Facts of the case? On December 19, 1999, the Tangzha Workers’ Cultural Palace in Nantong City, Jiangsu Province held a “solo concert by civilian singer Hu Mingde.” Senior photographer Huang Zhibin was entrusted by the director of the Cultural Palace to take photos at the scene, but there was no clear agreement on the copyright of the photographic works. On the 31st, "Nantong Daily" reported on Hu Mingde's deeds, and also distributed a set of photos submitted by Huang Zhibin that reflected Hu's artistic career. The theme photo was an image of Hu singing loudly at a concert taken by Huang Zhibin. In early January 2000, Nantong Baile Fishing Capital Management Co., Ltd. (hereinafter referred to as Baile Fishing Capital) decided to hold Hu Mingde's solo concert on the second anniversary of its opening. For publicity purposes, Hu Mingde was asked to provide some information. Hu Sui selected a few photos from the group of photos given to him by Nantong Daily as a souvenir and gave them to Baile Fishing Capital. One of them was the aforementioned "theme photo". Hu Mingde did not tell who the author of the photo was, and Baile Yudu did not ask. After that, in addition to using this photo for advertising at the entrance of the store, Baileyudu also commissioned the advertising department of an evening newspaper to produce a newspaper advertisement, which was published on the front page of the evening newspaper on January 13. The entire concert lasted for 6 days. The original photo was kept by Hu Mingde after the concert. After Huang Zhibin discovered the above-mentioned behavior of Baile Fishing City, he immediately filed a lawsuit with the Nantong Intermediate People's Court on the grounds that Baile Fishing City had infringed his photography copyright. ?Commentary?Legal issues that need to be resolved in this case: How to balance the conflict between the plaintiff's copyright and the portrait right of the photo provider Hu Mingde in this case? Will the plaintiff’s copyright be restricted by Hu Mingde’s Portrait rights? The main reason for the defendant's defense is that the defendant's use of the photographic works was approved by Mr. Hu Mingde, the owner of the portrait right. There is a problem of competition between the copyright and the portrait right. Since the right of portrait is a basic right of citizens and is inherent in the copyright, the right of portrait should be given priority. When Hu Mingde exercised his right of portrait, he was not restricted by copyright, so the defendant's behavior could not constitute infringement. It is true that although the defendant's use of the photographic works received the consent of the portrait owner Hu Mingde, this did not constitute fair use of the copyright. Although there is a lot of debate in the theoretical circles on the judgment rules of fair use, there is still a basic consensus on the specific circumstances that fair use generally includes. In summary, although non-profit is not the only criterion for fair use, as long as there is an obvious profit-making purpose, it is definitely no longer fair use. Fair use can only be constituted if Hu Mingde himself only makes "personal use" such as hanging and collecting for the purpose of appreciation and souvenir, or if he gives it to Baile Fishing Capital Collection for free. However, the concert held in Baile Fishing City is obviously a performance activity to supplement food and entertainment, with obvious profit-making overtones. When Hu Mingde provided Huang Zhibin's photography works, he should have been fully aware of their nature. Therefore, neither Hu Mingde’s act of providing photos to Baile Yudu nor Baile Yudu’s subsequent actual use did not meet the characteristics of fair use. The portrait rights enjoyed by Hu Mingde and the copyright enjoyed by Huang Zhibin are not competing rights because they have different rights.Content and scope of benefits. Hu Mingde's portrait rights are mainly reflected in the fact that as the person photographed in the photograph, he has the right to prohibit the exhibition of his portrait or the display of his portrait in other commercial ways. Huang Zhibin's creation of the photographic works involved in this case must obtain the consent of the portrait rights owner Hu Mingde. The consent can be in the form of a prior authorization letter or a subsequent ratification. Hu Mingde knew clearly that Huang Zhibin had taken and published photographs containing his portrait, but did not object until the copyright dispute occurred, which is enough to show Hu Mingde's permission and authorization. From this perspective, the portrait right, which is a complete personal right that is born with it, does precede the copyright, which has the dual nature of property rights and personal rights. However, once the copyright of a photographic work is legally established with the permission of a specific portrait right holder, the portrait right holder's exercise of the portrait rights included in the photographic work has to be restricted by the copyright. After the photographic works involved in this case were created with the consent of Hu Mingde, Hu Mingde and his authorized users could not use them for profit without the approval or consent of Huang Zhibin under the pretext of exercising the right of portrait. Therefore, the theory that portrait rights are not restricted by copyright when they compete with copyright cannot be established at all. Of course, if the copyright owner uses the photograph for profit, he must obtain the consent of the portrait right owner in advance, even if he is exercising his copyright. Therefore, the use of a dual-rights-attached carrier such as portrait photography must obtain the permission of each rights holder, otherwise there is a risk of infringement.
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Can the effect of use of portrait rights extend to copyright?
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