On The Rules Of Compensation For Infringement Of The Commercialization Of Portrait

With the rapid development of market economy and science and technology,he property value embodied by portrait rights continues to show,and the commercial use of portrait right is very common.According to the current general theory,portrait right should be unified under the personality right system to regulate and protect.Where commercial use of the portrait of another person causes damage without permission,compensation for property damage may be established.Although the Intellectual Property Law and the Anti-Unfair Competition Law have set up relevant clauses on intangible property damage compensation,there are still major shortcomings in remedying the infringement of the commercial use of portrait rights.Article 1182 of the "Civil Code" affirms the property value of personality rights and enriches our country’s damage compensation system.It not only affirms that the right holder requests compensation for infringement damages based on actual losses,but also establishes compensation for infringement profits and discretionary compensation.The core of this article is the application of the infringement compensation rules for the commercial use of portrait rights.Through "Beijing University Magic Weapon",using "portrait rights infringement" as the key word,165 judgments were retrieved.After reading and analysis,there are three main problems in judicial practice in the commercial use of portrait rights infringement cases: confusing the application of property damage compensation and spiritual damage compensation,difficult to prove property loss and infringement of profit,different compensation standards.Although Article 1182 of the "Civil Code" stipulates a variety of methods for calculating the amount of compensation for property damage,the application effect in practice is far from reaching legislative expectations.This article believes that,first of all,pure commercial use of portrait rights generally does not harm spiritual interests,and the application of mental damage compensation should be limited to exceptional circumstances,namely,contrary to my wishes and causing negative social effects.Secondly,analyze the reasons.The damage compensation based on the principle of "filling the loss" is the main reason for the low application rate of actual damage compensation.In order to realize the complete compensation of the damage,the "gap theory" confuses the field of action of damage and damage amount.Damage is a cause of liability,which exists in a certain way or is perceived based on usual experience,that is,in the commercial use of portrait rights,as long as the property interests are infringed,it can be determined that property damage has occurred.Thirdly,the basis of the right of claim and the scope of compensation for infringement profits have always been the focus of debate in theory and practice.The basis of the right to claim for profit compensation and improper gains,unreasonable management,or independent claiming rights all overlap and are insufficient.In fact,profit from infringement is only used as one of the different calculation methods to determine the amount of damages.The purpose is to provide convenience for calculating losses and meet the protection needs of special forms of rights.In order to better utilize the application of profit compensation in the field of infringement damage,the difficulty of proving the amount of profit is solved by adopting methods such as the order rule of the document and the inversion of the burden of proof.Finally,discretionary compensation is still the most common way for courts to determine the amount of compensation for infringement damages,but the lack of a unified and objective damage compensation standard and the excessive discretion of judges have resulted in significant differences in the amount of compensation between cases.This article believes that the transfer-ability of the property interests of portrait right should be recognized in accordance with the principle of voluntarism of the parties and on the premise of not damaging the public interests and not violating social ethics,so as to provide a legal basis for establishing the contract type of portrait right license and the legal status of the authorized person.Portrait right licensing contracts can be divided into three categories: exclusive licensing,exclusive licensing and general licensing.Among them,the exclusive license licensee should enjoy independent legal status.At the same time,it should be clearly and have operative damage compensation calculation standards,such as improving the application rate of portrait permit in determining the amount of compensation,establishing a legal compensation standard.