Celebrity Legal Relief For Infringement Of Rights

From the General Provisions of the Civil Law to the Tort Liability Law, the transition from the abstract development of the rights and interests of a natural person to a definite one represents the shift of the focus of the legal concept from the protection of the property to the protection of the rights and interests of a natural person in modern China, which provides a more specific definition of rights and interests for judicial judgments and a basis for judicial relief. In the Tort Liability Law, it provides for the first time that compensation can be made in accordance with the loss of the infringed or the benefits gained by the infringer if the infringement of portrait right led to the loss of the property of a party. However, because of the limitations of the statute law and the particularity of a person’s rights and interests, only two standards are raised in this regard, instead of elaborating the specific ways to calculate and weigh the patterns and the amount of the compensation. So provisions in the Tort Liability Law do not give much guidance in the protection of the rights and interests in a pragmatic way. The celebrities who often draw our attention are frequently infringed in their portrait right. Lots of cases show that illegal profits are obtained by exploiting their public popularity. Thus, it is necessary that celebrities’portrait right should be fully protected.Besides introduction and conclusion, this paper consists of three parts:The first part elaborates the necessity of protecting citizens’portrait right. In this part, cases are presented to show how the low compensation fed the growth of similar infringement, did damage to the rights and interests of the plaintiff, exerted negative impact on efforts steered to protect citizens’rights and interests and even spoiled China’s image on the international stage.In the second part, by putting focus on flaws of the system of the protection of the citizens’portrait rights, the author analyzes disadvantages of the General Provisions of the Civil Law, the Tort Liability Law, anti-unfair competition law and copyright law in the protection of the citizens’portrait rights.In the third part, the author mainly elaborates how to improve the system of the protection of the citizens’portrait rights. By comparing the establishment of the infringement of the portrait right and the loss caused by it, the author sets forth the limitation of the protection of the portrait rights in China from the perspective of commercial value and commercial utilization by quoting the right of publicity studied in the United States and points out the flaws of the system of the protection of the citizens’portrait rights in China. And then the author elaborates from two aspects of infringement-related laws and regulations how to ensure the monetary loss arising from the infringement and the illegal benefits obtained from the infringement. In addition, the author clarifies two aspects we should pay attention to when rightly exercising the right of discretion from the perspective of the right of discretion in the Tort Liability Law. the burden of proof and the issue of how to adjust the compensation in light of the time and scope of the infringement. By paying attention to these two aspects, the judicial fairness can be better displayed by exercising the right of discretion.New ideas are brought forth as follows:The author makes an in-depth study of the infringement of celebrities’portrait right in light of the implications exerted in relevant provisions in the Tort Liability Law and the breakthrough by abiding by the Tort Liability Law. In this paper, it is hoped that specific and direct calculation methods can be raised for two standards provided by the Tort Liability Law. In addition, the advantages and disadvantages of these two standards should be weighed and at the same time the time and scope of the infringement should be considered when exercising the right of discretion so that relevant provisions can be determined for the reference in judicial practices.