XXI

In a trial of cases about infringing the right of portrait, if the parties are unable to prove their economic losses or the illegal gains of the infringer, the people’s court will determine the amount of economic losses that the infringer shall compensate according to ways of infringement,and the time, scope, popularity of the actor as well as reasonable cost of seeking rights protection.

Case: Since 2016, Technology Company X has published a batch of articles and videos containing the portrait and name of a well-known artist L on its WeChat public account, Weibo, website, APP and several third-party platforms, the main content of which is about “cosmetic failure”.L believes that Company X’s actions infringed a series of civil rights and filed a lawsuit in the court.((2019) Jing 03 Min Zhong No.7758)

The court held that: Citizens enjoy the right of portrait.Therefore,anyone who does not obtain permission cannot use citizens’ portrait for the portraits of making profits.According to the case facts, Technology Company X published a large number of articles and videos containing L’s portrait and name on its WeChat public account, website, APP, Weibo and third-party websites.All of the above-mentioned publishing media carry commercial value.Technology Company X used L’s portrait without L’s consent, which constituted an infringement of L’s right of portrait.(https://www.daowen.com)

Technology Company X used L’s portrait and name to publish many infringing articles and videos without authorization, which affected L’s image to a certain extent, and had a passive impact on L’s social appraisal.Therefore, the behavior of Technology Company X also infringed on L’s right of reputation.L’s reasonable expenses generated during the process of defending her rights shall also be defined as her economic losses.The court determined the amount of compensation that Technology Company X shall pay is RMB 250,000 yuan based on the time, scope, ways of infringement, the reputation of L and case-related evidence.

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