Fourth, the basic categories of image rights: content, limitations, deadlines and protection
Image interests are a kind of non-material property interests. The process of commercialization of the image involves the distribution of interests between the rights holders of the image interests and the operators who use the images and between them and the public. As an institutional tool, the right to image gives the basic content of rights, establishes the distribution of interests, and infringes upon illegal acts. It also plays an adjustment and normative role in various social relations based on the commercialization of images.
The content of image rights. For intangible property rights, intangible property rights are a kind of exclusive civil rights; in contrast to ownership, intangible property rights are a kind of “new special rightsâ€. The same is true of the right to image. As a monopoly or exclusive right, it can be divided into image use right and image right prohibition power. The right to use the image is an active power, that is, the rights of right holders to commercialize various types of images. The use of the subject for the goods, at this point, the right to image and trademark rights have similarities. Whether it is an image or a trademark, it is always associated with a specific product. The image is the object of the goods, and the mark is the attachment of the goods. What is different is that the scope of the right to exclusive use of a trademark is limited to approved trademarks and approved products, and its scope is defined by the competent authority's combination of trademarks and commodities. The scope of the right to use the image does not require the competent authority to review it one by one. The method of use can be as long as it does not violate the law's express prohibition. Regarding the use of the image by the subject, it is possible to use various image confirmation factors in the product itself, so as to obtain benefits directly from the public attraction of the image in the merchandise business; it may also be to transfer or permit others to image the above image. The confirmation factor is used in related products to receive a transfer fee or a license fee. Since most of the owners of the image do not personally manage the merchandise, authorizing others to use it is the main method of image commercialization (or realization of the right to image). Image banned right belongs to negative power, that is, the rights holder excludes others from using their own various types of images to commercialize their rights. Like other intangible assets, non-material images cannot be actually occupied and controlled by right holders. In other words, people other than right holders can in fact acquire external features of their images, such as photographs and signatures of real people; fictional characters. Image, sound, etc. This means that it is not a fact that cannot obtain and use the image of others without permission, but that the law cannot. In other words, the protection of the right to image requires the creation of a banned right by law to exclude the illegal use of images by non-right holders. In terms of the scope of validity of the right to use and the right to ban, there are also differences in the right to image and trademark. According to the provisions of the Trademark Law, the scope of the right to prohibit the registration of a trademark not only covers the approved goods and approved trademarks to which the exclusive right points, but also extends to “similar goods†and “approximately trademarksâ€, which indicates that the scope of the right to prohibit trademark rights is greater than The scope of exclusive rights. The right to image is not the same, and the scope of its prohibition and use rights is the same. In other words, as long as it is not a law that is prohibited by the law, any method of commercializing the image is not only the scope of the right to use the image, but also the scope of the right to disable the image.
Restrictions on the right to image. Right of image is an absolute right, but it is not an unlimited monopoly right. The right-of-image system has the dual functions of rights protection and restriction in its interior. It not only safeguards the rights enjoyed by right-holders in the process of image commercialization, but also regulates the freedom of right-holders to engage in image-commodification activities. The factors that limit the right to image are the following: First, public order and good customs. The principle of public order and good customs is an important legal principle of modern civil law. It means that all civil activities must not be contrary to public order and good customs. Otherwise, this action will be negatively evaluated. It is generally believed that "public order" is a social order, including political, economic, and cultural public order; "good customs" are social morals, general morals, ethics, and customs that are necessary for social existence and development. The commercialization of the image does not mean that the image is used in the sense of "disordered," "unfair," "poor," and "poor." For the violation of the principles of public order and good customs, judges can confirm their invalidity according to the general concept of social justice; the second is freedom of expression. Freedom of expression is a constitutional right that is generally considered by all countries, that is, citizens have the right to freely express opinions on various issues of the country and society. The methods of expression of freedom include language forms and written forms, including newspapers, magazines, paintings, costumes, photographs, movies, music, records, radios, televisions, and computers. The information involved in the expression of the right to liberty, that is, news, images, data, ideas, opinions, etc., may be the image-determining factors in the right to image. Therefore, under certain circumstances, the two rights will conflict. It is generally believed that relative to economic freedom and other rights, freedom of expression should have a "superior position," which should be regarded as a prioritized legal value. This means that the exclusive nature of the right to image should not be an obstacle to ideological performance and information exchange. The third is the exhaustion of rights. Exhaustion of rights is a limitation of copyright. In copyright law, the principle of exhaustion of rights is also referred to as “theory of first saleâ€. It means that “law allows rights holders to control the use of copyright, but this control does not extend to the use of the work itself.†Here, the so-called “exhaustion of rights†refers to the fact that after a product containing a well-known image is sold in a legal manner, regardless of the person’s hand, the image right holder has no right to control the circulation of the product, that is, the right holder exhausts the image once it is exercised. Right, can not be exercised again. This system design not only protects the image right holder's right to gain commercialization of its image, but also protects the legitimate interests of the buyer of that particular product, avoids unrestricted monopoly in trade, and removes obstacles to the free circulation of goods. .
The term of right of image. The right of image is essentially a kind of property right, and it should have the same protection period as intellectual property rights. Although some real character images and fictional characters permanently exist in the minds of the public, the commercial interests of such images are not protected indefinitely. It is generally believed that the term of protection of the right of image and the rights holder's life are self-evident; this right will continue after the rights holder has died, and there is no dispute. Because of the different types of images, the protection of the right of the image of the real person and the protection of the right of the fictitious role are different in the legal mechanism. It is generally believed that the fictional characters and their various image confirmation factors are the author's creations, that is, they are part of the copyright works. The protection period for the copyright protection of a work is set. Therefore, the time limit for the protection of the image right of a fictitious role can be determined by referring to the copyright protection period of the work. As for the real character, it is related to the traditional personality. Some scholars believe that before and after the birth of a civil entity, there was a prior legal benefit and a continuation legal benefit that were different from the personal rights. The deceased can provide legal extension protection that is different from personal rights. The “extended protection†is intended to explain the mutual connection between personal interests and personal rights, so as to form the complete personal interests of civil entities. This theory has merit in clarifying the legal basis for the protection of the right of real people. The subject of the right to protection of the image and the object of post-mortem protection relate to personality. Unlike personal rights, the form of extended protection is still rights, not legal interests. This is due to the property rights nature of the right to image. The period for the right to image can be considered as 50 years after the rightful owner has died. This approach draws on the reasonable core of the copyright protection period (protection of the image of the fictitious role), and also takes into account the reasonable provisions of relevant foreign legislation (protection of the image of real people), and fully embodies the respect for the continuation of property interests after the death of the right holder. .
Protection of the right to image. Legal protection of image rights involves infringement and remedies. The act of infringing on the right to image is the act of unauthorized commercialization of another person’s image without authorization. To file a copyright infringement complaint, the following conditions must be met:
First, the subject of rights is the subject of litigation. The subject of the right must have an effective right of image, and is the exclusive licensee who is entitled to sue for litigation, including the right-holder, right-holder, and right-to-image;
Second, infringement is an act prohibited by law. The object of protection of image rights refers to various image-determining factors such as names, portraits, images, sounds, gestures, and the like of real persons or fictional characters. Any unauthorized commercialization of the identified factors mentioned above constitutes infringement, with the exception of legal restrictions;
Third, the damage to interests is the fact that property interests are damaged. The damage caused by the infringement of the right to the image should be the commercial value enjoyed by the right holders for their image, that is, the commercialization of property interests. If the use of other people’s image-determining factors for a specific product is detrimental to their personality, such as the use of another person’s portrait in toilets, it constitutes an indiscriminate use and should violate general personality rights. Remedies for the right to image should be civil remedies here. The protection of the right of image in civil law has two functions: one is to maintain the state of rights, and the other is to fill property damage. Due to the non-material characteristics of the image factor, the protection of this right does not apply to the request for restitution and the request for restitution, so the main means of legal remedies are injunction and damages. The so-called ban is the request to stop the infringement. It is a kind of “right to suitâ€. The prohibition order may apply to any infringement that may occur or has occurred. In the case of infringement of real characters, if the amount of damage is not large or damages are difficult to calculate, issuing a ban, especially a permanent ban, is an effective method of protection. The so-called damage compensation is a kind of "claims of claims." When the right to image is compromised, the right holder may request the infringer to pay a certain amount of money for compensation. The application of this remedy involves two issues: First, the principle of liability for damages. The application of liability for damages for infringement should consider whether the defendant’s subjective fault. According to the principle of attribution of liability for damages for infringement under the Intellectual Property Law, it is appropriate to specify fault liability or presumption of fault liability. The second is the damage compensation calculation standard. The damages of the right holders were filled up, and the standard of recovering the damage accidents had not occurred. Therefore, in calculating the amount of compensation, the market value of the image-determining factors should be considered, or the illegal profits derived by the infringer. When the market value and illegal income are not easy to determine, the judge may make a decision according to the social impact of the infringement, the infringement method and plot, the scope and time of the infringement, etc.
Source: Times of Lawyer: Wu Handong