Use of publicly available images of actors for artistic appreciation does not constitute infringement of right to likeness
The Beijing Internet Court (BIC) recently concluded a network tort liability case where a company (the defendant) used published stills of an actor (the plaintiff) on its WeChat account for appreciation and commentary purposes. Ruling that the usage was appropriate and did not infringe upon the plaintiff's right to likeness, the BIC rejected all the claims by the plaintiff. The verdict is now in effect.
The plaintiff surnamed Wang, who is an actor and model, played parts in many film and television works. The defendant, a cultural company, owns the WeChat official account in dispute. The plaintiff found out the defendant published an article on its WeChat official account and used two portrait photos of the plaintiff in a TV show. The page view of the article was 243 and the QR code of the WeChat account was attached at the end of the article. Assuming the defendant intended to use the photos to attract viewership and generate profit, the plaintiff claimed that the defendant infringed upon the right to likeness and requested an apology and compensation of 200,000 yuan ($29,880) for economic loss and 3,000 yuan for expenses.
The defendant argued that the four photos in the article in dispute were all screenshots from the TV show instead of the plaintiff’s life portraits. Therefore, the plaintiff did not have any claim over the screenshot photos, which should belong to the television producer.
Use of the screenshot photos for introduction and commentary purposes of the show was appropriate, according to the Copyright Law. It would not damage the interests of the party involved; rather it was a support for the show itself. The article in dispute had no commercial purposes. There was no profit gained from advertising and viewership, and the article generated very limited viewership and no forwarding or likes. The defendant therefore argued that the court should reject all claims from the plaintiff.
After trial, the BIC concluded that:
The roles in television shows are embodied by actors. When screenshots are taken from the show, the likeness of the role usually coincides with the likeness of the actor. In this case, the public could associate the likeness of the role with that of the actor. Therefore, the plaintiff did enjoy the right to likeness over the screenshot photos of the show and was entitled to file the suit.
Two points need to be considered when deciding whether the use of the photos was appropriate. The first was whether the content of the article in dispute was beyond the television show. The evidence showed that the content was all about the show itself and did not involve any personal information about the actor. Second, whether the number of photos used in the article was appropriate. Among all the four screenshot photos in the article, two depicted the plaintiff’s likeness. And each photo was marked with the role’s name and the corresponding actor’s name. The BIC decided that the citing of the photos was regular usage to illustrate the points raised in the article. Furthermore, there were no advertisement links or product marketing messages in the article.
Based on the above mentioned, the defendant’s usage of the published stills of the actor out of necessity for appreciation and commentary purposes was appropriate and did not infringe upon the plaintiff’s right to likeness.
Details of the judgement:
The BIC rejected all the claims of the plaintiff.
Tips from the judge:
This case involves two aspects for consideration: rights and their ownership concerning screenshots of film and television works containing likenesses of actors, and the appropriate use of the right to likeness.
1. Rights and their ownership concerning screenshots of film and television works containing likenesses of actors
Screenshots of film and television works containing likenesses of actors involve the producer’s copyright and the actor’s right to likeness. If the screenshot is used for commercial purposes, authorization needs to be sought from both the producer holding the copyright and the actor holding the right to likeness. The dynamic images of film and television works are fundamentally comprised of still images and reflect originality. Therefore screenshots from those works should also be deemed as photographic works, the copyright of which is held by the producer.
Whether the actor has the right to likeness of the image of the role in the screenshot depends on the identifiability or closeness of association between the likeness of the role and of the actor. If the audience can identify the actor from that role and establish certain associations between the two, then the actor has the right to likeness of the image of the role.
2. The appropriate usage of the right to likeness
All rights, including the right to likeness, have their boundaries. As a personal right, the right to likeness could clash with social public interests or someone else’s interests. Article 1020 of the Civil Code lists five acts which can be performed without the consent of the person holding the right to likeness. The first act is “using publicly available images of the person holding the right to likeness to the extent necessary for personal study, art appreciation, classroom teaching, or scientific research”. There are two key phrases here- “to the extent necessary” and “publicly available”. Therefore, under certain circumstances, reasonable use of images which helps to elevate personal artistic accomplishments or contributes to scientific and cultural development does not require consent from the person holding the right to likeness.