XXII

1.If a film or TV still image basically reflects the performer ’s facial image or the frontal face image of the performer, and the character image presented does not exceed the category of natural person portraits,having clear directivity and recognizability, the performer has the right to claim his or her personal right of portrait in the still to prevent anyone from using the still for making profits without permission.This kind of still image is a complex of dual rights, including both copyright and the right of portrait of the actor.The portrait rights of the performers in the stills cannot be denied even though the copyright of the stills is attributed to a third party.

2.The name of a well-known artist is different from that of the general public because of its social popularity, stronger commercial value and economic benefits.The use of a well-known artist’s name for commercial purposes infringes upon the artist’s right of name in accordance with the law.

Case: Company W released 34 mini games on its website, and later the portal site of the game was acquired by Company B as a whole.There were 113 stills of a famous artist C in the game, and C’s name was used as the game name in six games.C believed that the game websites operated by Company W and Company B had released a large number of web games which used C’s portrait and name as core content without permission and had obtained substantive economic benefits by infringing on C’s right of portrait and name.Company W and Company B objected to this,arguing that the game involved in the case only used C’s film and television stills, which did not infringe on C’s rights.((2019) Jing 01 Min Zhong No.7105)

The court held that: The right of portrait is a kind of specific personality right enjoyed by a natural person to the personal interests reflected in his portrait.It is a civil right whose content is the spiritual and material interests embodied in the portrait.Without the authorization of the portrait right holder, others shall not use the portrait right holder’s portrait for profit.Although the performing artist’s images contained in the film and television series cannot be simply equivalent to portraits, the stills not only carry a certain lens and artistic image of the film and television series, but also carry the performer’s character image.Therefore, film and television drama stills are a complex of dual rights, including both copyright and portrait rights of the actors themselves.The right of portrait and copyright contained in stills are an aggregation, not an absorption.The right of portrait enjoyed by the performers cannot be denied even when the photos are stills.If the still ref lects the performer’s facial image or the frontal facial image, which makes the character highly identif iable, it could be regarded as the performer’s portrait.(https://www.daowen.com)

In this case, although most of the pictures that the case-related website used without authorization were film and television stills, they also were reproductions of the artist’s portrait.The figures they represented did not exceed the category of a natural person’s portrait.They still had clear directionality and recognizability.C has the right to claim her personal right of portrait in photos.The game involved in this case used C’s portrait image without authorization as a game element, infringing on C’s right of portrait.

The right of name refers to a civil right that citizens are entitled to decide, use and change their names independently and others are banned to interfere with, usurp and make false representation of personal names.The name of a well-known artist is different from that of the general public.Because of artists’ higher social popularity, their rights of name have higher commercial value and more economic benefits.In this case, the game website involved used the C’s name in 6 games without C’s permission.This method made use of the name of a well-known artist to promote the game, having a strong commercial purpose and infringing on C’s right of name.

In this case, the infringement process caused by the game involved is an ongoing status, starting with the release of the game and ending with the removal of the game.In this process, Company W and Company B were respectively responsible for the infringement which was caused during the release period and during the period after changing the operating entity.Therefore, the court determined that Company W and Company B committed joint infringement and ordered them to jointly compensate C for economic losses and reasonable expenses of more than RMB 520,000 yuan.