On The Commercial Use Right Of Portrait

In recent years,the commercial use right of portraits has brought considerable economic benefits,making it a hot topic in theoretical and practical circles.The commercial use rights of portraits can expand people's property income and has increased the people's property income.Therefore,from the theoretical point of view,it is important to recognize the commercial use right of portrait and establish the idea and the system.At present,the main divergence of the theoretical circles in our country lies in the legal nature of the commercial use rights of portrait.It is divided into two viewpoints.The scholars' interests,which are represented by Mr.Wu Han dong,advocate the commercialization of the portraits.The property interest is consistent with the connotation of property rights.He thinks the commercial use right of portrait is a new type of property rights.And more and more scholars support the commercial use right of portrait is a kind of independent control and decision-making power of personality right.The property interest can be absorbed by personality right,and portraits of personality interests influence each other,interact with each other.The theory of personality right from essence of the personality right show the commercial use right of portrait can be included in the personality right,elaborating the essence of the commercial use right of portrait more thoroughly.The two theories by contrast,The theory of personality rights is more illustrative of the essence of the legal nature of the commercial use of the portrait.In the legislation,‘article 100 of general principles of the civil law' doesn't clearly understand property interest of the commercial use right of portrait and the application of the damages.‘Article 20 of Tort liability law's understanding and application is not small controversy,Thus resulted the situation that the similiar cases have different results,such as Liu Xiang case.What are also applicable to the main body is not clear,lack of basis for the transfer portrait and licensing of the portrait,not recognizing the commercial use right of portrait can be inherited,different damages standards.These should be improved in the following aspects,the main body,should not be limited to the subject of celebrity rights,should be the main body of the rights extended to the general public.Transfer and licensing,confirms portrait transfer and and licensing in the contract is the power of portrait rights,and is not divorced from the holder of portrait rights' control.Once the infringement to the right of the Spiritual interests,the holder of portrait rights also can use this as reason to cancel the contract.The contract license is divided into two types: exclusive license contract and non-exclusive license contract.In the case of inheritance,after the heir's death,in order to protect the personal interest of the heir and the licensee's succession,the heir can inherit the right and manage it as a manager commercial use right of portrait.On the restrictions on the commercial use right of portrait,the commercial use right of portraits is subject to the restrictions of Public order and freedom of speech,in the form of relief,in addition to the "tort law" under Article II of the requirements of the tortfeasors bear tort liability,but also with unjust enrichment and no reason for management,requiring s infringement of people to return the interest.