Will using celebrity emojis also infringe?

  [Q&A Civil Code · Statement by Case]

  ●Keywords

  Personality rights

  ●Overview

  In the Internet age, the number of cases of infringement of portrait rights using information networks is rapidly increasing.

The rapidly changing network technology makes portraits more accessible, more convenient to use, and faster to spread.

In the network environment, most of the right holders of portrait rights disputes belong to social public figures. Recognizable portraits can bring attractiveness and facilitate the gathering of clicks and attention from massive information, thereby attracting traffic, generating value, and obtaining economic benefits. It also gave birth to the problem of portrait rights infringement.

  ●Case

  Hu opened an account on a social platform in 2010 and has accumulated a lot of popularity.

In 2015, Company A commissioned Hu to compile and publish a soft article introducing the company’s products.

After Hu had compiled it, he posted the article on his social platform, and used a celebrity's emoticon pack.

  In 2016, the star sued Hu and Company A to the court on the grounds of infringement of portrait rights, requesting an apology for the two defendants, compensation of 150,000 yuan for economic losses, 10,000 yuan for mental damage, and 3,000 yuan for rights protection costs.

  During the trial, Hu and Company A argued that they did use the plaintiff’s emoticon pack, but the emoticon pack came from an online search. Since the plaintiff allowed his emoticon pack to be widely circulated in the online world, he should be deemed to have given up The portrait right of the emoji.

  After the trial, the court found that Hu and Company A’s use of the plaintiff’s emoji infringed the plaintiff’s portrait rights, and ruled that the two defendants apologized to the plaintiff in writing and compensated for economic losses and rights maintenance costs.

  ●Law

  Natural persons have the right to portrait and have the right to make, use, publish or permit others to use their own portraits in accordance with the law.

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

(Article 1018)

  No organization or individual may infringe on the portrait rights of others by demonizing, defaceting, or using information technology to forge.

Without the consent of the right holder, the portrait of the right holder may not be produced, used, or published, unless otherwise provided by law.

Without the consent of the right holder of the portrait, the right holder of the portrait work shall not use or make public the portrait of the right holder in such methods as publication, reproduction, distribution, rental, exhibition, etc.

(Article 1019)

  ●Experts

  Liu Xing (Judge of Beijing Internet Court)

  Use celebrity emoticons, must respect the right of portrait

  In the network environment, celebrity emoticons are widely used in scenarios such as WeChat, Weibo, and various online forums.

Some Internet users believe that the use of celebrity emoticons is commonplace and does not constitute infringement. This concept is worthy of vigilance.

  The portrait right is the basic content of the personality right of a natural person, which contains the spiritual and property interests of the portrait right holder. Therefore, the state protects it in the form of law.

According to the Civil Code, natural persons have the right of portrait. Without the consent of the right holder, the portrait of the right holder may not be produced, used, or published, unless otherwise provided by law.

  In this case, Hu, without the permission of the right holder, used the right holder's emoticon as a picture of the soft text, and publicly posted it on his social platform. The purpose was to use the celebrity portrait to attract public attention and improve the marketing effect of the soft text. , The behavior has violated the portrait rights of others.

  Currently on the Internet, unauthorized use of celebrity portraits for profit is not uncommon. In addition to adverts, infringements include the use of portraits of public figures in the name of "the same type of celebrity" to promote products and promote celebrity portraits and brands. The combination results in false endorsement effects and other situations.

Moreover, with the diversification of the social public's psychological needs, infringers have also widely used portrait carriers such as photos, stills, and variety show clips.

  In judicial practice, there are still quite a few infringements in the network environment in the form of emoticons or spoofs. The main purpose of users is to gain attention and rub hotspots, and their behavior itself is not profitable.

Compared with the General Principles of Civil Law, the Civil Code no longer regards “for profit” as a constituent element of infringement of portrait rights. Whether profit is for profit only needs to be considered when determining the liability for the infringer’s degree of subjective fault.

This legislative change is consistent with the actual situation of current portrait rights protection, provides more comprehensive protection for portrait rights holders, and reflects the spirit of advancing with the times in the Civil Code.

  So is it true that all acts of making, using, and disclosing the portrait of the right holder without the consent of the right holder constitute infringement?

Regarding this issue, the Civil Code, based on the legislative experience of the copyright law’s fair use system, creatively stipulates that the reasonable implementation of five types of portraits does not constitute infringement, and realizes the conflict between the exercise of portrait rights and the social public interest and the legitimate interests of others. coordination.

For Internet users, if it is for personal learning, art appreciation, classroom teaching, or scientific research, the use of the portrait that has been made public by the owner of the portrait rights within the necessary scope is a reasonable implementation of portraits in accordance with the provisions of the Civil Code and does not constitute infringement.

  The Internet is not a place outside the law. For use behaviors that do not meet the conditions for reasonable implementation of portraits, the owner of portrait rights has the right to pursue the legal responsibility of the actors.

In this regard, the public should establish a legal awareness of respecting the rights of others’ portraits, and fully realize that the production, use, and publicity of portraits of others without permission, especially portraits of public figures, may bear the legal risk of infringement of portrait rights.

When using other people’s released celebrity expression packs in daily life, it is not advisable to modify or spoof at will. When using celebrity portraits within the necessary scope, there should be no insults and defamatory remarks, let alone profit without permission Use celebrity portraits for the purpose to avoid negative consequences due to infringement of portrait rights.

  (Interviewed by our reporter Jin Hao)