Tracking|"Tan Talks Traffic" is in controversy again, what is the reason for the image rights holder's claim of 1 yuan?

　　The rights protection incident of "Tan Talks Traffic" has made waves again.

However, this time, Chengdu TV, the producer of the program, became the defendant, and some citizens who appeared in the program filed a lawsuit on the grounds that their portrait rights had been violated.

　　On the 21st, Yicai exclusively learned from Zhou Jie, a partner lawyer of Zhejiang Zeda Law Firm, that recently, several interviewed citizens who had appeared on the "Tan Talks Traffic" program contacted him through social media and other channels to inquire about the situation. Matters related to the infringement of portrait rights.

Among them, one of the interviewees who appeared on the show officially entrusted him to file a lawsuit against Chengdu TV.

　　"The court accepted the litigation materials we submitted on the 19th. According to the regulations, the court will make a decision on whether to file the case within seven days." Zhou Jie said.

　　According to the "Civil Complaint" provided by Zhou Jie, in the winter of 2009, the plaintiff was investigated and dealt with on the spot by police officer Tan Qiao for a traffic violation.

During Tan Qiao's law enforcement process, the defendant Chengdu Radio and Television Station filmed the whole process.

After that, without the consent of the plaintiff, the defendant put the video on the "Tan Talks Traffic" program for public dissemination.

　　The plaintiff believed that, because he believed that "Tan Talks Traffic" was a public welfare law popularization program led by the public security organs, he did not raise any objection to the use of his portrait in the program.

However, in 2022, Chengdu TV will entrust Chengdu Culture Communication Co., Ltd. to protect the rights of the "Tan Talks Traffic" program on the grounds that a third party has infringed its copyright, and file a claim against the third party.

Based on this, it can be considered that the plaintiff's production and dissemination of "Tan Tan Traffic" is based on profit.

Under the circumstance of understanding the true purpose of the defendant, the plaintiff does not agree with the defendant's production and dissemination of pictures containing his portrait.

　　"No one can profit from their own illegal acts. This is the principle of the law." Zhou Jie told reporters that according to the plaintiff's request, in addition to requiring the defendant to stop the infringement and apologize, he is also temporarily claiming that the defendant should compensate for the loss of one yuan. .

The battle for profit in "Tan Talks Traffic"

　　According to the "Civil Code" that will take effect in 2021, "for profit" is no longer a constituent element of infringing on others' portrait rights.

However, because in the "Tan Talks Traffic" program, all the videos were filmed before the "Civil Code" came into effect, the "Civil Complaint" provided by Zhou Jie claimed that whether the defendant Chengdu TV station constituted infringement should be based on the "General Principles of Civil Law". The relevant provisions in "For-profit" are regarded as an important element of portrait right infringement.

　　Article 100 of the "General Principles of the Civil Law" stipulates that citizens have the right to portrait, and without their consent, citizens' portraits may not be used for profit.

　　A number of interviewees in the legal profession agreed with this.

They agreed that "for profit" is the key to the "Tan Talks Traffic" program constituting the infringement of portrait rights.

However,

　　Li Weimin, director of Beijing Weibo Law Firm and secretary-general of the Copyright Law Committee of the Beijing Intellectual Property Law Research Society, believes that Chengdu TV had previously filed an infringement lawsuit and claimed losses on the grounds that a third party infringed the copyright of its "Tan Tan Traffic".

Based on this fact, it may be inferred that Tan Tan Traffic is profitable.

　　"In the previous copyright case related to "Tan Talks Traffic", Chengdu TV claimed that the third party infringed on the market interests that could have been obtained by itself, eroded the market share of the program, and lost the program click rate and video licensing interests. It all shows that "Tan Talks Traffic" is not a simple public welfare program." He explained to Yicai.com.

　　Zhang Yan, a partner lawyer of Beijing Lifang Law Firm, said in an interview with China Business News that there is no causal relationship between whether the copyright owner makes a claim for copyright infringement and whether the claim is successful and whether the work is "profitable".

　　Chen Fu, a partner lawyer at Beijing Dentons Law Firm, also holds a similar view.

He further stated that at present, Chinese laws have not yet clearly stipulated the specific meaning of "for-profit", nor does it stipulate whether the copyright owner's successful protection of the rights of his works belongs to "for-profit".

In relevant judicial practice, it is generally judged whether the perpetrator uses the portrait of the person who has the right to portrait "for profit" based on the actual situation of the case.

　　"For example, in a series of audio-visual works, it is generally not mechanically defined from the revenue of a certain episode (the profitability of the program), but will be determined from the nature of the work, the publication, distribution, circulation, etc. of the work. The situation, commercial sponsorship, commercial advertising, subjective perception of the actor and other factors should be comprehensively considered." Chen Fu told reporters.

　　Wu Yuhui, an associate professor at the Intellectual Property Research Institute of Jinan University, believes that "Tan Talks Traffic" is a public welfare and non-profit program, so it does not constitute a necessary condition for portrait rights infringement.

　　Wu Yuhui told reporters that as long as it constitutes a work identified by the Copyright Law, it can be protected by the Copyright Law, and the right holder will naturally have the right to sue.

Therefore,

On the contrary, as a program produced by a public authority, "Tan Talks Traffic" has obvious public interest in terms of the production subject and program theme, and should not be considered a for-profit program.

Does it constitute an exemption for "reasonable use of portrait rights"?

　　In Zhou Jie's view, ""Tan Talks Traffic" is a for-profit program" can basically be equated with "the program has used the interviewees for profit".

　　Zhang Yan raised different opinions.

He believes that even if the view of "Tan Talks Traffic" "for profit" is true, it cannot be directly inferred that "the program has used the portrait rights of the interviewees for profit", and then "constitutes portrait rights infringement" conclusion.

　　"As the right holder of portrait works, whether Chengdu TV uses and publishes the interviewee's portrait 'with my consent' is another key factor in determining whether it constitutes a portrait right infringement." Zhang Yan said.

　　Focusing on this case, Zhang Yan said that whether the interviewee agreed to the use of his portrait in the "Tan Talks Traffic" program was controversial.

"In this program, police officer Tan, who is the host, is wearing a police uniform to question or interview the defendant, and there is a camera team next to him. It may be considered by the court that the interviewee has tacitly agreed to be interviewed by a traffic program, so he should not constitutes a violation of the interviewee's portrait rights."

　　At the same time, Zhang Yan reminded that it is also necessary to consider whether the "Tan Talks Traffic" program constitutes an exemption for "reasonable use of portrait rights".

In other words, under certain circumstances, the likeness of the likeness rights holder may be reasonably used or published without the consent of the likeness rights holder.

According to Article 1019 of the "Civil Code", without the consent of the person with the right to portrait, the likeness of the person with the right to be liked shall not be produced, used, or published, except as otherwise provided by law.

　　In addition, according to Article 1020 of the Civil Code, without the consent of the person with the right to portrait, the situations in which the right to use the likeness right can be reasonably used include: for the implementation of news reports, the portrait of the person with the right to likeness is inevitably produced, used, and published; To perform their duties in accordance with the law, state organs produce, use, and publish portraits of like-holders within the necessary scope; in order to safeguard public interests or the legitimate rights and interests of like-holders, other acts of making, using, and publicizing like-holders’ portraits, etc.

　　Chen Fu believes that, drawing on the provisions of the Copyright Law on the fair use of works, the Civil Code also creatively stipulates the situation of "fair use of portraits".

Although the "Civil Code" may not serve as the legal basis for the portrait rights cases related to "Tan Tan Traffic", in judicial practice, it will also consider whether the alleged infringement constitutes "reasonable use of portrait".

　　Zhou Jie mentioned that he did take into account the "reasonable use of portraits" created in the Civil Code in this case.

However, the "Tan Talks Traffic" program may not meet the "inevitable use of portrait rights" provisions in Article 1020 of the Civil Code.

"The plaintiff, as the interviewee who appeared on the screen, if the portrait is coded, it will not affect the dissemination of the content, but will affect the effect of the program more. I think that the principle of 'inevitability' cannot be expanded for ordinary people. Use." Zhou Jie said.

　　Li Weimin also believes that the portraits of the offenders and other relevant personnel interviewed in the program are the main content of the program that Chengdu TV, as the producer, added to the program without their consent. , Chengdu TV violated the portrait rights of these people.

What is the helplessness behind the 1 yuan claim?

　　"The cost of a lawsuit is much higher than a lawsuit claim", a situation that is not uncommon in portrait rights infringement cases.

A number of interviewed legal professionals believe that there are hardly any exceptions to the portrait rights cases related to "Tan Tan Traffic".

　　According to Chen Fu, according to past judicial practice, in cases of infringement of portrait rights, the reference factors for the amount of compensation include: degree of fault, specific circumstances, consequences of damage, and popularity of portrait rights holders.

"Generally, the amount of compensation is not high. In some cases, the portrait rights holder only asks for compensation of 1 yuan."

　　Li Weimin's analysis believes that the different situations of the interviewees in "Tan Talks Traffic" correspond to different click-through rates of the video programs. Some videos are widely disseminated on the Internet platform, while others have a mediocre response. Interviewers, in the same winning case, may receive different compensation amounts.

　　"It should also be noted that since the interviewee defending rights may only appear in one or a few episodes, and it is difficult to determine how much the defendant has benefited from it, even if the interviewee wins the case, the court is very likely to determine the amount of compensation at its discretion. And this amount of compensation may also be very low." Zhang Yan added.

　　According to Article 20 of the Tort Liability Law: Where property losses are caused by infringing on the personal rights and interests of others, compensation shall be made according to the losses suffered by the infringed; Compensation; it is difficult to determine the benefits obtained by the infringer, and if the infringed and the infringer disagree on the amount of compensation and file a lawsuit with the people's court, the people's court shall determine the amount of compensation based on the actual situation.

　　In the case in which Zhou Jie served as the plaintiff's lawyer, because the video containing the plaintiff's portrait was not as well-known as the videos of "Uncle Erxianqiao", "Balloon Brother", etc., considering the comprehensive consideration, the current compensation of RMB 1 is temporarily claimed.

　　"Getting evidence is a difficult point. If the court finds out through investigation that the defendant Chengdu TV station has made profits from the plaintiff's video, and the profit exceeds 1 yuan, we propose to retain the 'profit obtained by the defendant due to infringement' as the basis for the plaintiff's claim." Zhou Jie say.

　　Under the principle of "whoever advocates will give evidence" in civil litigation, there may be differences in the litigation status and the ability of the parties to provide evidence. Even if the court has the right to investigate and collect evidence from relevant units and individuals, the natural person plaintiff is often in a weak position.

Several people in the legal profession told Yicai that this is also reflected in cases of portrait rights infringement.

　　Chen Fu said that in the case of portrait rights related to "Tan Tan Traffic", the rights defender, as the plaintiff, bears the burden of proof for the claim that "the defendant infringes his portrait rights", and needs to provide evidence to prove that the defendant "uses profit-making interests". "for the purpose" of using his portrait; and the defendant will deny or refute the plaintiff's claim in the process of responding and defending. If the defendant claims that the program is a public welfare program, it needs to provide evidence to prove the claim.

　　Then, in the context of "high difficulty in proving proof and small amount of claims", why do portrait rights holders insist on filing a lawsuit?

If not for compensation, what are their main demands?

　　According to several interviewees, under normal circumstances, the main demands of portrait rights holders include: requiring the plaintiff to stop the infringement, delete the works with their portraits, and make a public apology.

"No one can profit from their own illegal behavior, this is the principle of the law." Zhou Jie added.

From this point of view, he appealed to image rights holders to safeguard their legitimate rights and interests in accordance with relevant laws and regulations.