"Art creation" is not a reason for street photography infringement exemption
Some street photography creators have problems such as excessive marketing and focus on body sales anxiety.
□ Our reporter Han Dandong
□ Intern Yang Huijia
"I obviously didn't dress up today, why did they come to shoot me?"
Yu is a junior at a university in Beijing and a part-time clothing model.
She likes to pay attention to fashion information and is willing to try a variety of styles.
On weekdays, when she walks on the street, there will be occasional street shooting bloggers requesting cooperation in shooting. She thinks this is a recognition of her outfit and fashion sense, and she is generally willing to cooperate.
But on this day, she didn't dress up specially, just wore ordinary shirts and trousers and hurried on the way, but still entered the lens of strangers, which made her feel a little offended.
In recent years, with the continuous development of social media and short video software, street photography has become a creative form favored by many photography enthusiasts.
Some of these street shots are based on sharing outfits and fashion information, but there are actually acts of shooting passersby for the purpose of attracting traffic.
Therefore, there are more and more discussions about short video street shooting infringing on the privacy and portrait rights of the viewers.
Street shot creation is in the ascendant
Some works deviate from the original intention
It is understood that street photography itself is a form of artistic display, usually used to record the cultural environment of some cities.
With the rise of short video platforms, street photography has gradually become popular and commercialized.
Many street video bloggers use the banners of "fashion" and "art", but they actually want to attract traffic through labels such as "beautiful" and "sexy".
According to a survey conducted by a reporter from the Rule of Law Daily, street photography creators mostly use "net celebrity commercial streets" frequented by young people such as Sanlitun in Beijing, Hubin Yintai in Hangzhou, Zhejiang, and Taikoo Li in Chengdu, Sichuan.
As soon as you walk into these commercial streets, you will find many street photography creators holding "long guns and short cannons". They will squat to take some fashionable passers-by, and then sell these photos to Internet big V, and finally through the short video platform Publish in the form of pictures or videos.
Bill Cunningham, the originator of street photography, once said, "The best fashion is always found on the street."
However, the reporter observed that many "net celebrity street shots" had deviated from this original intention.
Compared with fashionable outfits, they pay more attention to the appearance and figure of the subject.
In order to attract traffic, some bloggers also write scripts, add heavy filters, and add copywriting with a strong sense of marketing.
In the interview, a woman who had been “photographed” on the street talked about her feelings after seeing her street photos: “I can’t be seen from the back at all. My height is only 1.6 meters, but it seems that there is something in the photo. Miqi. The legs are stretched very long and the color of the hair has changed. The overall feeling is very unreal."
The squatting process of street photography creators also caused a lot of trouble to passers-by: on the one hand, it would disturb the normal order of the road, and on the other hand, it would create a kind of "fashion anxiety".
Yu told reporters: “When I spot a person filming me, I will find a bunch of cameras around me. It’s too late to escape, so I can only bite the bullet and hurried over.” Some passers-by also reported that there were crowds of street shots. The creator affected the order of normal roads.
Some young people told reporters that if they dress up and go out, passing by these places but not being photographed, they will feel a little unbalanced.
According to the reporter's understanding, in order to protect consumers' portrait rights, Chengdu Taikoo Li issued a "ban on photography" in 2019 to prohibit commercial use of street photography, but there are still many street photography creators quietly raising their cameras to shoot.
In addition to street-shooting videos on the Internet, some "art works" that enter the exhibition hall also have problems-under the banner of art, they actually infringe on the rights of others.
Not long ago, OCAT Shanghai Pavilion exhibited the work "School Flowers". The author Song Tuo secretly recorded nearly 5,000 female college students with a video recorder, and marked them with a digital ranking according to the so-called beauty to ugliness, and played them on the Internet. Hot discussion.
After re-examining the work, OCAT Shanghai Pavilion finally decided to withdraw it from the exhibition and closed the museum for adjustment.
Unscrupulous for traffic
Act may constitute infringement
In addition to some street photography creators who use street photography as a gimmick and have problems with excessive marketing, body focus, and sales anxiety, street photography may also have the problem of infringing on the rights of the subject.
The Civil Code formally implemented on January 1 this year clearly stipulates the use of citizens' portrait rights and the protection of their privacy rights.
It stipulates that 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, except as 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 by publishing, copying, distributing, renting, exhibiting, etc.
The Civil Code clearly states that natural persons have the right to privacy.
No organization or individual may infringe the privacy rights of others by spying, harassing, divulging, disclosing, etc.
Privacy is the tranquility of a natural person's private life and the private space, private activities, and private information that are unwilling to be known to others.
Regarding the "boundary" between art and creation, photography enthusiast Xiao Meng has such a question: "If my street photography works are not for commercial use, but only personal photography works, will it involve infringement?"
In this regard, Wu Xumeng, a lawyer at Guizhou Xinrui Linyang Law Firm, believes that whether a work is commercially available cannot be a basis for judging whether it is infringing.
Judging whether it is infringement should be based on whether the creator had malicious or improper purpose when creating, and whether it infringed the legitimate rights and interests of the photographed objectively.
If the work has constituted infringement or violated the public ethical order and violated the core socialist values, in addition to the need to be removed, the creator of the work also needs to bear civil tort liability, including an apology, compensation for losses, and elimination of the impact.
If it involves the illegal sale of citizens’ personal information or contains obscene content, it may also involve criminal offences.
Zhu Wei, deputy director of the Communication Law Research Center of China University of Political Science and Law, said that the legal points involved in street shooting are very complicated.
For the person who is photographed, if they believe that they have been infringed, they can claim their rights, and they can also not claim their rights when they approve the release of the photos. Not claiming rights does not mean waiving their rights, but a special form of exercising their rights. .
Zhu Wei believes that for street photography creators, it is necessary to seek the consent of the subject in advance.
If you publish, exhibit, or even use street shot video materials as a profit-making method without consent, you may infringe on the person's right of personality.
Some street photography creators use lower camera positions to capture special parts of women, which may constitute sexual harassment.
Some interactive street-shooting videos that are carried out without the permission of the person being photographed will not only infringe on the person’s right to portrait, but also their right to peace.
If the person being photographed has clearly refused to enter the lens during the shooting, the street-shooting creator continues to use language to coerce or ridicule others. In severe cases, it may constitute the crime of picking and provoking trouble.
The authenticity of street shots is hard to distinguish
Platform responsibility cannot be ignored
Since many "net celebrities" now use street photography as a means of attracting fans, many street photography videos are "premeditated", so it is very difficult to review the platform beforehand, and it is necessary to perform "notification-delete" through subsequent major platforms. Rules to maintain.
Zhu Wei explained to reporters that this type of video is a product of UGC (User Generated Content), and many street shots may actually be shots with scripts.
It is very difficult for the platform to distinguish whether the content is infringing or not before the content is released.
However, for the content published on the platform, the platform has the responsibility of "notify-delete", that is, when the right owner believes that the work involved in the network service infringes his own information network dissemination right, he can submit a written notice containing specific content to the network service provider. Request to delete the work or disconnect the link to the work.
At the same time, when the exhibition organizer adopts a work, it should require the author to provide a statement of rights related to the work. If problems such as infringement are encountered, the exhibitor and creator need to fulfill their obligation to remove the corresponding work from the shelves.
Regarding platform audit management, Wu Xumeng suggested that relevant departments should strictly manage platform developers, and impose penalties on obvious and major faults in accordance with regulations; promote the rule of law in peacetime and strengthen the legal awareness of platform companies; network supervision departments can target This phenomenon gives the platform special permissions to withdraw related content.
If he encounters a situation where his photos are posted to the Internet without permission, Wu Xumeng believes that rights protection should be carried out in the following steps: First, the evidence must be fixed, which can be fixed by recording the video or seeking the help of a notary office.
Second, you can take the initiative to request the platform or creator to remove the content.
If the other party does not cooperate, you can choose to file a complaint or file a lawsuit in the court, requesting it to immediately stop the infringement and compensate for the loss.
Wu Xumeng reminded that when encountering street photography on the street, the subject has the right to censor the content taken by the photographer.
When the person being photographed has no doubts about the content being photographed, he may not claim his rights.
When the content of the filming has a negative impact on the person being filmed and infringes on personal privacy, the person being filmed has the right to request the filming person to delete it immediately. If the other party does not cooperate, he can request the public security organ to deal with it if necessary.
If the opponent tries to escape, he can be blocked under the premise of ensuring his own safety.
However, if you are alone, in order to protect your personal safety, it is recommended to take pictures of the appearance so that you can report the case and defend your rights later.