News

Gist of the judgment: in view of the long-term infringement of fuerxing company and the wide range of influence of the infringement, and on the premise that both Ma Yili and fuerxing company failed to provide sufficient evidence to prove that they suffered losses or obtained benefits, the court decided that fuerxing company should compensate Ma Yili for the economic losses of 100000 yuan based on the commercial value of Ma Yili portrait, the nature of fuerxing company, the cost of advertising endorsement, the number and location of published portraits, etc.

Fujian Jinjiang people's Court (2017) min 0582 min Chu No. 729 civil judgment

Fujian Quanzhou intermediate people's Court (2018) min 05 min Zhong No. 2426 civil judgment

1、 Brief introduction to the case

Ma Yiyu is a well-known actor with high popularity, and the portrait has great commercial value. On September 6, 2010, Ma Yili and fuerxing signed an advertising endorsement contract on. The two parties agreed that Ma Yili would shoot print advertisements for "fuerxing" brand stainless steel tableware, kitchenware, knives and scissors, utensils and other products, which would be used to act as the exclusive image spokesperson of the brand products and promote the above-mentioned products. The validity of the advertisements was 36 months (from November 1, 2010 to October 31, 2013), Fuerxing company and its dealers can use advertisements containing the image of Ma Yixing within the scope agreed in the contract, and fuerxing company will pay Ma Yixing 2million yuan as a reward. At the same time, both parties agree that if fuerxing company does not renew the contract, fuerxing company must immediately stop using the image of Ma Yixing in print advertisements, Fuerxing company promises to stop shipping goods with Mayi portrait packaging to dealers 20 working days before the expiration of the contract. Fuerxing company also issues a written notice to dealers, stores and media units to stop using Mayi portrait advertising. Mayi agrees that fuerxing company will continue to sell the remaining goods in dealers and terminal markets until they are sold out after the expiration of the 60 day recovery period. The two parties have not signed a new advertising endorsement contract after the expiration of the "advertising endorsement contract". Since October 31, 2013 until the prosecution of this case, fuerxing company has continued to be on the company's website（ ××） Use and publish product information containing the portrait of Ma Yili. Fuerxing company still stored a large number of product packages containing the portrait of Ma Yili, which were not destroyed in time.

Without the permission of Ma Yili, fuerxing company used Ma Yili's portrait on a large scale in the advertising and product packaging of products through fuerxing's official website, tmall.com, jd.com and alibaba.com, and claimed that Ma Yili was the brand image representative of fuerxing company. Laifu kitchen utensils store sold the infringing products produced by fuerxing company in the physical store without the permission of Ma Yili. The acts of fuerxing company and Laifu kitchen utensils store seriously infringed on Ma Yili's portrait right and caused great economic losses and mental damage to Ma Yili, so they were sued to the people's court.

For the purpose of completing the fund filing, private fund managers shall not submit the filing in the case of "not raising real investor funds". Otherwise, the association will not only refuse to handle the filing of "shell funds", but also take self-discipline measures for private fund managers who frequently submit the filing of "shell funds" and refuse to rectify, as the case may be.

(the picture is quoted from the network)

Ma Yili requests:

1. Fuerxing company and Laifu kitchenware store immediately stop infringing on the right of Ma Yili's portrait, delete product advertisements containing Ma Yili's portrait on the Internet, and destroy all product advertisements and product packages containing Ma Yili's portrait;

2. Fuerxing company and Laifu kitchen utensils store make a public apology to Ma Yili in the newspapers published nationwide. The contents of the apology should include the case number of the judgment, the name of the infringing picture, the infringing picture and the location of use. The area of the apology page should not be less than 6.0cm*9.0cm;

3. Fuerxing company and Laifu kitchen utensils store compensate Ma Yili for economic losses of 1million yuan, mental damage solace of 100000 yuan and reasonable expenses of 50000 yuan, totaling 1.15 million yuan.

3、 Defendant's rebuttal

Fulxing argued:

1. Fuerxing company did not infringe Ma Yili's portrait right. The fact is that fuerxing company and Ma Yili signed the "advertising endorsement contract" on September 6, 2010, agreeing that Ma Yili would shoot plane advertisements for fuerxing's "fuerxing" brand stainless steel tableware, kitchenware, knife and scissors products, and act as the exclusive image spokesperson of the brand products and promote the "fuerxing" brand stainless steel tableware, kitchenware, knife and scissors product series, Fuerxing company and its brand dealers can use advertisements containing the image of Ma Yili within the scope of the contract. Both parties also agreed that after the expiration of the contract, Ma Yili agreed that fuerxing company would continue to sell the remaining goods in the dealers and terminal stores until they were sold out. The "advertising endorsement contract" signed by both parties on the premise of equality, voluntariness and consensus is legal and valid, and fuerxing company has the right to use the portrait of Mayi according to law;

   
   

2. Fuerxing company did not violate the agreement of the advertising endorsement contract, and there was no infringement. Ma Yili's claim lacked factual and legal basis, and the request was rejected.

Laifu kitchenware store argued:

1. The term of validity of the advertising endorsement contract is from November 2010 to October 2013. The products sold by Laifu kitchenware store were purchased from the dealers of fuerxing company through formal channels before the expiration of the term of validity of the contract, so the products sold by Laifu kitchenware store are legal products;

   
   

2. The products involved in the case are durable products. According to the product characteristics, industry habits and Ma Yili's authorization to fuerxing's terminal store in the advertising endorsement contract, Laifu kitchen utensils store can continue to sell the products manufactured by fuerxing company purchased before October 2013, and this continuous sales behavior does not constitute an infringement of Ma Yili's portrait right;

3. The quantity of products sold by Laifu kitchenware store is very small, and the damage to Ma Yili is extremely limited. Ma Yili's claim lacks factual and legal basis, and the request is rejected.

4、 Judgment result

First instance: 1 Fuerxing company shall immediately stop infringing on the portrait of Ma Yili, that is, it shall destroy the product packaging containing the portrait of Ma Yili in fuerxing company within 15 days from the effective date of this judgment;

2. Fuerxing company shall make a public apology to Ma Yili in the newspapers and periodicals published nationwide within 15 days from the effective date of this judgment (the content must be reviewed by the court);

3. Fuerxing company shall compensate 125000 yuan in total for the losses caused by the infringement of Ma Yili's portrait right within 15 days from the effective date of this judgment;

4. Reject other claims of Ma Yili.

Second instance: dismiss the appeal and uphold the original judgment.

5、 Case analysis

A citizen enjoys the right of portrait, and may not use a citizen's portrait for profit without his consent. The focus of the dispute in this case is whether fuerxing company and Laifu kitchenware store have infringements and whether they should bear corresponding tort liability.

First of all, after the expiration of the advertising endorsement contract signed between fuerxing company and Ma Yili, fuerxing company continues to use Ma Yili's portrait on the company's website without Ma Yili's consent, and fails to destroy the product packaging containing Ma Yili's portrait in time, which is an infringement of Ma Yili's portrait right and should bear the corresponding tort liability. Ma Yili asked fuerxing company to stop infringement, apologize, and destroy the product packaging containing Ma Yili's portrait in fuerxing company. It is legal, reasonable, and can be supported. Because fuerxing company has deleted the information containing the portrait of Ma Yixing on the company's website, the court will not repeatedly judge fuerxing company to stop the infringement of this part. However, in view of the long-term infringement of fuerxing company and the wide range of influence of the infringement, and other factors, under the premise that both Ma Yixing and fuerxing company failed to provide sufficient evidence to prove that they suffered losses or obtained benefits, the court integrated the commercial value of the portrait of Ma Yixing Fuerxing company will compensate Ma Yili 100000 yuan for economic losses based on the nature of the company, advertising expenses, the number and location of published portraits, etc. Because the infringement of fuerxing company did not belittle or vilify the image of Ma Yili, it could not be determined that the infringement caused serious mental damage to Ma Yili, so the mental damage requested by Ma Yili was not supported by law.

Secondly, Ma Yili said in the court trial that no continuous infringement was found in Laifu kitchen utensils store. Although Ma Yili provided evidence to prove that Laifu kitchen utensils store sold products containing the portrait of Ma Yili, he failed to provide further evidence to prove whether the products sold by Laifu kitchen utensils store were infringing products, and whether Laifu kitchen utensils store had joint infringement intent and other constitutive elements, so Ma Yili requested Laifu kitchen utensils store to jointly bear the tort liability, There is no factual or legal basis and it is not supported.

6、 Lawyer's statement

According to Article 1018 of the civil code Article 1019 "Portrait refers to the external image of a specific natural person reflected on a certain carrier through images, sculptures, paintings, etc. No organization or individual may infringe upon the portrait right of others by defacing, defacing, or forging by means of information technology. Without the consent of the portrait right holder, the portrait of the portrait right holder may not be made, used, or made public, except as otherwise provided by law. Without the consent of the portrait right holder, The right holder of a portrait work may not use or disclose the portrait of the right holder by means of publication, reproduction, distribution, lease, exhibition, etc. " In this case, the advertising endorsement contract signed between fuerxing company and Ma Yili clearly stipulates that the use of Ma Yili's portrait in print advertisements must be stopped immediately after the expiration of the contract. After the expiration of the advertising endorsement contract signed between fuerxing company and Ma Yili, fuerxing company continues to use Ma Yili's portrait on the company's website without Ma Yili's consent. If it infringes Ma Yili's portrait right, it shall bear corresponding tort liability.

The amount of compensation awarded in this case is significantly lower than the amount of advertising fees agreed in the advertising endorsement contract. The term of validity of the advertising endorsement contract is from November 2010 to October 2013. According to the facts ascertained by the court, since the expiration of the contract, Fuxing company continues to use the portrait of Ma Yili. Even if it is temporarily used until the filing time of the first instance, the time of illegal use of portraits has exceeded 3 years. From the perspective of equal profits and losses, the author believes that the compensation recognized by the court is significantly too low. Equivalent to 100000 yuan, the portrait has been used for three years. Compared with the cost of normal use after signing the contract, it is obviously unable to achieve the effect of combating illegal infringement. Of course, it does not rule out the problem that the amount of compensation awarded is too low due to the failure to provide evidence for the specific use time of foxing company in the trial. Or the court comprehensively considered the factors such as the obligee did not actively protect his rights after the infringement occurred. If you want to avoid the occurrence of too low compensation in practice, it is suggested to clearly stipulate the breach clause in the contract. That is, if you continue to use the portrait without renewal at the expiration of the contract period, you should calculate the compensation according to the advertising endorsement fee within the contract period, or you can agree to double the compensation clause according to the autonomy of will, etc.