On The Legal Application Of The Protection Of One’s Property Interests Of The Portrait Right

According to traditional theory of civil law, the right of portrait belongs to the personality rights, witha specific, non-transferable and can not be inherited. The traditional theory, however, are faced with thechallenges of the modern portrait commercial use phenomenon. Portrait of a business use, making theportrait rights from the right to defense gradually developed into a use of the right of portrait showing thevalue of the property. With the development of market economy and the popularity of the mass media, onthe one hand, natural especially celebrities own portrait authorize others for commercial use (includingnatural death, the legal successor of the deceased portrait authorize others to commercial use) in order toobtain economic benefits;on the other hand, in the judicial practice of unauthorized portrait used forcommercial purposes in cases of unauthorized use of others (including the deceased) is also increasing. Inreal life, most of the cases about encroachment upon other people’s right of portrait associated withcommercial purposes, therefore, the scope of this study is limited in portrait commercial use in theapplication of law.Our court in dealing with such cases, both from qualitative cases to damages of judgment, in theapplication of the law, there are four problems: First, different attitude on whether to recognize and protectthe property interests of the portrait; second,reliance on mental damages, to ignore property damages;besides,determine the legal basis for property damages and calculate the standard is not unified; last,attitude towards on whether interests of deceased portrait property can be inherited ate different.The samecases the court will be a different outcome of the trial. Reasons for these problems, the reason is: First, the"Civil Law" in China and judicial interpretation does not recognize the right of portrait property interests;Second, Article20of the Tort Liability Act definition of "property damage" is not clear, in the calculationof loss the lack of operability; once again, the current legislation on the lack of interests of deceased portraitproperty provisions; Finally, our academic legal property of the property interests of the portrait clearlydefined, some scholars have adopted the theory of personality rights, another part of scholars adoptproperty rights theory.Infringe on portrait rights of property interests to apply the law correctly, it should be clear the legal property of the portrait of the right to property interests. Produce of the property interests of the portrait is aportrait commercial utilization of the results, the characteristics of the property interests of the portrait canbe seen through the portrait right property interests and property interests, portrait comparative analysis ofthe spiritual interests. The author of the legal nature of the property interests of the portrait rights defined,the adoption of the "portrait capability expansion say" connotation and power of the portrait advocatedexpansion, the expansion of the power of the portrait to include the use of power, and also determines theportrait the content of the right contains two parts of the spiritual interests and property interests. Thecomparative analysis of the mode of use of the law applicable in the property interests of the portrait byGermany and the United States, Germany and France metaright mode through the expansion of the existinglegal concept to protect the interests and the protection of the property interests of the portrait intopersonality rights framework resolved within the benefit of the right of personality development; publicityrights law in the United States model is a clear division of the spiritual interests and the interests ofproperty based, Privacy portrait of spiritual interests protected by the right of publicity portrait, commercialexploitation produce property interests. By drawing on the characteristics of the mode of application of thelaw in Germany and the United States proposed to improve the use of our property interests in the portraitlaws applicable recommendations: First, it should be clear portrait nature and effectiveness of licensingcontracts; Second, accurate positioning "Civil Law"100"for-profit" meaning; third, to expand the"property damage" in article20of the interpretation of "tort Liability Act" and improve the method ofcalculating the amount of property damages; fourth the law applies should balance property damages andcompensation for moral damage; fifth, improve the system of unjust enrichment law applies; sixth, the lawof succession should be a clear portrait of the deceased property interests can be inherited, and perfect theterm of protection of property interests of the deceased portrait.