| Performers’ public influence increasingly expands due to the continuousdevelopment of China’s film and television industry. Meanwhile, cases in terms ofinfringing on performers’ right of portrait increase day by day. Since the current lawsfa il to clearly ascertain the scope of the right of portrait, protections for performers’right of portrait turn out to be rather inadequate. As stated by Dworkin, Law is a kindof practice which should be constantly improved and perfected. Through a caseanalys is, it is hoped that this paper can provide some va luab le experie nce and he lpfullessons for legal practice of performers’ right of portrait in China.The pla intiffs La n Tia nye filed a case to the court accusing that the defendants,Sunwor ld Dynasty Hotel and Beij ing film stud io, have used his character stills in thefilm called Teahouse without his permiss ion. There are two main dispute points in thiscase. Firstly, whether the character stills of filming works can be regarded as a kind ofthe right of portrait? Secondly, how to solve the legal conflicts between performers’right o f portrait and the copyr ight o f film and te levis ion works? a number ofimp lications can be put forward on the basis of the dispute points. First o f all,according to China’s current laws, natural persons’ right of portrait is legallyprotected. However, whether perfor mers can enjoy the right of portrait for the ir stillsis not exp lic itly stipulated in the laws. Secondly, Stills o f Lan Tianye’s characterhighly reflects his persona l image and has the le ga l characteristics of portrait.Therefore, he can claim the right of portrait for his stills. Thirdly, when performers’cla im the right of portrait of the ir film or tele vis ion stills, the figure sha ll have theobjective identifiability a nd concrete carrier. Lastly, whe n solving the conflictsbetween perfor mers and copyright o f film and te levis io n works, the autono my of willof both parties shall be well respected. Subsequently, it is advisab le to differentiatecopyright owners’ purposes of using the performers’ image. Accordingly, the relationsbetween performers’ right of portrait and the copyright of film and television workscan be hand led with differentia l treatments.As a matter of fact, problems of performers’ right of portrait can be solvedthrough grasping the objective relations between the le gal characteristics of portraitand the figure of characters in film and tele vis ion works. By analyzing the purposes ofcreating film and television works and the transfer of performers’ right of portrait in terms of the right of use, conflicts between performers’ right of portrait and thecopyr ight of film a nd televis io n works can be ratio nally solved. However, issues areexpected to be clear ly stipulated by relevant laws in China such as accuratel y definingthe scope of perfor mers’ right of portrait, explic itly stipulating the lega l ele ments forperfor mers to cla im the right of portrait for character stills, and bala nc ing therelations hip of interest allocation between perfor mers and copyr ight owne rs of thefilm and tele vis ion works in ter ms of character stills. |
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