Research On The Tort Liability System Of The Cosmetic Star Face Commercial Utilization

The major content of this paper focused on analyzing portrait tort system of cosmetic superstar face, and elaborating the definition, the performance and characteristics of star face infringement from the angle of commercial use in the personality traits of celebrity portrait. Under today’s economy market, given that the cosmetic industry is becoming a new emerging industry, its existence and development is still not fully regulated by the law which leads to constantly emerging various of rights protection problems that are difficult to be solved.This paper is divided into five parts, the first part is mainly focused on the exact definition and the characteristics explanation through the analysis of the various manifestations of the phenomenon of the commercial use of cosmetic superstar face. By listing some practical cases, it makes the readers thoroughly understanding about this unique social phenomenon in commercial use of cosmetic face.The second part is to induct the described phenomenon of infringement in the first part, introduce from the type and the interests of infringement, analyze the general constitutive requirement of liability for tort and place greater focus on the interest types that is the most important part of this article.Because in some extent situation, the infringement of legal interests determines the type of it, and in view of the fact that this infringement is quite complicated, this section has important reference value in the application of tort law.The third part is an introduction of our current legislation which is imperfect. Since there has only specific provisions on the right of personality portrait, reputation and privacy in China until now, and no detailed regulations to protect the commercial interests behind the star personality traits, it is very difficult for a star to safeguard their legal rights.The fourth part is to sort out the violations of applicable foreign regime about star face cosmetic commercial utilization, in which the United States’privacy and publicity mode is the most typical one.The protection of portrait in privacy rights is reflected in providing legal relief for those plaintiff who has experienced emotional distress for the unauthorized commercial exploitation by others. The right of publicity means that the people who has the economic value caused by publication is under the protection of publicity right. The production of public value requires to take considerable practice, effort, skill and money. The reason why the Stars Portraits has the high added value is that it comes from a star’s intellectual labors for many years, which has become an identified interests accompany with the star’s gradually well-known, the interests not only contain their personal interests, but also include the property interests. Therefore, the loss arising from violations is twofold. The independent rights of privacy and publicity makes their scoping clear, in the case of the portrait commercial utilization of personality traits, the consensus about protecting mode in most states of United States is:the section refers to personal interests is under the protection of privacy right, however, the section refers to the property interests is under the protection of publicity right. In addition, the counterfeit infringement system in British, the misappropriation of personality traits tort system in Canada and the general personality regimes in Germany all provide a guideline for the construction of the relative system in China. That is to find a personality which can accommodate the interests of the right type and give centralized protection for the decentralization of the infringement violations without missing rights.The fifth part is the views from the author of this article on the construction of the proposed system. In our current legal environment, we should clearly defined the need of special protection for the star personality traits (especially portrait), combined with analyzing the justifying reasons of star portrait commercial utilization, improve the defect in the existing legal system. On the basis of accurately identification of this kind of infringement, we should perfect the protection mechanism for the star portrait; establish the main subject of legal responsibility of infringement; build the responsibility principle based on the fault presumption; clarify the principle for tort damage and so on. While providing the rationalization proposals for the cosmetic industry, we can truly maintain the human dignity regulated by constitution inviolable and also promote the social harmony.