What to do when portrait rights conflict with copyrights
Photos of portraits should belong to copyright law Protected photography.
Photography works refer to the use of equipment to create photosensitive materials Or works of art that record the image of objective objects on other media. The establishment of a photographic work has nothing to do with the photographic object (people, objects, scenery), the purpose of photography (for artistic creation, advertising, publicity and reporting, etc.), and the photographic method. The key to judging whether a photo is a photographic work is to see whether the act of taking the photo itself is an original intellectual activity.
When taking personal portraits, the photographer can be original and independently create a photographic work due to his unique viewing angle, shooting timing, lighting methods, techniques, etc.
In this way, in the same portrait photography work, There are two rights: the portrait right of the photographed person and the copyright of the photographer. When the two rights holders exercise their respective rights, sometimes the copyright holder’s right to publish and the right to decide on the method of use and the portrait right holder’s right to portrait and privacy will arise. powerconflict. When two rights coexist and conflict, there should be legal rules to adjust the conflict, or determine the priority of one of the rights, or determine that the two rights can be exercised in parallel. Under the rules that determine the priority of one right, another right will be restricted.
In photography that records people’s portraits, It is generally believed that the protection of personal rights, such as portrait rights, is better than the protection of dual personal and property rights, such as copyrights. This is because the issue of the consent of the photographed person arises from the very beginning of the creation of portrait photography works. Portrait rights restrict whether copyright can be generated and whether it is legal. After a portrait photographic work is legally produced, how the copyright owner uses the portrait photographic work is still restricted by the subject's portrait right in many cases. The first thing the copyright owner faces is the protection of the subject's portrait right, that is, the copyright owner's right to the portrait work. The form of right to use is not as free and broad as the right to use copyright in the general sense. This is a special situation in copyright.
At the same time, because the work records the subject A citizen's portrait right is expressed as the absolute exclusivity of using his or her portrait or allowing others to use his or her portrait. How a citizen uses his portrait photographic works is an issue within the scope of his portrait right. His portrait right has covered and submerged copyright. Therefore, citizens’ use of photographic works containing their own portraits is dictated by their rights. Therefore, in the event of a conflict of rights, priority should be given to the protection of portrait rights.
The priority of portrait rights does not mean that the portrait The copyright holder can completely ignore the existence of copyright and use the photographic work at will. Once the copyright of a photographic work is legally established with the permission of the portrait right owner, the portrait right owner's exercise of the specific portrait rights contained in the photographic work has to be subject to certain restrictions from the copyright. That is to say, the portrait right holder cannot freely disseminate and distribute the photographic work to the public for profit on the pretext of preferential exercise of the portrait right. The creative labor of the photographer included in the photographic work should be protected.
Among the copyrights enjoyed by the photographer, the right of publication in his personal rights should be restricted by the portrait rights, privacy rights, and reputation rights of the portrait rights holder. The produced photos may not be published without the consent of the portrait rights holder. Portraits are publicly displayed, or plates are published, screened and broadcasted. However, the right of signature and property rights in the personal rights of copyright should not be restricted by the right of portrait. When the owner of the portrait right disseminates photographic works to the public for profit, the provisions of the Copyright Law should be followed , to protect the copyright holder’s right of authorship and right to receive remuneration.
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