(Following Part I)

Exceptions

The exceptions mean five statutory types of fair use of a portrait set out in Article 999 (Fair Use) 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”, 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 touse 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 theemployees’ 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 portraits. 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 organizershould 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 interpretationsthen in effect unless otherwise provided in any law or legal interpretation. 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”, 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.

Special protection

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 rules.

Evidence preservation

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.

Damages

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 courtto 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 photo depending on how popular the claimant is. 

Conclusion

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 action, 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.