A recent inquiry from a client at a leading film production company highlighted a critical issue: How can the unique persona of a star character be protected within the film itself? This question moves beyond the simple use of a heads hot, touching upon the very essence of how a celebrity commercial value is created and monetized. While public figures naturally attract considerable attention, their right to control the use of their likeness—referred to as portrait rights—is firmly protected under Chinese law. This legal framework carefully balances individual rights with the public interest, and missteps in this area can lead to significant legal and financial consequences.
Legal Framework: Protections and Boundaries
China Civil Code provides the foundation for portrait rights protection. It defines a portrait as any recognizable external image of a specific individual, whether captured through photography, sculpture, painting, or other media. The critical legal test is identifiable—if the public can recognize the person from the image, it is protected.
However, these rights are not absolute. The law permits certain exceptions for reasonable use, primarily when public interest is at stake. Such exceptions include legitimate news reporting, public oversight, or official government activities. The concept of a tolerance obligation is also applied to public figures, acknowledging that they must endure a higher degree of exposure than private individuals. Nonetheless, this is a narrowly defined concession that does not negate their rights; it simply adjusts the boundaries in specific contexts. For commercial entities, this distinction is critical: public interest exceptions rarely, if ever, apply to marketing or promotional activities.
Common Infringement Scenarios: Where Businesses Often Stumble
In practice, the most frequent and costly error companies make is the unauthorized commercial use of a celebrity likeness. The law is unequivocal: using a public figure portrait for commercial gain without explicit consent constitutes infringement.
A typical scenario involves an e-commerce platform or brand incorporating a celebrity photograph into product listings or promotional banners, creating the false impression of an endorsement. In a ruling by the Beijing Internet Court, a company was found liable for precisely this reason. The court held that by altering a celebrity photo to resemble a brand advertisement and pairing it with the celebrity name and a recommendation, the defendant had created a misleading association with the public figure, thus infringing upon both personal and commercial rights.
Similarly, using celebrity images in online content to drive traffic and commercial interest is a common pitfall. For instance, a WeChat public account that featured a famous director photograph to attract readers and promote its own services was deemed to have engaged in commercial use, not a journalistic one. The court ruled that such activity, designed to enhance the account visibility and profitability, required prior authorization and constituted a clear infringement.
Financial Risks: How Damages Are Calculated
When infringement is established, the financial consequences can be substantial. Calculating damages for the unauthorized commercial use of a portrait is not a simple formula; it is left to the court discretion, which considers a holistic set of factors.
Key considerations include the celebrity level of fame and the commercial value of their image—the more prominent the figure, the higher the potential compensation. Courts also scrutinize the nature of the infringement: how widely the image was used, for how long, and in what context? The defendant intent—whether the use was a deliberate strategy or an oversight—also plays a significant role. Finally, the reasonable costs incurred by the celebrity to halt the infringement, such as legal and investigative expenses, are factored into the final award.
This discretionary approach leads to a wide range of outcomes. For example, one court awarded 400,000 RMB in a case involving a highly famous celebrity whose image was used extensively in commercial promotions. In contrast, another case involving a lesser-known individual and more limited use resulted in an award of just over 3,000 RMB. This variability underscores the importance of a proactive compliance strategy rather than a reactive approach to litigation.
Strategic Recommendations to Minimize Risk
For any international company operating in China, the guiding principle should be one of caution and respect. The legal and reputation risks associated with misusing a public figure portrait far outweigh any perceived short-term marketing gains.
- First, always secure explicit, written authorization before using any public personality image for commercial purposes. This is the single most effective way to mitigate risk. Verbal agreements or assumptions based on prior practice are insufficient.
- Second, be rigorous in distinguishing between genuine news content and commercial promotion. Avoid presenting marketing materials in the guise of a news report or a public interest piece, as Chinese courts are adept at identifying such misrepresentations.
- Third, exercise caution even with publicly available photographs. While these images may seem freely accessible, the legal focus is on the context and purpose of their use. Any application that implies a commercial relationship or alters the image in a derogatory manner—such as creating offensive memes—can trigger liability.
In conclusion, while the tolerance obligation doctrine applies to public figures, it is a narrow legal doctrine with little relevance to commercial activities. For international businesses and media companies, the path forward is clear: treat a celebrity portrait as a valuable commercial asset that requires proper licensing. By implementing robust internal review procedures and prioritizing clear contractual agreements, you can confidently leverage celebrity influence in China while ensuring full legal compliance.