Research On The Tort Relief In The Commercial Use Of Portrait

With the development of socialist market economy in China,portrait,as the object of personality right,contains economic value,and as an important content of personality right,the commercialization of portrait right should be paid attention to.With the commercial use of portrait in judicial practice,legal disputes emerge one after another.The protection of portrait right and the relief of infringement meet the needs of China’s real development.This article starts from the judicial practice,explores the relief of the commercial use of portraits in tort.This paper is composed of four parts.The first part is the choice of the mode of portrait right protection in the commercial use.Firstly,it defines what is “Portrait commercial use”and discusses the particularity of portrait commercial use protection,by comparing the different systems of the two countries and the different methods of protecting the property interests of the personality right,it is concluded that our country is more suitable to adopt the protection mode of the expansion of the personality right.The second part is the infringement cognizance of the commercial use of the portrait.The important revision of the Civil Code expands the scope of the protection of the portrait right.The determination of portrait infringement no longer regards “For profit”as the essential condition,and at the same time,distinguishes the reasonable use behavior of portrait right.The third part is the relief of personal rights and interests caused by the infringement of portrait right.As a special way of tort liability of personality right,the way of apology is also applicable to the infringement of portrait right The cognizance of the liability of mental damage for improper commercial use of portrait requires that the compensation for mental damage should reach the “Serious”degree,and explore the concrete and objective cognizance standard that can judge “Serious”.The fourth part is mainly about the compensation for the damage of property rights and interests caused by the infringement of portrait rights.When the loss suffered by the portrait owner and the benefit of the infringed can not be determined,the court shall make a discretionary decision according to the comprehensive circumstances of the case.