their consent; The second is for the benefit. The common infringement of citizens' portrait rights is mainly the use of other people's portraits in commercial advertisements, commodity decoration, book covers, printed calendars, etc. without their consent. The victim can stop the infringement of portrait rights by himself, for example, demanding to hand over the film he shot and removing the portrait from public display. You can also request the actor to stop the infringement, remove the obstruction, eliminate the influence or compensate for the losses according to law. The right to claim damages does not require property damage.

Other laws and judicial interpretations have also made some corresponding provisions on the infringement of portrait rights. Article 139 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of General Principles of Civil Law stipulates that my portrait shall be used for advertisements, trademarks, window decorations, etc. for the purpose of making profits. Without the consent of citizens, it should be regarded as an act of infringing on citizens' portrait rights. [2] In addition, malicious damage, defilement, uglification of citizen portraits, or personal attacks using citizen portraits. It is also an infringement of the right to portrait.

Main rights

Portrait owners have exclusive rights to their own portraits. Portrait owners are not only free to dispose of their own portrait rights, but also have the right to prohibit others from using their exclusive portraits without their consent. Specifically, the content of portrait right includes portrait ownership, production right and use right.

Portrait right means that citizens have the right to own their own portraits. Without the permission of a citizen, no one else may own or damage the portrait of the citizen.

Portrait right refers to the right to decide and implement portraits, that is, the right to decide whether and how to make portraits.

Portraits can make their own portraits, such as self-portraits and self-paintings. You can also entrust others to make it, such as a photo studio or studio. If someone takes the initiative to take pictures or make statues for the portrait person, he must obtain the right to make portraits from the portrait person.

The right of portrait in the legal sense includes the personal interests enjoyed by the owner of portrait based on his portrait. Generally 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.

Commitment mode

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.

civil liability

The principle of determining that the right to portrait has been violated

There are certain principles to determine that the right to portrait has been violated. According to China's General Principles of Civil Law, as long as these three requirements are met, civil liability that constitutes infringement of portrait rights can be identified: First, the occurrence of damage facts. For example, after the victim's portrait right is infringed, the victim's reputation, status and identity are hit, which brings mental pain, mainly reflected in the fact that the possibility of the portrait owner obtaining property benefits from his portrait is reduced, including direct losses and indirect losses, including mental damage and material damage. 2. The infringer is subjectively at fault (including intention and negligence). That is, if there are acts prohibited by laws and regulations in photography activities and illegally infringe on the portrait rights of others, it can be considered that there is a fault. 3. There is a causal relationship between the damage facts and the tort. This causal relationship must be an inherent, essential and inevitable connection between the photographer's behavior and the damage result.

Situation in photography activities

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 right without the consent of the portrait right holder and without hindrance.

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 the right of portrait in China's civil law are basically aimed at "improper use" of the right of portrait. 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 100 of China's General Principles of Civil Law stipulates: "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." . Article 120 stipulates: "If a citizen's right to name, portrait and reputation is damaged, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology and claim 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.

Third, maliciously insult and vilify the portraits of others.

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:

In recent years, there seem to be more and more reports of so-called infringement of "portrait right". Why? There are many reasons, but there are three points to sum up: first, photographers don't understand the law; Second, photographers intentionally infringe on people's portrait rights for the purpose of "making profits"; Third, the photographer does not understand the legal significance of the right to portrait. As long as he sees his portrait in the newspaper, he will sue for compensation.

1, "for profit" must meet two conditions at the same time: first, use the portrait of others 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 another person's portrait rights (reputation rights and honor rights) in any form shall also bear legal responsibilities: that is, the infringed person has the right to ask 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, the users are 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.