Hotspots · Analysis

Do cartoon characters belong to portraits? Viewing Jia Ling's Portrait, Winning Rights Protection and Receiving Compensation

This year, the movie "Hot and Spicy" directed and starring Jia Ling was released in mainland China, and the inspiring story of weight loss in the movie inspired many viewers. Subsequently, there were many unscrupulous merchants in the market who used Jia Ling's image for advertising without her consent.

In April 2024, Jia Ling discovered that Anhui Health Industry Development Co., Ltd. had printed Jia Ling's portrait on the packaging of its "Ms. Jia Black Coffee" without consent, and filed a lawsuit with Qiaocheng District People's Court in Bozhou City, Anhui Province. Afterwards, the court found that Anhui XX Health Industry Development Co., Ltd. (hereinafter referred to as the "defendant company") is a production enterprise of "Ms. Jia TM Black Coffee". The packaging of the "Ms. Jia TM Black Coffee" produced by the defendant prominently features a cartoon image of Jia Ling boxing. The "Ms. Jia TM Black Coffee" is sold on various e-commerce platforms. On July 10, 2024, the court made a judgment (2024) Wan 1602 Min Chu No. 9053, ordering Anhui Health Industry Development Co., Ltd. to cease infringement, not to produce any products that infringe on Jia Ling's portrait rights, publicly apologize to Jia Ling, and compensate Jia Ling for economic losses of 100000 yuan. This article analyzes the hot topic event from the following points.

1、 Is the cartoon image of Jia Ling boxing scene the object of portrait rights protection

Article 1018 of the Civil Code of the People's Republic of China stipulates: "Natural persons have the right to their portraits, and have the right to lawfully make, use, publicly disclose, or permit others to use their own portraits. A portrait is an external image of a specific natural person that can be recognized through imaging, sculpture, painting, and other means on a certain carrier

There is currently no clear legal provision in China regarding whether the use of cartoon images constitutes infringement of portrait rights. However, in judicial practice, it is believed that a portrait is a representation of a natural person's physical appearance on a material carrier. As long as the cartoon reflects a recognizable natural person image, the cartoon image can belong to the category of portrait concepts and become the object of legal protection of portrait rights in China. In this case, the defendant company used cartoon images of Jia Ling boxing scenes on the packaging of its produced "Ms. Jia TM Black Coffee", which can reflect a recognizable image of Jia Ling. This cartoon image belongs to the category of portrait concept. This judgment also has a deterrent effect on companies that use celebrity cartoon images to make profits by playing the "borderline" game to a certain extent.

2、 Does Jia Ling have the right to demand that the infringer stop infringing

Article 995 of the Civil Code of the People's Republic of China: "If a person's personality rights are violated, the victim has the right to request the actor to bear civil liability in accordance with the provisions of this Law and other laws. The victim's right to stop the infringement, eliminate obstacles, eliminate dangers, eliminate influences, restore reputation, and request an apology does not apply to the provisions of the statute of limitations for litigatio

In this case, Anhui XX Health Industry Development Co., Ltd. used cartoon images of Jia Ling boxing scenes on the packaging of its "Ms. Jia TM Black Coffee" production, which infringed on Jia Ling's portrait rights without her consent. As a well-known actress and director in China, Jia Ling's portrait has certain commercial value. The infringement of her portrait rights by the defendant company will inevitably result in the economic interests contained in her portrait rights being damaged, and it is also easy for the public to have a brand representation relationship between Jia Ling and the defendant company's production of goods. Therefore, Jia Ling has the right to demand that the infringer stop infringing.

3、 How to determine the compensation amount for infringement of portrait rights

Article 1000 of the Civil Code of the People's Republic of China stipulates: "If a person assumes civil liability for the infringement of personality rights, such as eliminating the impact, restoring reputation, and apologizing, it shall be commensurate with the specific manner and scope of the impact caused by the act

The loss of infringement of portrait rights is generally mental compensation. According to Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Compensation Liability for Mental Damage in Civil Infringement, the amount of compensation for mental damage shall be determined based on the following factors:

（1） The degree of fault of the infringer, except as otherwise provided by law;

（2） Specific circumstances such as the means, occasion, and behavior of infringement;

（3） The consequences of infringement;

（4） The profit situation of the infringer;

（5） The economic capacity of the infringer to bear responsibility;

（6） The average standard of living in the location of the court of appeal.

In judicial practice, the amount of compensation for infringement of portrait rights is generally determined based on the degree of fault of the infringer, the actual losses suffered by the rights holder due to the infringement, and the benefits obtained by the infringer due to the infringement in question. During the trial of this case, the defendant company claimed to only produce 5000 boxes of "Ms. Jia TM Black Coffee" with infringing portraits, with a sales revenue of 11000 yuan. Jia Ling did not provide evidence to prove that the defendant company had committed any other infringing acts other than producing infringing goods. Therefore, the court determined that neither party could provide evidence to prove the actual losses suffered by Jia Ling due to the infringement or the benefits obtained by the defendant company due to the involved infringement. Based on the commercial value of Jia Ling's brand endorsement, the cost of rights protection, and taking into account factors such as the degree of fault, purpose, method, duration, and compensation ability of the defendant company, the court ultimately decided that the defendant company should compensate Jia Ling for an economic loss of 100000 yuan.

Industry · New Policies

1. Hangzhou releases legal risk prevention guidelines for intellectual property protection in the online live streaming industry

On August 21, 2024, in order to promote the healthy and orderly development of the Internet live broadcasting industry, strengthen the code of conduct and risk prevention of relevant subjects of the Internet live broadcasting, promote the improvement of the service supervision level of the live broadcasting marketing platform, safeguard the legitimate rights and interests of practitioners and consumers in the live broadcasting industry, and ensure the high-quality development of the service platform economy, the Hangzhou Internet Court held a press conference to ensure the healthy development of the online live broadcasting industry. Vice President Guan Jiahui informed the Hangzhou Internet Court about the service guarantee for the healthy development of the live broadcasting industry. At the scene, the "Guidelines for Legal Risk Prevention of Online Live Streaming Marketing Behavior", "Guidelines for Legal Risk Prevention of Intellectual Property Protection in the Online Live Streaming Industry", and typical cases of service guarantee for the healthy development of the live streaming industry were also released.

2. Announcement on Publishing the Law Enforcement Guide for Internet Advertising Identifiability

On August 23, the website of the State Administration of Market Supervision published the Announcement on the Issuance of the Law Enforcement Guide on Internet Advertising Identifiability.

There are 16 articles in the Internet Advertising Identifiability Law Enforcement Guide, which details the subject of obligation and specific ways to mark "advertising", enriches the way to mark "advertising", and allows advertising publishers to achieve advertising logo through voice prompts and other ways; For the first time, it clarifies the scenario that Internet advertisement publishers and Internet information service providers can "pack" and label relevant Internet advertisements, instead of labeling Internet advertisements item by item; It enumerates the specific situations where the commercial attribute of Internet information is particularly prominent, and consumers are not easy to confuse advertising with other information; It emphasizes the specific circumstances in which administrative penalty may not be imposed in the law enforcement of Internet advertising identifiability; Adopting guiding clauses to encourage advertising publishers to proactively inform about the use of artificial intelligence technology in their advertisements is beneficial for exploring and improving regulatory rules for artificial intelligence technology in the future, and promoting the standardized development of artificial intelligence technology.

3. Announcement on the Public Solicitation of Opinions on the Guiding Opinions on Promoting High Quality Development of Digital Advertising Industry in Beijing (Draft for Comments)

On August 29th, the Beijing Municipal Government website released a notice soliciting opinions on the "Guiding Opinions on Promoting the High Quality Development of Digital Advertising Industry in Beijing (Draft for Comments)"

The Guiding Opinions involve four parts: firstly, to build an innovative development system for the digital advertising industry. The second is to build a high-quality service system for the digital advertising industry. The third is to build an efficient regulatory system for the digital advertising industry. Fourthly, there are safeguard measures.