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Co-published editorial
Kangxin Partners PC
Almost famous! Publicity and
image rights in China
There will always remain a fascination and admiration for those in public life – alive or dead. Similarly, there
will be always be distinct rules and practices to follow when using the image of another
While some celebrities are made, others are
born – such as China’s last feudal emperor,
Puyi. In recent years controversy has
surrounded Puyi’s image and publicity
rights, and the use and commercialisation
of a deceased celebrity’s image remains a
hotly contested issue.
According to Article 100 of the General
Principles of the Civil Law, the unauthorised
use of a citizen’s portrait for profit is
prohibited. This law is meant to protect
citizens by preventing another party from
capitalising on a person’s likeness or image
without proper consent. However, certain
limitations allow for near-unrestricted
exploi tation of another’s portrait,
encapsulated in China’s fair-use exception.
Under the fair-use doctrine, a celebrity or
individual’s image or portrait may be used to
report newsworthy subjects, such as
historical events or other notable
occurrences. This exception is limited to a
subjective requirement that care be
exercised at all times when displaying the
portrait or image. While this concept has not
been a djudicated, Chinese legal scholars have
concluded that all action should be taken to
preserve and respect a decedent’s image.
The case of Emperor Puyi
Several years ago, a public exhibition was
held of various personal effects belonging to
Puyi, including his abdication scripts,
personal diaries, photographs and special
items of clothing. The private exhibitors
charged a nominal fee for admission to the
exhibition which allowed the public to view
the various artefacts.
Puyi’s brother immediately filed a
lawsuit against the exhibitor and sponsor
for breach of Puyi’s image rights. The
lawsuit sought damages under Article 120 of
the General Principles of the Civil Law,
which states that if a citizen’s rights to his or
102 World Trademark Review October/November 2012
her personal name and or portrait are
exploited without prior consent, the
damaged party can:
• seek financial compensation;
• request an apology from the infringing
party; and
• demand immediate cessation of all
infringing activity.
While Puyi was a public figure of
historical significance, the question of
whether a third party could capitalise and
profit from his image came to light. The
defendant claimed that Puyi was a person of
great importance and that it was imperative
that all Chinese citizens had an opportunity
to attend the exhibition and learn more
about China’s last emperor. The case was
decided in the defendant’s favour. On
appeal, Beijing Intermediate People’s Court
No 2 found that “Puyi was a public figure
whose life was closely connected with
China’s history and these rights were in the
public domain”.
Analysis
The Puyi case questions the extent to which
the law protects the image and portrait of
deceased celebrities and public figures. As
a general rule, once a public figure has
passed away, no one can claim ownership of
his or her rights. Neither family, spouse nor
estate can mandate or prevent the
continued use or exploitation of the
decedent’s image or portrait.
Some fairly nebulous issues must be
taken into account in this regard. As
mentioned above, Article 100 protects all
citizens by granting them rights over their
own image/portrait without exploitation by
another party for profit. In order for another
party to profit from an individual’s image,
his or her express consent must be obtained
in advance. In the case of a living public
figure, consent can be given; however, a
deceased public figure obviously does not
have the capacity to consent to the use and
exploitation of his or her image.
The second issue concerns China’s fairuse exception. While almost all newsworthy
events fall within the fair-use exception, it is
unclear whether deceased public figures are
covered by this potential catchall. While
some could argue that all public figures are
newsworthy and that the public has a right
to full access and disclosure, there is little
judicial insight as to how the law is
interpreted regarding exploitation of a
decedent’s image for commercial purposes.
China’s interpretation of
‘newsworthiness’ has been construed
extremely liberally in recent years, as the
country continues to push towards a more
transparent and open society. A recent case
involving published photographs of two
public figures receiving an award from a
pharmaceutical company was held not to
have infringed the plaintiffs’ image rights.
The court stated that the event had been
held in public and mere attendance of the
event constituted consent. Moreover, the
court stated that the award ceremony
constituted a general public affair, and that
the defendant had no intention of
exploiting the images for commercial gain.
The final issue regarding fair use is the
requirement that one exercise care and do
everything possible not to harm the public
figure or his or her image. In the Puyi case the
plaintiff argued that the exploitation of Puyi’s
image rights had “dealt a great psychological
blow to his family”. There is little evidence to
suggest that the exhibitor intended to harm
Puyi’s family. The family’s main complaint
centred on the fact that the exhibitor was
profiting from Puyi’s former possessions and
photographs. The family felt insulted and
requested a public apology. However, as
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Country Correspondent: China
mentioned above, the court found it in the
public’s best interest to allow the use and
exploitation of Puyi’s portrait and image,
paving the way for future precedent.
Most countries allow the free use and
dissemination of a public figure’s image
after death. One notable exception is the
United States, where several states provide a
statutory time period for which image
rights remain protected. However, this is the
exception rather than the rule. Although no
actual ruling has been issued on the matter,
it appears that China will follow suit.
Conclusion
Puyi was China’s last emperor and the last
connection to the country’s imperial past.
There remains tremendous public interest
in Puyi and his life inside the Forbidden
City. Countless people flock to his former
home, eager to learn about his trials and
tribulations. Therefore, it is little wonder
that the law favours full and outright
disclosure of his image.
There will always remain a fascination
and admiration for those in public life – alive
or dead. The public is inevitably interested in
people who invoke great change or who
capture people’s hearts. Full and total
disclosure is the only way to ensure that
celebrities and well-known figures alike live
on forever in the public eye. WTR
www.WorldTrademarkReview.com
Aaron D Hurvitz
Of foreign counsel
[email protected]
Aaron D Hurvitz joined Kangxin Partners,
PC in 2009 as of foreign counsel and is
responsible for advising Kangxin’s foreign
clients on IP law in China. Mr Hurvitz
frequently gives lectures around the
world, focusing on anti-counterfeiting
and IP enforcement, and provides advice
on doing business, licensing technology
and commercialising intellectual property
in China.
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