Analysis of Portrait and Portrait Right Article 111 of the General Principles of the Civil Law states, "Citizens shall enjoy the right to portrait, and shall not use their portraits for profit without their consent." However, there is the concept of portrait right in Chinese law, but the connotation and extension of portrait right are not accurately defined in the form of law, and its legal meaning has not been explained or stipulated authoritatively. What is a portrait? According to Ci Hai or experts' opinions, for example, Professor Yang Lixin of China Renmin University (doctoral tutor, one of the drafters of the personal tort part of China's civil code), portraits are "similar, like" and "like" are compared with the images made by characters. In layman's terms, it is "an image similar to a character made by comparing it with a character" [1]; It refers to the visual image that makes the appearance of citizens reappear on the material carrier through painting, photography, sculpture, video, film, television and other artistic forms. Portrait right is the concrete personality right of citizens. What is the right to portrait? Portrait right is a citizen's personality right with the interests embodied in his own portrait as its content. Compared with other personality rights, the object of portrait right itself has certain property interest factors, that is, it can produce economic benefits because of its use. There are spiritual interests and property interests in the personality interests of portraits, especially the property interests are obvious. Generally speaking, a person is beautiful and has beautiful value, and an ugly person has ugly value, but the average person who is not ugly or handsome is rarely invited to advertise, which involves the aesthetic value of portraits. Right, Latin for "jus", refers to both right and law, and contains the meaning of fairness and justice [2]. Rights, also known as legal rights, are the permission and guarantee for the state to do or not do some behavior to the subject of legal relationship and ask others to do or not do some behavior through legal provisions [3]. Divided into political rights, economic rights, social rights, etc., civil rights are divided into property rights (divided into property rights and intellectual property rights) and personal rights according to whether there is property content or not. Personal rights refer to civil rights that are inseparable from themselves and cannot be transferred without direct property content [4]. Personal rights can be divided into identity rights (based on a specific identity, such as spouse rights, parental rights, guardianship, etc.) and personality rights according to whether the object is personal interests or identity relations. Personality right refers to the right that a civil subject needs to maintain an independent personality, with personality interests as the object. Personality interests refer to the sum of the interests that a civil subject enjoys in terms of personal freedom and personal dignity, life, health, name, reputation, privacy and portrait [5]. Portrait right belongs to one of personality rights. Portrait right is the personality identification of natural persons, which reflects the appearance attributes of natural persons. Its basic contents include three items: first, the exclusive right to make portraits at any time in any form, and the right to prohibit others from illegally making their own portraits; Second, the right to use exclusive rights, the right to prohibit others from illegally using their own portraits, here also includes the right to transfer the right to use portraits; The third is the right to safeguard interests, and everyone except the obligee has the obligation not to infringe. On the concept of portrait right, we should pay attention to the following points: 1. Legal persons have no portrait right, because portraits reflect the appearance attributes of natural persons, although there is a description of legal persons in language, such as "the glorious image of organs"; 2. Portrait in the right of portrait lies in "image", which only refers to the image of face, facial features and "face". This is not accurate. Portrait can not only refer to "facial features" and "face", but also refer to the reappearance of natural person's appearance image on the material carrier. Of course, it mainly refers to people's facial image, but it can not only be understood as "face" or "facial features". When the image carried by a photograph is enough to determine why the image of a person is reproduced, it should be determined that the portrait is the portrait of the person. Of course, if we can't judge whose portrait it is, of course, we can't determine whose portrait has been infringed. At the first roving exhibition of human photography art held in Hainan Province, a photo of a female model was printed on the tickets. This photo was a portrait of the model with the title of "Beauty". The ticket was used to cut off the upper lip of this photo character, which led to a lawsuit. The focus of the dispute is whether it constitutes unauthorized use of this "faceless" photo. 3, text description, does not belong to the reproduction of portraits, such as so-and-so, pointed mouth and monkey's face, a nose that is blocked all the year round, stinks, and a pair of beetle eyes flash annoying eyes. This needs to be re-processed by the brain, which does not belong to the category of portrait right. If there is any infringement, it can be solved by using the right of reputation infringement. 4. Buildings have no right to portrait, but according to the new Copyright Law, there are works, which are a kind of works. 5. The copyright closely related to the portrait right has two rights, the portrait right is the basic right and the copyright is the derivative right. Second, the composition of the infringement of portrait rights and the exercise of portrait rights. On the confirmation of the infringement of portrait rights, according to Article 111 of the General Principles of the Civil Law, "You shall not use a citizen's portrait for the purpose of making profits without my consent", there are only two constitutive elements. The first condition is sometimes too broad in practice, and it seems that at any time, it is necessary to obtain my consent, adding one without "blocking illegal reasons". With regard to "blocking the illegal cause", it means that although an act that is prohibited by law in principle has been implemented, it has a cause that is not illegal as specifically stipulated by law, thus making the implemented act legal and thus blocking the illegality. It mainly includes: ① public welfare: in order to maintain social needs, such as advanced task photo exhibition, uncivilized behavior shooting and publishing criticism, wanted fugitives; ② My interests: publishing searching for you; (3) news: news reports, the right to portrait is submerged in the assembly, queue and ceremony, and it is not allowed to claim the right to portrait. Similarly, individuals in collective photos are not allowed to claim the right to portrait; (4) in order to record specific public activities, using the portrait of the participant, participation is equal to the commitment that the portrait right will be used. On the contrary, the element of "for profit" is sometimes too narrow to protect the legitimate rights and interests of citizens. For example, some people illegally use other people's portraits (for example, deliberately use wide-angle lenses to put their "fangs" in their mouths with wild boar statues), not for profit, but also for infringement. Therefore, the restriction of "except for insulting portraits" can be added. Summarize the practical elements of the infringement of portrait right: without my consent, for the purpose of making profits (except insulting use), without "blocking illegal reasons" Third, the civil liability for the loss of infringement of portrait rights includes stopping the infringement, eliminating the influence, apologizing and compensating for the losses. The loss of infringement of portrait right is generally spiritual compensation, and the judge has a strong will. Regarding how to determine the standard of compensation for mental damage, Article 11 of the Interpretation of the Supreme Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Tort "The amount of compensation for mental damage is determined according to the following factors: (1) the degree of fault of the infringer, except as otherwise provided by law; (2) Specific circumstances such as the means, occasion and behavior of infringement; (3) Consequences caused by the infringement; (4) The profit of the infringer; (five) the economic ability of the infringer to bear the responsibility; (six) the average living standard of the place where the court is located. If there are clear provisions in laws and administrative regulations on disability compensation and death compensation, the provisions of laws and administrative regulations shall apply. " Mainly by the judge through the above factors to discretionary, at the same time, should be treated differently and the principle of appropriate restrictions. Different regions, different parties, different spheres of influence, and different nature of cases make it difficult to apply a standard. I think we can grasp the compensation standard from three aspects: (1) the role of punishment for the offender; (two) to comfort the victims; (3) It has an educational effect on society. The amount of compensation that meets the above three requirements is correct. Each region can set appropriate limits according to the local economic situation and per capita income level, but in principle, the amount of compensation for mental damage should not be fixed, and it should be at the discretion of judges. Example 1: Watson's body search: A 19-year-old female college student in Shanghai sued angrily after being searched in a supermarket of Watson's Commodity Co., Ltd. in Shanghai. The Hongkou District People's Court of Shanghai recently ruled that the defendant should make an apology to the plaintiff Qian Yuan in the newspaper within 11 days, and compensate 251,111 yuan for mental loss and other expenses. On July 8, 2111, when the plaintiff Qian Yuan left Watson's Sichuan North Road Store, the door alarm suddenly sounded. Despite the plaintiff's objection, the defendant forcibly brought him into the office for undressing inspection, and found nothing. The plaintiff strongly protested and demanded an apology and compensation from the defendant, but the defendant did not agree. The plaintiff then sued the court, demanding that the defendant apologize and compensate the mental loss and other expenses of 511,111 yuan. The first-instance judgment compensated the mental loss of 251,111 yuan. "Watsons" appealed that consumers did not produce evidence that they were forced to take off their pants, so the infringement facts could not be identified. Regrettably, however, in the absence of sufficient and valid evidence, the court of second instance blurred the details of "whether it was forced to take off pants", and actually supported part of Watson's claim and sentenced it to 11,111 yuan. This also shows the scope of the judge's discretion. Example 2: People and dogs eat together: In the embassy and consulate area of Shanghai Concession, after the Opium War, the Qing government was corrupt and incompetent, and there was a sign in this area that "Chinese and dogs are not allowed to enter". It was reported that the court of Jintai District, Baoji City, Shaanxi Province ruled that "people and dogs eat together" and the plaintiff lost the case. The case is: at noon on August 1, 1999, Wang and his wife went to Xiangyang Pavilion Hotel, which belongs to Baoji Xiangyang Catering Co., Ltd.. During the meal, two women with Beijing Ba dogs were feeding the dogs with the food bought by the restaurant on the table, using the common tableware of the restaurant. Wang believed that his personal dignity had been violated, so he sued the Consumer Protection Law and demanded that the restaurant compensate 25,111 yuan. Article 14 of the Consumer Law stipulates that "consumers have the right to respect their personal dignity and national customs and habits when purchasing and using goods and receiving services". In the case of "people and dogs have meals together", what is involved is the spiritual compensation for personal dignity. Regrettably, the court dismissed the plaintiff's lawsuit because the restaurant did not deliberately. Carina Lau and Shantou Alice Cosmetics Shantou Alice Industrial Company printed its portrait on the packaging bag of cosmetics without the consent of Hong Kong movie star Carina Lau. After obtaining evidence in Shanghai, Carina Lau sued Alice Company in Shanghai, demanding to stop the infringement, compensate for an apology and compensate for the loss of 1 million. Mediation closed, compensation of one million, I heard that most of them were given to Project Hope. Strictly speaking, in photography activities, as long as there is one of the following circumstances, it can be regarded as infringing on the portrait rights of others. 1. The act of using a portrait without the consent of the owner of the portrait, without obstructing the illegal reasons. The act of using a portrait without the consent of the portrait owner is also called "improper use of another person's portrait". The legal provisions on the right of portrait in China's civil law are basically aimed at the "improper use" of portraits. This improper use can be divided into "for profit" and "for non-profit" illegal use. We can't think that as long as it is not for profit, or with the consent of the portrait owner, we can use the portrait of a citizen at will without profit. This understanding is one-sided. Article 111 of China's General Principles of Civil Law stipulates: "Citizens have the right to portrait, and they may not use their portraits for profit without their consent." The Supreme People's Court's "On the implementation of <; General Principles of the People's Republic of China and the Civil Law > Article 139 of Opinions on Several Issues (Trial) limits this kind of infringement to: "for the purpose of making profits, using the portrait of a citizen to advertise, trademark, decorate the window, etc. without the consent of the citizen". Article 121 stipulates: "If a citizen's right to name, portrait and reputation is harmed, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology and claim compensation for the losses." Among the non-profit-making use of other people's portraits without my consent, only the act that has the reason to block the violation is legal. Such as news reports, "wanted orders" issued by public security organs to arrest criminal suspects, and so on. The right to portrait, like the right to name, has exclusive rights. The possession, use and disposal of one's portrait can only be owned by the citizen himself, and no one else can enjoy it without his consent. The act of infringing on the right of portrait is not to use the portrait of a citizen for profit, but to disrespect the exclusive right of citizens to his portrait. Therefore, no matter for what purpose, the reproduction, dissemination, exhibition, etc. of citizens' portraits should be approved by citizens, otherwise it will constitute an infringement of the right to portraits. 2. Making portraits of others without authorization (including having photos of others). The act of creating and occupying portraits (photos) of others without my consent. For photographers, it is the act of taking pictures of others. Portrait is the external expression of citizen's "personality", and only I have the right to decide whether to reproduce my own image. Whether the portrait works are made (filmed) for public publication or possession does not affect the composition of the infringement of portrait rights. That is to say, although it is not used publicly, it also constitutes infringement, such as the photo studio printing customers' photos privately for preservation. Third, maliciously insult and deface other people's portraits. That is, the wrongdoer maliciously insults, vilifies, defiles or damages the portrait of others or destroys the integrity of the portrait of others. Including altering, distorting, burning, tearing or hanging upside down other people's photos, such behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation. To sum up, in photography practice, there are three situations that often constitute infringement of portrait rights: In recent years, there seems to be more and more reports of so-called infringement of "portrait rights". Why? I think there are many reasons, but there may be three in the final analysis: first, photographers don't understand the law; Second, photographers intentionally infringe on people's portrait rights with the intention of "profiting"; Third, the photographer does not understand the legal significance of the right to portrait, and as long as he sees his portrait in the newspaper, he will sue for compensation. 1, "for the purpose of making profits" must meet two conditions at the same time: first, use the portrait of others without my consent; Second, the profit-making behavior infringes on the portrait rights of others, that is, users subjectively hope to obtain economic benefits by using other people's portraits. However, the so-called "profit-making" is not what we usually understand. As long as there is subjective intention and objective profit-making behavior, it constitutes a "profit-making" fact regardless of whether the actor realizes the profit-making purpose. 2. Anyone who infringes on another person's portrait rights (reputation rights and honor rights) in any form shall also bear legal responsibilities: that is, the infringed person has the right to ask the infringer to stop the infringement, restore his reputation, eliminate the influence, apologize and compensate for the losses. Visible, without the permission of the portrait right holder, not for the purpose of profit, if it causes actual damage to the portrait right holder, such as mental damage to the portrait right holder, the user also constitutes tort (portrait right) responsibility. In judicial practice, there are also many cases of defacing, uglifying and distorting citizens' portraits for the purpose of not making profits. The above can clearly show that whether it is for profit is not the only prerequisite and element to decide whether there is an infringement of citizens' portrait rights.