Research On The Civil Law Protection For The Commercial Use Of Portrait Rights

Establishing the civil law protection system for the commercial use of portrait right is an important measure to strengthen the protection of portrait right and personality right.With the unprecedented of commodity economy and the modern mass media technology developed,the property value contained in some personality rights has become increasingly prominent,and the commercial use of their property rights has become more and more common.However,the commercial exploitation and utilization of the interests of personality rights is not the content of rights covered by personality rights or property rights in the traditional civil rights system,so it is necessary to improve the relevant legal provisions and protection system for the commercialization of personality rights.Portrait,as a kind of personality symbol,has the characteristics of otherness,disposable and commercial utilization.Portrait right,as an important part of personality right,is the most prominent phenomenon of commercial utilization in the environment of market economy.As for the commercial use of portrait right nature,legal position and protection mechanism of the commercial use of portrait right,judicial practice is still in the process of continuous exploration,which needs to be further improved by our civil legislation.This paper attempts to make a more comprehensive exposition of the commercial use of portrait right,and puts forward the author own suggestions on the construction of civil law protection mechanism for the commercial use of portrait right.This article mainly through four parts of the discussion,step by step to complete the portrait right of China’s commercial use of protection system.The first part is a general theoretical overview of the commercial use of portrait right.Starting from the specific meaning of portrait right commercial utilization,through the discussion on the nature of the commercial use of portrait right in the existing academic circles,it is considered that the commercial utilization of portrait right refers to the use of people’s portrait in the promotion of products,services or certain activities for commercial purposes in pursuit of more economic benefits or better publicity.The commercial utilization of portraiture right is not separated from the category of personality right,so it is more reasonable to include it in the new personality right attribute.When determining the subject ofportraiture right commercial utilization,it is not right to deny the dominant qualifications of ordinary people’s portrait right to be used commercially just because the celebrity’s portrait right can be used more commercially.The personality right attribute of portrait right determines it contains the spirit of personality interests should belong to the rights of the object of commercial use,and in the process of commercial exploitation rights will be derived property value,and is mainly used for commercial use rights of the property interests,so the spiritual interests and economic interests of portrait right should belong to the object of portrait right commercial utilization.The second part mainly introduces and analyzes the extraterritorial protection mode of portraiture right commercial utilization,and finds out the protection mode suitable for China’s national conditions and legal basis.The United States protects the economic interests of portrait right by establishing the right of publicity,and the spiritual interests of portrait right are still protected by the traditional right of privacy.Germany adopts the unified rights protection mode to expand the connotation of personality right,which puts the spiritual and property interests of portrait right under the scope of personality right protection,and protects the commercial use of portrait right through the combination of general personality right and specific personality right.By comparing the typical models outside of China,according to the legal basis of our country and the legal nature of the portrait right commercial utilization,it is more reasonable to adopt the unified rights protection mode of personality right to protect the commercial use of portrait right in our country.The third part investigated and analyzed the current situation and existing problems of portrait right commercial utilization in China.By analyzing the provisions related to the commercial use of portrait right in the Civil Code(draft),including the licensing method,protection form and civil liability provisions,pointed out that there are still deficiencies in the draft,such as unclear property interests of portrait right and lack of specific provisions on economic damages.In the field of judicial practice,most of the courts recognize the property interests of portrait right,but due to the lack of specific compensation standard provisions in the law,the judge has great discretion in determining the amount of compensation.In the fourth part,based on the problems existing in the legislation and judicature of the commercial use of portrait right in China,and in combination with the existing civil code(draft),the author puts forward specific suggestions on the construction of the civil law protection system for the portrait right commercial utilization.Firstly,the property interests of portrait right should be stipulated in the law.Secondly,in the chapter of portrait right,specific ways of commercial utilization of portrait right should be added and refined,including provisions on the use,permission to be used and licensee transfer using;On the issue of compensation for damages caused by improper commercial exploitation of portrait right,put forward economic compensation and spiritual compensation proposed further ideas according to the existing legal provisions,including the basis of the right to claim for two types of damages,the determination of damages and the determination of the amount of compensation standards;Finally,discussing the defense of the infringement claim in the commercial utilization of portrait right,including freedom of expression,fair use and exhaustion of rights,so as to better protect and regulate the commercial use of portrait right.