After being in love for years, Mr. Dong and his girlfriend decided to get married. To create a good memory of their wedding, Mr. Dong found a wedding company.

However, a month after their wedding, the couple found on several social media platforms their wedding photos and videos. How did that happen?

Recently, the Shanghai Fengxian District People¡¯s Court (hereinafter referred to as ¡°Fengxian Court¡±) concluded this case.

[Case Review] 

In November 2022, Mr. Dong signed a Wedding Ceremony Service Contract with Meixin Culture Company (hereinafter referred to as ¡°Meixin¡±), under which Meixin should provide wedding services for Mr. Dong, including emcee, makeup, photography, videography, wedding reception layout, etc.

In March 2023, Mr. and Mrs. Dong held a wedding ceremony.

In April 2023, Mrs. Dong accidentally found on social media that Meixin had posted their wedding photos and videos, which contained her and her husband¡¯s portraits, names, and the wedding date. The photos and videos were posted the day after the wedding.

Mr. Dong then tried to check the wedding planner¡¯s WeChat Moments and found that he was blocked from seeing it. The wedding planner allowed strangers to view ten Moments, so Mr. Dong used a family member¡¯s WeChat to check it out. And he saw that his wedding photos and videos were posted the day after his wedding.

Soon, the couple saw their wedding photos and videos on another social media platform...

Mr. Dong believed that he and his wife were made an ¡°Internet hit¡± without their consent; he had those photos and videos recorded and notarized, and then went to the Fengxian Court, claiming that Meixin had violated his portrait rights and requesting Meixin to: 1. Apologize to them; 2. Stop the infringement immediately and delete all their wedding photos and videos on the Internet; 3. Compensate for their losses.

In the trial, Meixin argued that the wedding planner had told Mr. Dong in the beginning that the company would use some of the good wedding photos and videos for its business promotion, and Mr. Dong had verbally agreed. So Meixin did not use the photos and videos with a bad intention; it was entitled to use them. It did not agree with the plaintiff¡¯s claim.

After receiving the summons served by the court, the defendant Meixin immediately deleted the plaintiff¡¯s wedding photos and videos posted on WeChat Moments and other online platforms. With the mediation of the court, the defendant apologized to the plaintiff in court and promised not to publish or use the photos and videos on any platforms or occasions in the future. The plaintiff then withdrew the first and second claims in court. But the two sides could not agree on the amount of compensation.

[Case Study]

According to the Fengxian Court, there are two focuses in this case: one, whether the defendant¡¯s behavior constitutes an infringement of the plaintiff¡¯s portrait rights; two, how the defendant should bear liability if the infringement is established.

As for the first focus, the defendant took and produced the plaintiff¡¯s wedding photos and videos; and as the owner of the portrait works, it may not publish those works without the consent of the portrait right holder. According to the facts ascertained, the defendant posted pictures and videos containing the plaintiff¡¯s portraits on WeChat Moments and some other online platforms for the purpose of publicity, sales, and business promotion. More potential customers would be attracted to choose its service and it can thus gain more interests.

The defendant argued that it had done so with the permission of the plaintiff, but it did not provide evidence to prove it, so the Fengxian Court would not accept this. Therefore, the defendant¡¯s behavior of posting the plaintiff¡¯s photos and videos through the channels mentioned above constitutes an infringement of the plaintiff¡¯s portrait rights.

As for the second focus, when a natural person¡¯s personality rights or interests such as the right to portrait are infringed, resulting in damage to the person¡¯s personal interests or property interests and mental distress, the person may request compensation for mental distress according to law. In this case, the plaintiff did not provide evidence to prove the amount of losses caused by the defendant, nor did he provide evidence to prove that the defendant had profited from the behavior. The court should make a discretionary determination based on factors such as the motivation, duration, scope, and consequence of the defendant¡¯s infringement, the necessary marketing costs reduced by the defendant, and the reasonable expenses paid by the plaintiff to stop the infringement.

Accordingly, the Fengxian Court considered the subjective and objective circumstances of the case, combined with the opinions of both parties, and ordered the defendant to pay the plaintiff 3,000 yuan in compensation.

(All names mentioned here are not real.)

The portrait right refers to the natural person¡¯s right to produce, use, and publish according to law their external image that can be identified. Natural persons enjoy the portrait right and have the right to make, use, publish, or permit others to use their portraits in accordance with the law. No organization or individual may vilify, deface, or use information technology to forge or other means to infringe upon the portrait right of others.

1. Use of the portrait right shall comply with the law

According to the law, there are five circumstances in which a portrait can be reasonably used without the consent of the portrait owner:

(1) Use, to the extent necessary, a portrait already made public by the owner for personal study, artistic appreciation, classroom teaching, or scientific research;

(2) Make, use, or publish a portrait inevitably for the purpose of news coverage;

(3) State organs produce, use, and publish within the necessary scope a portrait to perform their duties according to law;

(4) Make, use, and publish inevitably a portrait for the purpose of displaying a specific public environment;

(5) Make, use, and publish a portrait to safeguard the public interest or the lawful rights and interests of the portrait owner.

2. A natural person¡¯s portrait right shall be effectively protected

One may infringe on people¡¯s portrait rights if he takes photos and videos of people without their consent and posts them on WeChat Moments, in WeChat groups, and through other social media channels. For example, ¡°street photography¡± is quite popular these days; but do not take photos of people without their permission. And even if someone agrees to be photographed, you should ask for their permission before making their pictures public. A lot of Internet memes are based on people¡¯s portraits, and may be identified as infringement if they are used without the consent of the portrait owners and do not meet the requirements of the legal provision that ¡°a portrait can be reasonably used without the consent of the portrait owner¡±.

3. People should be guided to abide by the law

A client commissions the studio to take their photos and videos, the studio should deliver the photos, videos and corresponding negatives or electronic data to the client as agreed; and the photos, videos and negatives shall be owned by the client upon delivery. The studio and the client can agree on the ownership of the copyright of the photos, negatives or electronic data; and if there is no explicit agreement, the copyright shall belong to the studio. But even as the right holder of the portrait works, the studio shall not use the works without the portrait owner¡¯s authorization, otherwise it may infringe the person¡¯s portrait right and the victim can request compensation according to law.

[Relevant Laws]

Civil Code of the People¡¯s Republic of China

Article 179 The main ways of bearing civil liability are:

(1) Ceasing the infringement;

(2) Removing obstacles;

(3) Eliminating risks;

(4) Returning the property;

(5) Returning to the original state;

(6) Repairing, remaking, or replacing;

(7) Continuing to perform;

(8) Compensating for losses;

(9) Paying liquidated damages;

(10) Eliminating impact and restoring reputation;

(11) Making an apology.

Where the law provides for punitive damages, such provisions shall prevail.

The ways of bearing civil liability provided for in this Article may be applied separately or jointly.

Article 1182 Where a person¡¯s personal rights and interests are infringed upon and the person suffers property losses from it, the compensation shall be made according to the losses suffered by the victim or the benefits gained by the perpetrator. If it is difficult to determine the loss suffered by the victim or the benefits gained by the perpetrator, and the two parties do not agree on the amount of compensation through consultation and thus bring a lawsuit in a people¡¯s court, the people¡¯s court shall determine the amount of compensation according to the actual situation.

(By Chen Bei and Mao Zhenya, Fengxian District People¡¯s Court)