In the internet era, it is increasingly for companies to use employees' portraits and names, especially in works created in the course of employment that incorporates personal elements, for commercial purposes. Can an employer continue to use such content after the the employment relationship ends? The Beijing Internet Court (BIC) recently adjudicated a network tort liability case, clarifying the relationship between the copyright of works created in the course of employment and personal rights and personality rights, and drawing a clear line between employers' rights to use employees' portraits and names during and after employment.  

Case summary

The plaintiff was previously a senior accordion instructor employed by Company A, the Defendant A. After resigning, the plaintiff discovered that Company A and its affiliated Company B (also Defendant B) had posted videos containing the plaintiff's portrait and name on multiple social media platforms to sell accordion instruction courses in the form of "pseudo- livestream". The promotional content claimed that "students signing up will be personally taught by the dean (the plaintiff), the vice dean and top masters throughout the course". Viewers who clicked on the videos were directed to the payment page displaying an "master teaching agreement" signed with the plaintiff's name. The course attracted a large number of buyers, many of whom later expressed dissatisfaction upon learning that the actual instructor was not the plaintiff.

The plaintiff has repeatedly contacted the platforms involved to request the removal of the videos and reported to the market regulatory authorities that the defendants' advertising was misleading. The plaintiff also demanded that the two defendants cease the infringement and provide compensation. Both defendants refuted this, citing copyright ownership and claiming the videos had been taken down. The plaintiff then sued the two defendants at the BIC, claiming that the two defendants had infringed upon the plaintiff's rights to the portrait, name and reputation by continuing to use the elements for commercial purposes without authorization from the plaintiff. The plaintiff requested an injunction, public apology, and compensation for the losses and related expenses.

Defendant A argued that the labor contract signed with the plaintiff and the employee handbook specified that the works created by the plaintiff during the course of employment were works owned by legal entity, and the copyright belonged to the Company A. Moreover, the remuneration paid by Company A included consideration for intellectual property, and the plaintiff had waived relevant moral rights. Company A held the copyright of the videos in dispute which included the plaintiff's portrait. Therefore Company A did not commit an infringement. Furthermore, the administrative penalty decision made by the market regulatory authority said that the infringing party was Company B, not Company A.

Company B argued that it had taken down the videos involved in the case the day after the plaintiff's resignation, and publicly announced the plaintiff's resignation in a prominent part of its official website in order to eliminate any negative effect. It asserted that its use the videos was aimed at generating business opportunities through positive video content, which would not infringe upon the plaintiff's personal rights. It further argued that the plaintiff's claims for compensation for losses and emotional distress lacked supporting evidence support. 

After trial, the BIC determined that:

- Both defendants' infringed upon the plaintiff's rights to the portrait and name

In this case, the labor contract between Company A and the plaintiff explicitly designated the plaintiff as an accordion instructor, responsible for streaming courses for the company at its online platform. Company A was authorized the company to release these teaching videos and the plaintiff was remunerated accordingly. The videos involved were produced during the employment period. Both parties agreed in the contract that the copyright of the works created during the course belonged to Company A. While the contract did not include specific clauses about the use of portraits and names, the agreement on copyright ownership implied such authorization, and absent other provisions, the authorized usage period should align with the term of employment.

When the labor relationship between the two parties terminated, no further agreement was reached regarding continued use of the portrait and name, therefore the legal basis for authorized use of the portrait and name no longer existed, and any continued use should be deemed unauthorized. Therefore, the fact that the two defendants continued to release the videos on multiple platforms and promised in the "master teaching agreement" that the plaintiff would be on duty and attached the plaintiff's signature lacked factual and legal basis, constituting infringement of the plaintiff's rights to portrait and name.

- The defendants did not infringe upon the plaintiff's right to reputation

Infringement of right to reputation typically requires conduct that constitutes insult or defamation and causes misunderstanding among the public and leads to decline of social evaluation of the party infringed upon.

In this case, although the plaintiff claimed that some students attributed the misleading promotion to the plaintiff, and that it damaged the plaintiff's industry reputation, the available evidence failed to prove that the defendants acted with defamatory intent or that the plaintiff's social standing suffered a measurable decline. Therefore, it did not constitute an infringement on the right to reputation. 

Details of the judgment

The BIC's judgment of first instance ruled that the two defendants should make public apology to the plaintiff via the involved platform accounts and compensate the plaintiff for economic losses of 20,000 yuan ($2,780). The rest of the plaintiff’s claims were dismissed. The judgment has now taken effect.

Tips from the judge

In employment relationships, companies often make agreements with employees on the copyright ownership of works created during their employment. However, when employees "appear on camera" or "sign their names" in such works, their personality rights are also implicated, something often overlooked. The ownership of copyright and authorization of personal rights are legally distinct. Personal rights, such as right to portrait, are inherently personal exclusive, and their use requires clear contractual authorization or reasonable inference; such authorization cannot be assumed under copyright provisions alone.

Generally, during the period of the employment relationship, an employee's inclusion in visual or signature-bearing content created during the course of their duties may be considered implicitly authorized for use by the employer. However, upon termination of the employment relationship, continued use of such content without separate agreement may constitute infringement. For example, when a company  use an ex-employee’s photos in promotional materials or continues to distribute audio-visual content beyond the originally intended scope or purpose.

The judgment in this case strikes a balance between the autonomy of will between the employer and the employee and safeguarding the personality rights and interests of individuals. It provides clear legal guidance for businesses regarding the authorized use of employees' personality rights such as portraits and names during their employment and after their employment relationships end.