A few days ago, in the case of a well-known artist Xiao Shenyang suing self-media person Wan Xiaodao for infringing on portrait rights, the People's Court of Hunnan District of Shenyang made a first-instance judgment: self-media Wan Xiaodao compensated Xiao Shenyang 12,000 yuan and also compensated Xiao Shenyang's lawyer fees for 3,000 yuan. As soon as the news of
came out, it attracted widespread public attention.
1
A public account article triggered a portrait rights lawsuit
In March this year, a news was exposed on the Internet: the well-known artist Xiao Shenyang (real name: Shen He ) sued the self-media person Wan Xiaodao on the grounds of "portrait rights dispute" and claimed 183,000 yuan.
The indictment of Xiao Shenyang claimed that in September 2021, Xiao Shenyang discovered that "Wan Xiao Dao" had published an article titled "The "Popularity and Outdated" on its official certified WeChat public account "Wan Xiao Dao" without his consent. The article involved in the case used 8 pictures containing Xiao Shenyang's portraits without his consent to conduct profit-making activities such as commercial drainage and promotion services, which had obvious commercial use attributes and infringed on the portrait rights of Xiao Shenyang.
Xiao Shenyang's lawsuit includes: requesting the court to order "Wan Xiaodao" to immediately delete the links and pictures suspected of infringement and stop the infringement; order "Wan Xiaodao" to publish and publish an apology letter that has been reviewed by the court for one month in newspapers published nationwide, including " Law Daily " and in the WeChat public account "Wan Xiaodao", to apologize to Xiao Shenyang for one month; order "Wan Xiaodao" to compensate for economic losses of 180,000 yuan and the cost of rights protection of 3,000 yuan, totaling 183,000 yuan.
Wan Xiaodao, who was once known as the "No. 1 writer in the entertainment industry", entrusted lawyer Zhou Zhaocheng to respond after receiving a summons from the People's Court of Hunnan District, Shenyang City.
A few days ago, the People's Court of Hunnan District, Shenyang City made a first-instance judgment: self-media Wan Xiaodao compensated Xiao Shenyang 12,000 yuan and also compensated Xiao Shenyang's lawyer fees 3,000 yuan.
Xiao Shenyang himself and his agent have clearly stated that they will not respond to the lawsuit.
As Wan Xiaodao's attorney, Zhou Zhaocheng told the Law Network Research Institute that the first instance rejected the plaintiff Xiao Shenyang's request to the defendant Wan Xiaodao apologize to the plaintiff for a month in newspapers and the WeChat public account "Wan Xiaodao" in the first instance; nor did he support Xiao Shenyang's sky-high claim for economic losses of 183,000 yuan. In the judgment, it is worthy of praise that the first instance court faced the problem directly and responded to the defendant's demands. That is, it affirms that fans have the right to supervise the stars, and the judgment also explains that if Wan Xiaodao posted pictures and texts involving Xiao Shenyang on his personal social account, it would not constitute infringement. The reason why the infringement was that Wan Xiaodao official account had enterprise certification and the mall drainage, so it finally supported Xiao Shenyang's 12,000 compensation.
Zhou Zhaocheng also stated that regarding the amount of compensation, the court believes that the number of clicks on the article involved in the case has reached as many as 100,000 times, and the article is operated by the company, which objectively generates traffic, thus bringing economic benefits, so it is sentenced to Wan Xiaodao to compensate 12,000 yuan. If we follow the laws on the protection of portrait rights in our current Civil Code, , the judgment of the first instance court is still based on the law.
2
Lawyer:
Where is the boundary of "reasonable use" of celebrity portrait rights?
In fact, since the lawsuit between Xiao Shenyang and Wan Xiaodao started, there is a representative view that Xiao Shenyang is obviously dissatisfied with the content of the article "The Become and the Outdated" of Xiao Shenyang", but he used the infringement of portrait rights to sue, which is quite "interesting".
Law Network Research Institute contacted Wan Xiaodao. He said that many readers and friends read his article and found it very objective and what they said was true. The first half of the article describes the bitter experience of Xiao Shenyang before becoming popular. It is actually very inspiring and moving. Why do you write about him later is because he is indeed out of date? Some media have also done similar reports before.
At the same time, Wan Xiaodao also raised his confusion-"There are hundreds of thousands of photos of Xiao Shenyang on the Internet, and he will not prosecute the infringement of portrait rights. The articles he wrote are slightly worse than his wishes, so he used the portrait rights to suppress it. I think this is suspected of using portrait rights to suppress public opinion.”
In this regard, Ma Lihong, a member of the Lawyer Expert Database of the Lawyer Daily and the Entertainment Committee of Beijing Deheheng Law Firm, said that the relationship between celebrities and self-media is love and killing each other. On the one hand, celebrities need self-media reports to maintain popularity. On the other hand, celebrities are also affected by negative comments and infringement of self-media. The typical significance of the case of Xiao Shenyang suing Wan Xiaodao for infringement of portrait rights lies in the fact that this case raises two questions worth thinking about: one is where the boundary of celebrities' tolerance for social evaluation; the other is the reasonable use of portrait rights Where is the scale?
Ma Lihong analyzed that, first of all, if Wan Xiaodao described it as a fact, and the evaluation is objective and there is no intentional derogation, Xiao Shenyang should be tolerant of such evaluations; otherwise, he may be held legally responsible for infringement of reputation rights. Secondly, generally speaking, publishing his portrait without the consent of the portrait right holder is indeed infringement, but as a public figure, the portrait right of a celebrity has been derogated. Therefore, if the portrait of a public figure is generally not infringement within the scope of "reasonable use" stipulated by the law, the portrait of a public figure is not infringement. But If you have profitable purposes or make a profit from facts, it will constitute unreasonable use, which will constitute an infringement of the right to celebrity portraits.
3
00000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000 , I am also very confused. The court ruled that its public account is the main body of the company, representing the company's business operation behavior, not the personal behavior, and believed that it could be used to meet the needs of citizens' personal star chasing, public opinion supervision, and artistic appreciation through other channels and platforms. He understood this meaning, if the official account of the individual subject is used to publish such an article and use the portrait of Xiao Shenyang, it would be fine, but he was not sure.
"This case has a weather vane significance in the Internet era and is worth in-depth discussion. Nowadays, self-media is an important form of online communication in this era. In order to illustrate a certain issue, self-media quotes many public stills of celebrities in a certain article. I chose to represent this case because I wanted to explore the boundaries of the use of celebrity portrait rights and also hope to promote legislation on the rights restrictions of public figures. "Zhou Zhaocheng said.
"Legal Daily" Law Expert Database Member and Senior Partner of of Kangda Law Firm also believes that in this case, in today's booming self-media, it has a guiding role in the production of "self-media people" in online promotion or online publicity of content such as online articles and videos that quote celebrity portraits. In an era when everyone can be "self-media", generally when posting content on online tweets or advertisements, the coexistence of pictures and texts will better show the expression content. If we want to legally meet the citation needs of self-media for profit operation, the most direct way can refer to the provisions of Article 1019, paragraph 1 of " Civil Code of the People's Republic of China ", that is, obtain the consent of the portrait right holder. Of course, compared with ordinary citizens , Since the rights of celebrities' portraits and public interests have more intersections, our country's laws allow us to use the rights of public figures such as stars reasonably. Therefore, if we do not have the consent of the celebrities, we should consciously quote within the scope of reasonable use.
4
Expert:
0 The portrait rights of celebrities are not only personal matters
In fact, according to Article 1020 of the Civil Code of the People's Republic of China, if the following behaviors are reasonably implemented, the portrait rights of the portrait rights holder may be used within the necessary scope for personal learning, art appreciation, classroom teaching or scientific research; other actions of producing, using, and disclosing the portrait rights holder's portrait rights holder's portrait rights holder for personal learning, art appreciation, classroom teaching or scientific research; to safeguard the public interest or the legitimate rights and interests of the portrait rights holder, other actions of making, using, and disclosing the portrait rights holder's portrait rights holder.
Law Network Research Institute noticed that the first-instance judgment of the People's Court of Hunnan District, Shenyang City gave three reasons, and finally determined that the defendant's behavior of using the plaintiff's portrait pictures in the official account "Wan Xiaodao" registered and operated by him did not meet the statutory "reasonable use" conditions and constituted portrait infringement. The plaintiff should bear the corresponding infringement liability.
The picture above is a screenshot of the first instance judgment. Source: Respondent
Professor Huang Wushuang, Director of the Intellectual Property Research Center of East China University of Political Science and Law and Vice President of the China Intellectual Property Law Research Association, believes that as a public figure, the consent to the use of his portrait also includes the implicit method. When celebrities participate in public events or appear in public places, many media reporters will take photos. At this time, celebrities often do not object or refuse, but instead pose and look, and are photographed by media reporters. Even in some scenes, celebrities take the initiative to invite media reporters to shoot. Therefore, the aforementioned actions of celebrities are to implicitly agree to others' use of portraits in related articles.
Huang Wushuang explained that he implicitly agreed to use portraits to include at least the following situations: first, it is production, there is no doubt that media reporters will not be able to shoot; secondly, it is public. As mentioned above, celebrities will even take the initiative to invite media reporters, and hope to use media reporters' reports to expand their visibility or influence, so that the channel is to open portraits; finally, it should include at least "public" use, "copy" use included in the broad scope, and non-profit free "providing/distribution" use.
Huang Wushuang said that public figures usually have social influence beyond ordinary citizens by virtue of their social status. Therefore, when the private interests of public figures conflict with the public interests of society, the necessary deductions must be borne in order to achieve a balance of interests in legal protection. This balance is essentially to achieve true legal equality. As a star, Xiao Shenyang's portrait rights should be different from ordinary people in terms of legal application, and their portrait rights should be reasonably restricted, which has great practical significance in maintaining social justice order and fair value orientation. Xiao Shenyang's portrait interests are not only purely personal affairs, but also part of the public life. They have become public events, social phenomena, and become inevitable content in news reports and historical records.
"The portrait photos involved in this case are all photos of Xiao Shenyang participating in public activities or appearing in public places. If Wan Xiaodao's articles published in self-media can be directly identified as news reports, the provisions of Article 1,020 of the Civil Code can be cited to produce, use and disclose Xiao Shenyang's portrait without obtaining consent." Huang Wushuang said.
Topic Planning | Legal Network Research Institute
Text | Shen Ruoshui
Statement | Cover image comes from "Xiao Shenyang" Weibo, and the relevant pictures in the article provide respondents with
Source: Legal Network
