Wu Jing angrily sues "Wolf Warrior" for the sake of his own "face"
Compiled from: Red Star News, China Judgments Online
Case review
Wolf Warrior Company used Wu Jing's portrait on betel nut packaging without his permission, with the caption "Wu Jing, star of the movie 'SPL', supports the Wolf Warrior brand." Distributors also posted related ads on short video platforms.
In June 2020, after discovering this, Wu Jing believed that Wolf Warrior Company had infringed on his right to portrait and name, and sued them at the Beijing Internet Court.
Wu Jing's demands were: ① Wolf Warrior Company must immediately stop producing, selling, using, and recall and destroy related product packaging and promotional ads; ② publish an apology in the newspaper; ③ pay a total of 1.12 million yuan (1 million yuan for economic losses, 100,000 yuan for moral damages, and 20,000 yuan for reasonable legal expenses).
Wolf Warrior Company argued: ① Wu Jing does not hold the rights to the stills from the film "SPL"; ② Guangdong Zhongkai Cultural Development Co., Ltd. has the legal copyright to the work, and Wolf Warrior Company signed an agreement with the authorized Guangzhou Baiyue Planning Co., Ltd. If infringement occurred, the responsibility should lie with these two companies; ③ the use of posters and stills would not lead consumers to mistakenly believe the plaintiff was the defendant's product endorser.
The court of first instance
The Beijing Internet Court ruled in the first instance that the images used by Wolf Warrior Company were personal photos of Wu Jing, clearly showing his face with high recognizability, constituting infringement of Wu Jing's right to portrait and name. As a well-known actor, Wu Jing's portrait and name have commercial value, and others cannot use them for profit without permission.
The court ruled that Zhanlang Company must compensate Wu Jing for economic losses of 340,000 yuan and notarization fees of 2,000 yuan, totaling 342,000 yuan; Zhanlang Company must immediately stop producing, selling, using, and recall, remove, and destroy products and promotional materials containing Wu Jing's portrait and name; Zhanlang Company must publish an apology to Wu Jing on the prominent position of its online store homepage for seven consecutive days. Zhanlang Company refused to accept the judgment and appealed.
The court of second instance
The Beijing Fourth Intermediate People's Court mentioned during the second instance that copyright related to film and television works does not conflict with the right to portrait. The carrier of a portrait includes stills, and "performance image is also a form of portrait presentation." Zhanlang Company claimed it had obtained partial copyright of the film "S.P.L.," but the relevant contracts provided were insufficient to prove that the products in question had obtained authorization to use Wu Jing's portrait and name.
Ultimately, the court dismissed the appeal and upheld the original judgment.
Civil Code of the People's Republic of China
Article 1018
A natural person enjoys the right to likeness and has the right to legally make, use, disclose, or permit others to use his or her own likeness.
Article 1019
No organization or individual may infringe upon another person’s right to portrait by means of vilification, defacement, or falsification through information technology. Without the consent of the portrait right holder, no one may produce, use, or publicly disclose the portrait of the right holder, unless otherwise provided by law.
Without the consent of the portrait right holder, the owner of the portrait work may not use or publicly disclose the portrait of the right holder by means of publication, reproduction, distribution, rental, exhibition, or other means.
[1] The author's perspective
The right to name and the right to portrait of a natural person are protected by law. Without the consent of the portrait owner, the portrait of the portrait owner shall not be produced, used, or made public. If the right to name or the right to portrait of a natural person is infringed, the person has the right to demand cessation of infringement, restoration of reputation, elimination of adverse effects, apology, and may also demand compensation for losses. In this case, Zhanlang Company used Wu Jing's name and portrait on its Taobao store without his permission, which constituted an infringement of Wu Jing's right to name and right to portrait. Wu Jing has the right to demand that Zhanlang Company cease infringement, eliminate adverse effects, apologize, and may also demand compensation for losses.
The right to portrait refers to the right of a natural person to reproduce, use, or permit others to use their own portrait, with carriers including portraits, life photos, stills, etc. Stills involve characters played by performers in film and television works. When the general public associates the performance image with the performer's actual facial features, the performance image is also a form of portrait presentation. Therefore, copyright related to film and television works does not conflict with the right to portrait. Wu Jing is a well-known actor, and his name and portrait have certain commercial value. Zhanlang Company's unauthorized use of Wu Jing's name and portrait to promote its products for profit is illegal. Thus, the court's ruling that Zhanlang Company must compensate for losses, cease infringement, and apologize to Wu Jing is lawful and reasonable.
