Be cautious with celebrity photos—Andy Lau sues Zhejiang company for "endorsement without consent," claiming 2 million yuan in economic losses
As an extremely influential figure in the Chinese music industry, Andy Lau has maintained immense popularity since his debut in 1981. Over 36 years in the entertainment industry, he has always been the center of attention. On December 28, 2018, during the 14th stop of his tour in Hong Kong, Andy Lau had to cut his performance short due to a throat inflammation issue. He announced the end of the concert, bowed and apologized tearfully to the audience, explaining that his voice was in poor condition and doctors advised him not to continue. He subsequently canceled all remaining tour dates and promised a full refund of ticket fees to all fans. This scene is still fresh in the memories of music fans and the public.
When Andy Lau's concert was terminated midway, both fans and friends in the entertainment industry expressed their support for him, trusting his character without any doubt. Andy Lau's success is truly indisputable. However, on February 25, another news story titled "Andy Lau 'Endorsed Without Consent' Sues Zhejiang Company, Claims 2 Million Yuan in Economic Losses" caught public attention. Andy Lau filed a lawsuit against a Zhejiang technology company for infringement of his personality rights, which was heard in open court at the Hangzhou Internet Court. The plaintiff demanded that the defendant publicly apologize and compensate for economic losses of 2 million yuan and reasonable expenses of 10,000 yuan. The Hangzhou Internet Court heard the case online through its litigation platform.
Portrait "infringed" (Image source: China News Service)
The plaintiff claims that from December 2016 to March 2018, the plaintiff and their agency discovered that the defendant used the plaintiff's portrait and signature on their water purifier products and packaging, and sold, advertised, and promoted the products on the defendant's official website and other websites. A large billboard using the plaintiff's portrait, name, and signature to promote water purifier products was also found in Changping District, Beijing. The defendant, for profit, without the plaintiff's permission or authorization, used the plaintiff's portrait, name, and signature on their products and packaging, deceiving and misleading consumers into believing the plaintiff was the defendant's endorser for water purifiers and related products. This caused irreversible damage to the plaintiff's commercial value for future endorsements of similar products and led to severe negative evaluations, greatly harming the plaintiff's mental and economic interests.
During the defendant's infringement of the plaintiff's right to portrait and name, the plaintiff and their agency repeatedly contacted the defendant via email or lawyer's letters to demand cessation of the infringement, but the defendant never responded and never stopped the infringing acts. Therefore, a lawsuit was filed. The case is still under further trial. It is reported that both parties expressed willingness to mediate in court; if mediation fails, the case will be scheduled for judgment.
Court trial scene (Image source: China News Service)
Zhiming lawyers compile cases of lawsuits due to misuse of celebrity photos
[2] Case One
In April 2016, a training company in Changzhou published an article titled "Chen Qiaoen is not only beautiful with a great figure, but also knows how to dress!" on its public account. The article mainly interpreted Chen Qiaoen's dressing style, accompanied by over 10 photos of her. Chen Qiaoen believed the training company used her photos without permission, attempting to leverage her influence and social recognition to promote the company's makeup training services. The company's actions infringed on her right to portrait and other legal interests, causing significant economic losses and adverse social impact. She sued the company. The court found that the company's purpose in publishing the article was for advertising, using Chen Qiaoen's fame to gain attention, clearly for profit. Ultimately, the court ruled in the first instance: the training company must immediately cease infringing on Chen Qiaoen's right to portrait and compensate her for economic losses (including reasonable expenses) of 50,000 yuan.
[6] Case Two
In 2015, a door and window company in Guangdong, without permission, extensively used Fan Bingbing's personal image as a profile picture on its official website and used her photo for promotion in physical stores, leading to a lawsuit filed by Fan Bingbing. Fan argued that the company, without authorization, used her photos for commercial promotion, potentially misleading consumers and seeking economic benefits. This not only lowered her social evaluation but also infringed on her right to portrait and reputation. She demanded the company cease infringement, issue a public apology, and compensate her for economic losses of 10 million yuan. The Beijing Chaoyang District People's Court ruled in the first instance that the company must stop infringement, apologize publicly, and pay Fan Bingbing 800,000 yuan in economic damages.
Many people enjoy being fans of celebrities, but most of the time they cannot meet them in person and can only look at their pictures. As a result, many people post images of their favorite celebrities on Weibo or WeChat. After learning about the right to portrait, they may worry. So, does casually posting a celebrity's photo constitute infringement of portrait rights? No.
So, what situations constitute infringement of portrait rights?
(1) Infringement of the exclusive right to create portraits
In photography, this refers to the entire process of fixing a natural person's appearance onto film, photographic paper, or other physical carriers, transforming the person's image into a portrait.
The content of the exclusive right to create portraits includes: first, the portrait owner can decide, based on their own needs or the needs of others or society, to create their own portrait or have others create it, and no one else may interfere; second, the portrait owner has the right to prohibit others from creating their portrait without their consent or authorization. Illegally creating another person's portrait constitutes an act of infringement.
(2) Infringement of the exclusive right to use a portrait
Once a portrait is fixed on a certain material carrier (produced), it becomes independent in the world and can be controlled and utilized by people. Although the use value of a portrait has universal significance, only the portrait right holder can enjoy the exclusive right to use it. Its basic content is: first, a natural person has the right to use his or her own portrait in any way, and through such use, obtain spiritual satisfaction and property gains, and others shall not interfere (but must not violate the law and public order and good customs). Second, a natural person has the right to allow others to use his or her own portrait and decide to receive remuneration from it (this requires equal negotiation with the user and signing a portrait use contract). Third, a natural person has the right to prohibit others from illegally using his or her own portrait.
(3) Infringement of the right to maintain portrait interests
Portrait interests are the exclusive personality interests of citizens, which others shall not interfere with or infringe upon. The content is as follows:
1. A citizen has the right to prohibit others from making his or her portrait without permission;
2. A citizen has the right to prohibit others from using his or her portrait without permission.
3. Citizens have the right to prohibit others from damaging, defiling, uglifying, or distorting their portrait.
In celebrity-involved portrait rights disputes: medical and beauty institutions have the highest rate of infringing on celebrity portrait rights, becoming the main source of such disputes, and they prefer to use female celebrities' portraits for promotion. Information technology companies follow closely in infringing on celebrity portrait rights, with cases generally involving unauthorized use of celebrity photos on their designed webpages for obvious commercial purposes. Therefore, knowledgeable lawyers advise business owners that using celebrity photos for promotion, even with just a hint of advertising in an article, constitutes commercial use, leading to a high probability of being sued by celebrities and paying compensation. Remember to use them with caution!!!
