(By Lv Xuanxuan and Sun Yinuo) Back in September 2020, Beijing Internet Court published “Rules on Hearing and Deciding Internet Portrait Right Cases” (“Rules”) stating that unauthorized use of a person’s portrait in an advertorial should be deemed as infringement; unauthorized use of a recognizable portrait should be deemed as infringement; the popularity of the person in the portrait is important to calculate the amount of damages; false endorsement will result in more liabilities; and legal and reasonable use of portraits should not be deemed as infringement. According to statistics, the number of portrait right infringement cases, mostly connected with portraits of well-known public figures, especially celebrities in areas of entertainment, ranked immediately below the number of internet copyright infringement cases. Infringement of portrait right of “performers” in areas of entertainment is common. This article gives performers some advice on how to protect their rights in internet portrait right infringement cases to help them claim rights in an appropriate way and seek reasonable and effective remedies.
Article 2 (a) of Beijing Treaty on Audiovisual Performances concluded by China in June 2012 provides that performers are actors, singers, musicians, dancers and other people who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore. Under Article 39 of Copyright Law (amended in 2020), performers have two personality rights and four property rights. Under Article 1018 of Civil Code, natural people enjoy portrait rights. Therefore, performance organizers are not performers or subjects of portrait rights although they may obtain property rights of performers’ rights according to law, which we do not discuss in this article and will write another article on. Accurately identifying whether portrait right holders are “performers” is an important step in confirming their qualification of plaintiff to protect their rights in civil litigation procedures.
Three elements of a portrait protected by law are the external image of a person, the carrier of the external image and recognizability, and the external image presented through a certain carrier should have relatively clear directionality and recognizability. Public figures are not sole owners of portrait rights protected by law. Performers’ portraits (images) should also be recognizable. For example, generally models have certain advantageous images which are financially valuable in promotional activities, so their portraits are protected by law. In contrary, if the external image presented cannot point to a specific natural person, it should not be identified as a portrait. For example, in Ms. Chen v Guangzhou Yilin International Investment Co., Ltd. and Guangzhou Hongsheng Medical Technology Co., Ltd. re. dispute over portrait right, one of the pictures in dispute took the back view of the portrait right holder and the other took her profile, neither of which involved any external features identifiable as the portrait right holder and clearly pointed to the portrait right holder, failing to constitute the portrait protected by law.
Cases involving portrait right infringement on the internet may arise from infringement upon a performer’s off-stage (off-screen) image or on-stage (on-screen) image. The former is protected by the “portrait right”in Chapter IV of Book of Personality Rights of Civil Code while the latter is also protected by the personality rights of performers’ rights in Copyright Law (amended in 2020).
Acts of infringement upon portrait rights depend on main ways of advertising. For example, the infringer, without authorization from the portrait right holder, makes and publishes on highways billboards with the portrait and signature of the right holder or put the portrait and signature on product packages. In terms of internet advertising, corresponding to such traditional advertising methods, unauthorized use of the portrait in advertorials is common in cases involving portrait rights infringement on the internet decided by internet courts in Beijing, Guangzhou and Hangzhou. For example, the infringer uses, on a company’s website or in an article of a Wechat public account, the photo of the portrait right holder which is illegally obtained from the internet or social media published by the portrait right holder, such as Weibo, sometimes together with the name of the portrait right holder; the infringer uploadsto social media platforms an infringing video clip containing the content of a TV show participated by the portrait right holder, knowing that the video clip uploaded will be published on a third party’s website and its related mobile application at the same time; the infringer uses a group photo containing the portrait right holder on a Wechat public account for promotional activities relating to the infringer’s busniess.
The exceptions mean five statutory types of fair use of a portrait set out in Article 999 (Fair Use)1 and Article 1020 of Civil Code which do not constitute infringement. In legal practices, they are set out in Item 5 of Rules, stating that “legal fair use of portraits should not be deemed as infringement”. Fair use of a person’s portrait should meet specific conditions and purposes in order to reasonably protect specific public interests and the person’s legitimate rights and interests.
The fact that the performer’s portrait or on-stage image used is available to the public cannot constitute a defense for fair use. For example, in the case “Ge You v Shenzhen Taoshi Movie Co., Ltd. re. internet infringement”2 , the court of first instance held that the defendant published the article in dispute on its public Wechat account with the intention to maintain or improve the popularity of the public account and create more potential business opportunities by using the plaintiff’s portrait, which should be deemed as intentional, lacking justification and necessity to use the portrait. Similar defences are frequently used but generally cannot help establish fair use of the portrait.
The labor relation between the portrait right holder and the person alleged to have infringed the portrait is an acceptable and reasonable defence for the fair use of the employees’ portrait by the employer. There is a basis of personal dependence between the employees and the employer in the case of labor relation, so it may be reasonable and justifiable for the employer to use the employees’ portrait to advertise the company’s image. No opposition to the employer using their portraits made by the employees during the employment term shall be deemed as the employees’ implied consent for the use of their portraits3 . In other words, the performance organizer can reasonably use the performers’ portraits and on-stage images. However, if the performer has no labor relation with the performance organizer, the performance organizer should make an agreement to appropriately use the performer’s portrait.
Please note that retroactivity in law application should be considered to judge whether an infringement upon portrait rights has been constituted. Civil cases arising from legal facts that occurred before Civil Code took effect should be governed by the laws and legal interpretations then in effect unless otherwise provided in any law or legal interpretation4 . According to Article 100 of General Provisions of Civil Law, acts infringing a citizen’s portrait shall be “intended to make money”. For example, in the case “Deng v Caijiu E-Commerce Sales Center in Pingcheng District, Datong City and Xiao re. Portrait right infringement”5 , the court of first instance found that the use of the portrait by the infringing party for potential business benefits should be deemed as promotional and sales activities with the intention to make money. However, the element of “the intention to make money” is not included in the Book of Portrait Right of Civil Code. Namely, unauthorized use of the portrait “with no intention to make money” may also be deemed as infringement under Civil Code.
There are a lot of minor performers, whose portraits should be used in compliance with provisions on legal custody under Civil Code, provisions on custodian’s consent to performance under Minors Protection Law (Amended in 2020), prohibitions of minors from advertising endorsements under Advertising Law (Amended in 2021) and provisions on explicit collection of personal data under Personal Information Protection Law (Effective on 1 November 2021). We believe that the object to be used and communicated in the use of a person’s portrait through information network communication shall undoubtedly be data since its external manifestation meets the legal definition of personal information6 . Personal information of minors under 14 are sensitive personal information. Therefore, use of portraits of minor performers on the internet, especially those under 14, should be subject to explicit consent of their custodians and sensitive personal data protection rules7.
Based on “Rules” and massive judicial precedents, the claimant need to present evidence of the above four elements. It is critical to preserve online evidence electronically. In a few cases the plaintiff could not prove the portrait in dispute once appeared on the defendant’s or the third party’s platform and failed the case. Online evidence may be gathered through notarization or online evidence preservation platform. For example, the claimant can fix the fact that the infringing party has sold online the works using his or her portrait without authorization through notarization. Evidence of the connection between the claimant and the portrait can be provided through the judicial chain8 of the internet court or the evidence chain of a third party. For example, the personal authentication page of the portrait right holder’s Sina Weibo and the link and screenshot of the work can prove the consistency of the real name and the personal authentication on Sina Weibo and the ownership of the work in dispute. The claimant’s life photos and videos showing their identity can prove the person in these photos and videos is the same as the person in the picture in dispute.
According to Articles 995 through 998 of Civil Code, the legal responsibility for personality right infringement shall equal to the claimant’s actual losses arising from the infringement. Unreasonable use should also result in civil responsibility. Using the influence of the portrait right holder to popularize the infringing party and its services or products is usually seen as intentional misconduct, in which case the amount of damages should be decided on the basis of the severity of the misconduct, the way to commit the infringement, the period of time the infringement lasts and the circumstances and effects of the infringement. In practice, the claimant usually proves the infringing party’s profit from the infringement by collecting sales data and unit prices of products and services recorded on e-commerce platforms, which can still serve as supplemental evidence of profits made by the infringing party even though the increase in profits from the use of the portrait cannot not be accurately calculated. In addition, the performer needs to provide the latest license contract, such as advertisement endorsement contract, to provide the market value of the portrait.
Please note that an advertisement endorsement license is still an important factor considered by the court9 to decide the losses although it could not be directly used to calculate the claimant’s losses in a portrait right infringement case in which the infringing party only commits a single infringement since the license generally contains the license to use both the portrait and the name. Courts have discretion to decide the amount of damages awarded. In this respect local disparities are not apparent. In some of online portrait right infringement cases decided by Beijing, Guangzhou and Hangzhou internet courts, the amount of damages awarded was basically calculated on the basis of the number of photos of the portrait in dispute at 1000-2000 RMB per photo10 depending on how popular the claimant is.
In personality right infringement cases the plaintiff bears heavy burden of proof and unavoidably cost a lot of money and time to protect their rights by filing an action. Therefore, if the infringement lasts for a short period of time and the number of portraits infringed is small, the claimant may first choose the complaint mechanism of the third-party e-commerce platform to settle before the action11, spending less time protecting their rights to some extent. In case of repeated infringement, infringement of more than one right (performer’s right and portrait right), infringement by many infringing parties, etc., especially when the infringement may damage the claimant’s reputation, we would advise the claimant to take serious action and be fully prepared for rights protection based on “Rules” and protection practices against copyright infringement.
1 “The name, entity name, portrait, personal information, etc. of a person of the civil law may be used in news reports, public opinions, etc. in a fair way for public interests. Misuses that damage the person’s personality rights will result in civil liability in law.”
2 (2021) J0491CF16207
3 (2020) Y0192CF46936
4 Article 1 of Several Provisions on the Retroactivity in the Application of Civil Code of PRC by the Supreme People’s Court
5 (2020) Y0192CF43971
6 Personal data mean all kinds of information recorded electronically or in other ways in connection with an identified or identifiable natural person, not including anonymized information (Article 4 of Personal Information Protection Law of PRC)
7 Chapter 2 “Personal Information Processing Rules”, Section 2 “Sensitive Personal Information Processing Rules” of Personal Information Protection Law of PRC
8 For example, Beijing Internet Court has “Tianping Blockchain” and Hangzhou Internet Court has “Judicial Blockchain”
9 (2020) J0491CF34020 Li Bingbing v Chongqing Saint Yafei Technology Co., Ltd. re. online infringement
10 In (2020) J04CF418 Fujian Chuyuan Food Co., Ltd. v Huang Xiaoming re. online infringement, 371 photos in dispute were used, for which damages of 490,000 RMB and reasonable costs of 10,000 RMB (roughly 1,348 RMB/photo) were awarded. In (2021) J0491CF4563 Qi Wei v Shenzhen Qianhai ATLS Mall E-commerce Co., Ltd. re. portrait right infringement, 22 photos in dispute were used, for which damages of 22,000 RMB were awarded. In (2020) Z01CF6392 Hangzhou Jimei Network Technology Co., Ltd. v Wang Yibo re. portrait right infringement, 5 photos in dispute were used, for which damages and reasonable costs of 10,000 RMB altogether (roughly 2,000 RMB/photo) were awarded.
11 Take Z0192CF9539 for example, the plaintiff withdrew the infringement action against the infringing party, a store on Taobao, mostly because the defendant had paid damages to the plaintiff.