Analysis On Yang Yang V.yunnan Baiyao Companies For Infringement Of Right Of Portraiture

With the rapid development of the cultural industry,the commercial value of character images in audiovisual works has been vigorously tapped,and film and television derivatives are increasingly showing huge market potential.However,the imperfect legal system in the development of film and television derivatives has hindered the development of the film and television derivatives industry to a certain extent.There have been more and more infringement cases related to the image of film and television characters.The case of Yang Yang v.Yunnan Baiyao Healthy Products Company for infringing his right of portraiture is a typical representative of such infringement cases.The plaintiff,Yang Yang,sued the court for the commercial use of the stills of the movie "To The Sky Kingdom" containing his character image by Yunnan Baiyao Healthy Products Company without his consent.The focuses of the dispute in this case are: whether actors have the right of portraiture for collective stills containing their characters,whether the copyright owner of the stills has the right to commercialize or allow others to use the stills,and how to determine the scope of film and television derivatives in subsequent development and utilization.Starting from the ownership of the copyright of audiovisual works in new "Copyright Law" and the relevant provisions of the "Civil Code" of the People’s Republic of China on the license to use portraits,first of all,it is clear that "identifiability" is the criterion for judging whether an actor has the right of portraiture in the still image,so Yang Yang can claim the right of portraiture for the stills involved in the case;secondly,the holder of right of portraiture can authorize the copyright owner to commercially use or allow others to use the stills containing his character images within a certain range;finally,the subject of developing film and television derivatives should not be limited to the copyright owner.Yunnan Baiyao Healthy Products Company,as a third-party producer,did not infringe the rights and interests of the holder of right to portrait.In fact,even in group stills,by grasping the criterion of "identifiability",the issue of the actor’s right of portraiture can be easily solved.With the help of the transfer of the actor’s right of portraiture,the conflict between the actor’s right and the copyright of film and television works can also be reasonably resolved.In the development of derivatives,the coordination rules for the conflict between actor’s right of portraiture and copyright of audio-visual works should be based on full respect for the autonomy of the parties,and the "secondary right to remuneration" should be introduced from the legislative level to fully protect the rights and interests of all rights holders.