TYGlobe

In today's commercial society, disputes over celebrities' portrait rights are common. In recent years, there have been frequent cases where a large number of enterprises are sued as defendants for using actors' portraits based on authorization granted by third-party companies in the name of film and television copyright holders. Recently, the People's Court of Wuqing District, Tianjin Municipality has concluded a portrait right dispute case involving a well-known actor A, Company B and Company C. Lawyers Wang De and Zhang Zhaotian of TYGlobe acted as litigation representatives of Company B, the involved enterprise accused of infringement, to participate in the proceedings of this case. Today we will conduct an in-depth analysis of this case.

First, let us get acquainted with the background of the case. Actor A, by virtue of his outstanding performance in multiple TV dramas and films, has won the affection of the vast audience, received a number of awards, and enjoys relatively high popularity and influence among the public. Company B is an enterprise mainly engaged in the production of tricycles and spare parts and components thereof, which has legally registered the "Mouxi" trademark. During the period from March 2023 to April 2024, Company B was authorized by Company C to use the stills and relevant materials of a released film in which Actor A participated in shooting. Subsequently, pursuant to the *Film and Television Copyright License Contract*, Company C sent the specified stills and materials bearing the portrait of Actor A to Company B. The portrait of Actor A was then used on the outer packaging cartons and bodies of "Mouxi" brand electric tricycles, video platforms and other scenarios for commercial publicity.

However, Actor A contends that Company B used his portrait without his authorization, which infringed upon his legitimate rights and interests. Accordingly, he filed a lawsuit with the People's Court of Wuqing District, Tianjin Municipality, demanding that Company B immediately destroy all infringing promotional materials, cease all infringing acts, and pay compensation of RMB 1,000,000 for economic losses as well as reasonable expenses incurred for rights protection.

The focal points of dispute in this case are mainly concentrated in the following aspects:

First, does the conduct of Company B constitute infringement? Actor A firmly asserts that Company B, without obtaining his or her consent or authorization, uses his or her portrait for commercial publicity without permission, and such act undoubtedly seriously infringes upon his or her portrait right. However, Company B argues that its use of Actor A's portrait is based on the *Film and Television Copyright Licensing Contract* signed with Company C. Pursuant to the stipulations of the contract, Company C provides materials including stills and posters of a certain film to Company B, and Company B is entitled to use such materials for joint promotion within the authorized scope agreed in the agreement. Therefore, Company B holds that its use act is legitimate and compliant and does not constitute infringement.

Second, shall Company C bear the primary liability? Even if the acts of Company B are deemed to constitute infringement, the primary liability shall be borne by Company C. When entering into the contract with Company C, Company B has fulfilled the reasonable prudence obligation required of a civil subject, and Company C has explicitly warranted that the materials it provides have lawful use authorization and licensing rights. However, during the court trial, Company C failed to produce sufficient and compelling evidence to prove that it enjoys the lawful right to use the portrait of Actor A, which clearly demonstrates Company C's subjective malice of contract fraud, resulting in Company B being embroiled in this intractable infringement dispute.

When trying the present case, the court conducted a comprehensive and in-depth review and assessment of the claims of both parties. The court held that citizens enjoy the right of portrait pursuant to the law, and any use of a citizen's portrait for profit-making purposes without the consent of the person concerned shall be prohibited. As a well-renowned actor, the portrait of Actor A carries non-negligible market value in the commercial promotion sector. Without obtaining consent or authorization, Company B arbitrarily used Actor A's portrait on the outer packaging cartons and bodies of "Mouxi" brand electric tricycles, video platforms and other scenarios, and marked the word "endorsement" on relevant carriers. Such an act is obviously for the purposes of commercial publicity and profit-making, and has constituted a serious infringement upon Actor A's right of portrait. With regard to the defense grounds put forward by Company B, after careful examination, the court held that although Company B and Company C had concluded the *Film and Television Copyright License Contract*, neither party could provide sufficient evidence to prove that Company C legally holds the lawful right to use Actor A's portrait. In addition, the photo of Actor A used by Company B is not a still of the related film. Company B should have fulfilled a higher duty of care and conducted prudent verification before using the relevant portrait. Accordingly, the defense grounds raised by Company B are untenable.

In addition, the court further held that although Company B was defrauded by Company C, the plaintiff Actor A, as the infringed party, did not file a litigation claim against Company C. Accordingly, the court does not uphold Company B's argument that Company C shall bear tort liability. In the final judgment, the court ordered Company B to immediately cease the act of infringing upon the plaintiff's right of portrait, and pay RMB 100,000 to Actor A as compensation for economic losses.

Through in-depth analysis of this case, we can draw the following important enlightenments:

First, the scope of protection of the right to portrait is clear and extensive. As an important personality right enjoyed by natural persons, the right to portrait covers multiple aspects including the creation, use and publication of portraits. Without the consent of the portrait right holder, no person may use the holder's portrait for profit-making purposes. In this case, Company B arbitrarily used Actor A's portrait for commercial publicity without the consent or authorization of Actor A, which undoubtedly constitutes an infringement upon Actor A's right to portrait.

Secondly, contractual authorization has clear boundaries. Although Company B and Company C signed the *Film and Television Copyright License Contract*, this contract cannot serve as a "protective shield" for Company B to evade tort liability. The scope of contractual authorization shall be strictly limited to the scope explicitly agreed upon by both parties to the contract, and shall in no case infringe upon the lawful rights and interests of third parties. In the present case, although Company B obtained the right to use part of the film materials from Company C, it did not obtain the lawful right to use the portrait of Actor A. Accordingly, the use act of Company B still constitutes infringement.

In conclusion, this dispute over portrait rights not only provides a highly valuable reference precedent for the adjudication of similar cases, but also serves as a solemn warning to enterprises on the lawful and compliant use of portraits of public figures in commercial publicity. In the course of pursuing commercial interests, enterprises must always keep in mind that they shall abide by laws and regulations and respect the legitimate rights and interests of others. Only in this way can they achieve steady development amid fierce market competition and build a sound corporate image.