A question about copyright and portrait rights

Article 11: Copyrights belong to the author, except as otherwise provided by this Law.

The citizen who creates the work is the author. )

2. As long as the star is not used for the following purposes, it can constitute infringement.

Article 22: The use of a work in the following circumstances may be made without the permission of the copyright owner and without payment of remuneration to him, provided that the name of the author and the title of the work shall be indicated, and other rights enjoyed by the copyright owner in accordance with this Law shall not be infringed:

1) Using published works of others for personal study, research or appreciation;

3) Inevitably reproducing or quoting published works in newspapers, periodicals, radio stations, television stations, etc., for the purpose of reporting current affairs;

4) Newspapers, periodicals, radio stations, television stations, etc., or other newspapers, periodicals, radio stations, television stations, etc., that have already published articles on current affairs on political, economic, or religious issues, except where the author declares that they are not allowed to be published;

6) Translate or reproduce in small quantities already published works for the purpose of classroom teaching or scientific research in schools, for use by teaching or scientific research personnel, but must not publish or distribute them;

7) The use of published works by state organs within a reasonable scope for the performance of official duties;

8) Libraries, archives, memorial halls, museums, art galleries, etc., reproduce works in the collection of the library for the purpose of displaying or preserving editions;

9) free performances of published works that have not been charged to the public and have not been remunerated to performers;

10) Copying, painting, photography, or videotaping works of art set up or displayed in outdoor public places;

11) Translate works created in the Chinese language that have been published by Chinese citizens, legal persons, or other organizations into works in minority languages for publication and distribution in China;

12) Convert published works into Braille.

3. All rights of copyright belong to the copyright owner, and others do not enjoy the rights, except for the authorization of the copyright owner, so the star has no right to use.

4. Celebrities enjoy portrait rights, and copyright owners must obtain the consent of portrait rights holders to carry out commercial activities.

General Principles of Civil Law. Article 100: Citizens enjoy portrait rights, and citizens' portraits must not be used for profit without their consent.

Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China

139. The use of a citizen's portrait for advertising, trademarks, window decoration, and so forth without a citizen's consent for the purpose of making a profit shall be found to be an infringement of a citizen's portrait rights.

5. Non-profit use, if it deliberately distorts, scandalizes, or insults the personal dignity of the portrait rights holder, also constitutes infringement.

Legal analysis: Portrait right infringement refers to the use of information technology to infringe on the portrait rights of others, or the production, use, disclosure, distribution, rental, and exhibition of others' portraits without the consent of others.

Legal basis: Civil Code of the People's Republic of China

Article 1018: Natural persons enjoy portrait rights, and have the right to make, use, disclose, or permit others to use their own likenesses in accordance with law.

A portrait is an external image that can be identified by a specific natural person reflected on a certain carrier by means of images, sculptures, paintings, etc.

Article 1019: The portrait rights of others must not be infringed upon by any organization or individual by means such as defacement, defacement, or the use of information technology to forge them. Without the consent of the portrait rights holder, the portrait of the portrait rights holder must not be produced, used, or disclosed, except as otherwise provided by law. Without the consent of the portrait rights holder, the portrait rights holder must not use or disclose the portrait of the portrait rights holder by means such as publication, reproduction, distribution, rental, or exhibition.

The Civil Code provides for the infringement of portrait rights, see Article 1019.

Article 1019: The portrait rights of others must not be infringed upon by any group or individual, such as defacement, defacement, or forgery by means of information technology. Without the consent of the portrait rights holder, the portrait of the portrait rights holder must not be made, used, or disclosed, except as otherwise provided by law.

Without the consent of the portrait rights holder, the portrait rights holder must not use or disclose the portrait of the portrait rights holder by means such as publication, reproduction, distribution, rental, or exhibition.

1.There is an infringement. Acts of reproducing the portrait of another person, such as producing, using, or publicly reproducing a work of visual art or its reproductions that embody the image of a citizen without the consent of the portrait rights holder.

2.The infringer is subjectively at fault. The subjective form of infringement of portrait rights is manifested as intentionality.

3.The degree of fault requirement for liability.

4.Property damage is not a constitutive element. Even if no damage to property has been caused, a lawsuit may be filed with the people's court for compensation for cessation of infringement, compensation for grinding or mental damages, etc.

5.There is no reason for illegal obstruction.

The copyright issue of portrait works can be dealt with in the following ways:

1. The exercise of portrait copyright shall be subject to portrait right; Without the consent of the portrait rights holder, the portrait work shall not be exhibited, reproduced, published or **;

2. The exercise of portrait copyright shall be in accordance with the agreement between the portrait copyright owner and the portrait right holder.

How should the infringement of portrait rights be defined.

1. Without the consent of the person;

2. For the purpose of profit.

[Legal basis].Article 54 of the Copyright Law of the People's Republic of China.

Where copyright or copyright-related rights are infringed, the infringer shall compensate the right holder in accordance with the actual losses suffered by the right holder or the infringer's illegal gains; Where it is difficult to calculate the actual losses of the rights holder or the illegal gains of the infringer, compensation may be made with reference to the royalties of the rights. Where copyright or copyright-related rights are intentionally infringed, and the circumstances are serious, compensation may be given between 1 and 5 times the amount determined in accordance with the methods described above.

If the actual losses of the right holder, the illegal gains of the infringer, and the royalties of the rights are difficult to calculate, the people's court shall, based on the circumstances of the infringement, make a judgment to give compensation of not less than 500 yuan but not more than 5 million yuan.

In order to determine the amount of compensation, the people's court may order the infringer to provide account books and materials related to the infringement if the right holder has fulfilled the necessary burden of proof, and the account books and materials related to the infringement are mainly in the possession of the infringer; Where the infringer does not provide, or provides false account books, materials, etc., the people's court may determine the amount of compensation by referring to the rights holder's claims and the evidence provided.

The people's court hearing a copyright dispute case shall, at the request of the right holder, order the destruction of the infringing copy, except in special circumstances; The materials, tools, equipment, etc., which are mainly used to manufacture infringing copies, shall be ordered to be destroyed without compensation; or under special circumstances, order that the aforementioned materials, tools, equipment, etc. enter commercial channels without compensation.

It includes personal rights and property rights, the former has the right of publication, the right of authorship, the right of modification and the right to protect the integrity of the work; The latter has the right of reproduction, distribution, rental, exhibition, performance, screening, broadcasting, information network dissemination, filming, adaptation, translation and compilation.

Legal basis] Article 10 of the Copyright Law, copyright includes the following personal rights and property rights:

1) the right of publication, i.e., the right to decide whether the work is made public;

2) the right of authorship, that is, the right to indicate the identity of the author and sign the work;

3) the right to modify, that is, the right to modify or authorize others to modify the work;

4) the right to protect the integrity of the work, that is, the right to protect the work from distortion or tampering;

5) The right of reproduction, that is, the right to make one or more copies of a work by means of printing, photocopying, extension and macro printing, audio recording, video recording, reproduction, reproduction, digitization, etc.;

6) The right of distribution, that is, the right to provide the original or copy of the work to the public in the form of ** or gift;

7) The right to lease, that is, the right to permit others to temporarily use the original or reproduction of audiovisual works or computer software for a fee, except where the computer software is not the main subject matter of the lease;

8) The right of exhibition, that is, the right to publicly display the originals or reproductions of works of art or photography;

9) the right of performance, that is, the right to perform works in public, as well as the right to publicly broadcast performances of works by various means;

10) The right of screening, that is, the right to publicly reproduce art, photography, audio-visual works, etc., through projectors, slide projectors and other technical equipment;

11) the right of broadcasting, that is, the right to publicly communicate or retransmit works by wire or wireless means, as well as the right to communicate to the public the broadcast works through loudspeakers or other similar means of transmitting symbols, sounds or images, but excluding the rights provided for in item 12 of this paragraph;

12) the right of information network dissemination, i.e., the right to make the work available to the public by wired or wireless means, so that the public can obtain the work at a time and place of its choosing;

13) the right of filming, that is, the right to fix the work on the medium by the method of filming the audiovisual work;

14) the right of adaptation, i.e., the right to change a work to create a new work of originality;

15) the right of translation, i.e. the right to convert a work from one language to another;

16) the right of compilation, that is, the right to assemble a work or a fragment of a work into a new work through selection or arrangement;

17) Other rights that shall be enjoyed by the copyright owner.

Copyright owners may grant permission to others to exercise the rights provided for in items (5) through (17) of the preceding paragraph, and receive remuneration in accordance with the agreement or the relevant provisions of this Law.

The owner of the right to raise a copy may transfer all or part of the rights provided for in subparagraphs (5) to (17) of the first paragraph of this Article, and receive remuneration in accordance with the agreement or the relevant provisions of this Law.