Adjudicating Disputes And Improving The System Of Portraiture Right

The portrait is a visual image that a particular natural person can recognize on a certain carrier through painting,video,and the like.With the development of economy and society,the recognizable imitations,comics,stills of actors,sketches and sculpture,etc.can be protected by analogy of the portrait,which has helped to realize the expansion of the scope of the portrait.The right of portrait is the specific right of personality enjoyed by the natural person with the portrait as the object and the personal interests embodied in the portrait as the protection purpose.The subject of the right of portrait is the natural person,and the object of the right of portrait is the portrait,which is a personality element.The powers of the right of portrait include the right to make portraits,the right to use portraits,and the right to protect interests in portraits.The right of portrait has the functions of maintaining human dignity,showing freedom of will,and safeguarding the interests of the portrait.To analyze and perfect the system of the right of portrait is inseparable from the investigation of judicial practice in China.The judgments of disputes over portraiture right of our country can be divided into eleven types according to the focus of the disputes.Through the analysis of judgments,it is found that the judgments of disputes over portraiture right not only settles disputes,but also contributes to the collective wisdom of practice for solving the problem of the theory of portraiture right.Some collective wisdom can be refined into specific rules with a view to improving the system of portraiture right in our country.In the judgments of disputes over portraiture right,judges have controversies in understanding of the basis of the protection of the deceased’s portrait,the judgment criteria of the identifiability of the portrait.These controversies can be summarized as the protection of the deceased portrait,the standard of the portrait,the conflict between portraiture right and other rights,the rational use of portraiture right,the commercial use of the portrait,and the protection of portraiture right in the network environment.These controversies are also important issues related to the theory of portraiture right.Rethinking on these controversies is of great significance to perfecting the system of portraiture right and guiding judicial practice.The basis for the protection of the deceased’s portrait should be "close relatives and social interests." The property interest of the deceased’s portrait is an intangible property right that can be inherited by the deceased’s heirs.The recognition of the portrait should be judged by identifiability.The identification of celebrity and non-celebrity portraits should adhere to different identifiability criteria.In collective portraits,photography and art works,there are conflicts between individual portrait rights of collective members and conflicts between portraiture right and copyright,and the conflicts should be dealt with by the principle of coordinating rights conflicts.In order to safeguard the public interest,safeguard freedom of speech,and ensure the normal development of society,a system of reasonable use of portraiture right should be established.The reasonable use of portraiture right should be limited by the principles of legal retention,close ties,and case-measurement.Adjusting the commercial use of portrait should adopt the“personality right model” to protect the property interests of portraiture right within the personality right system."For profit" is not a component of the tort liability of portraiture right,which is an important factor in considering the liability of portraiture right tort.For the infringement that are caused by commercial use of the portrait,we should insist the property damage compensation to relieve the obligee,the obligee can also claim the right to return improperly.With the rapid development of the network,especially the rise of network expression packs,the portraiture right infringement in the network environment presents some new features,and it is of certain significance to carry out research on this.Under the system of independent code of personality right in our Civil Code,portraiture right should be stipulated in a single chapter,and the position should be after general provisions,material personality right,and name right.On the basis of analyzing the judgments and rethinking on theoretical issues of portraiture right,combining with the discuss of the legislative model and existing legislative design of portraiture right,this paper puts forward some suggestions for improving the system of portraiture right,and legislative suggestions on portraiture right in Personality Right Compilation of the Civil Code of China in the future.