Introduction to the Case

    The plaintiff, an artist, claimed that he found that the home furnishing company used his portrait and name in the physical store, WeChat commodity number, jittery account and related product exhibition and sale, displaying and selling brand furniture operated by the home furnishing company, and labeled with the text of “a certain artist to take over to help a certain national overall home furnishing chain brand”, which infringed on his right to name, portrait right and right to reputation. The right to reputation.

    The company argued that the publicity was based on the purchase of photos of an artist's crew from an outsider, and that it had paid the outsider a fee for the use of the photos. The company did not have the intention or subjective malice to infringe, and did not profit from the use of the artist's portrait, which was used for a relatively short period of time and did not cause any loss or impact to the artist.

Court Trial 

    The court found that an artiste did not authorize the outsider to use or sell her cast photos or any products related to her portrait rights, and did not have any cooperative relationship with the outsider company. During the litigation, the defendant home company will involve an artist's portrait and the use of the name to be deleted, stop, an artist to confirm.

   The court held that, in this case, the home furnishing company used an artist cast photo for product promotion, but did not provide evidence to prove the original rights of the photo source, its name and portrait of the photo in the case of the use of the name, lack of legal authorization, belong to the use of the right to use, infringed on the right of an artist to enjoy the right of the name and the right of the portrait according to law. However, an artist's personal image has not been distorted, insulted or otherwise adversely affected by the company's behavior, so its behavior does not constitute an infringement of the artist's right to reputation.

    An artist demanded home furnishing company to apologize for the litigation request, in accordance with the law, the court shall support, apologize for the way of infringement should be the specific way, the scope of the infringement is comparable. Regarding the economic loss claimed by an artist, the court held that, as a high-profile star with high reputation, his portrait and name have high commercial value; the economic loss should be based on the market price of his portrait and the infringer's possible profit, and at the same time, combined with the length of the infringement, the home furnishings company did not take measures to prevent the further expansion of the loss of the circumstances, such as the circumstances of the lawyer's letter issued by the artist to be judged by comprehensive consideration. The court made the above judgment. The court finally made the above judgment.

    After the judgment was pronounced, both parties did not appeal, and the judgment is now effective.

What the Judges Say

    Article 995 of the Civil Code stipulates the civil liability for infringement of personality rights, and the infringed person has the right to request the infringer to stop the infringement, remove obstruction, eliminate the danger, eliminate the influence, restore the reputation, and apologize, and the above requests are not subject to the limitation of the statute of limitations. Article 1000 stipulates that an infringer's civil liability shall be commensurate with the specific manner of his or her conduct and the scope of the impact caused.

    The use of another person's portrait or name for commercial or profit-making purposes without the authorization or permission of the other person is considered to be damaging to the other person's portrait right or name right, and the infringer shall make an apology to the infringed person and pay compensation for the economic loss. Apologize for the infringement of the specific way, the scope of the infringement should be comparable; the amount of compensation for economic loss should be combined with the type of rights, infringement, the impact of the scope of profits, the infringer and the infringer's occupation, the infringer's financial situation, the degree of fault and so on to be considered comprehensively. As a well-known artist as a well-known performance star, public figure, in the enjoyment of social attention to its many conveniences, should be in the process of the exercise of specific rights for the public interest to transfer part of the right to understand and support the media on the reasonable use of its personality rights, but the right to equal protection of the right of personality of the right of the law is due; in the right of personality suffered damages, the court shall consider the right of personality of the right of personal and property. In the event of damage to their personality rights, the court shall take into account the dual attributes of personal rights and property rights, and provide relief for the damage.

    Regarding the amount of compensation for damages, if the infringement of personal rights and interests of others results in property losses, compensation shall be made in accordance with the losses suffered by the infringer or the benefits gained by the infringer; if the losses suffered by the infringer or the benefits gained by the infringer are difficult to be determined, and the infringer and the infringer fail to reach an agreement on the amount of compensation, and the people's court is asked to determine the amount of compensation in accordance with the actual situation. In this case, taking into account the artist is a star, and home furnishing company is a celebrity endorsement of its products to promote publicity. Celebrity brand product advertising endorsement, usually higher than simply licensing the use of the name, portrait of the market price, the enterprise to brand endorsement of the use of celebrity portrait than simply with the use of celebrity portrait of the profit more. An artist submitted to the court the evidence of the outsider's prepaid advertising and endorsement fee, the price corresponds to the market area is not the field of home furnishing, but to a certain extent, it can reflect an artist in the brand endorsement of the market price, so the court's determination of the loss will be based on the market price of the license to use the likeness of an artist and the infringer may be profitably, at the same time, the combination of infringement of the length of time, the artist to issue a At the same time, the court's determination of damages will be based on the market price of the artist's portrait license and the possible profit of the infringer.

     This article is reprinted from the WeChat public number “Beijing Haidian Court”, with thanks!