Whether an Employer could use the Promotional Video involving Ex-employee’s Portrait?

Chen was the executive chef of Company H, and the model of H’s promotional photos, posters and videos, in which he wore a chef’s uniform, holding a plate of Hainanese chicken or a bowl of Hainanese chicken rice. After resigned, he found those promotional materials were still presenting on internet, so he filed a lawsuit against H with the claim that H had infringed his portrait rights. H defended that Chen was aware that it would use those promotional materials, and he had not raised any objections, so it did not constitute an infringement of portrait rights. Chen argued that he had cooperated with H to make those promotional materials, however, such cooperation should not be deemed as he had unconditionally authorized H to use his portrait. So whether H could use those promotional materials after Chen had resigned?

This case occurred before the implementation of the “Civil Code”. At that time, only Article 100 of the “General Principles of Civil Law” has prescribed the portrait rights, which says citizens enjoy the right of portrait, a citizen’s portrait may not be used for the purpose of obtaining a profit without the permission of the citizen himself.

In this case, the Shanghai Xuhui District People’s Court and Shanghai No.1 Intermediate People’s Court held that, “In these promotional materials, Chen was wearing a chef’s uniform with H’s trademark, and holding a plate of Hainanese chicken for display, in addition with Chen’s designed body movements and facial expressions, the promotional materials showed that Chen, as the executive chef, had followed the producer’s requirements to make those materials for the purpose of company promotion, the audience should be consumers or foodies, and those photos and videos would be displayed to those audience, so Chen should be aware of this result and voluntarily to do so. It should be presumed that H had obtained Chen’s authorization for using his portrait. However, the time limit for such authorization should be terminated on the date when Chen resigned. Because after an employee resigned, the employer lost the authorization derived from employment. In addition, it did not pay for use of the ex-employee’s portrait, so it failed to obtain an authorization derived from commercial contract. (R.E. (2020) Hu 01 Min Zhong No. 7158)

However, in judicial practice, the judgment rules are not completely consistent. For example, in (2016) Jing 0115 Min Chu No. 8355 Judgment, Beijing Daxing District People’s Court stated that, “Although the defendant had obtained consent of the plaintiff for filming, it did not provide sufficient evidence to prove that such consent could be extended to uploading the video to Youku, which is a website for the public; in addition, the purpose of such uploading was promotion for obtaining economic benefits, so the court determined that the defendant had used the plaintiff’s portrait for profit without the plaintiff’s authorization, which had infringed the plaintiff’s portrait rights.”

Therefore, before the implementation of the “Civil Code”, the general judgment rules include: (1) an employee has agreed to be present in promotional materials, normally such cooperation could be deemed as an authorization, but if the employee could prove that he did not know the manners of use or publish of his portrait, then the aforesaid authorization should be rejected; and (2) if the employment has been expired, and the employer did not obtain the authorization of the ex-employee for using his portrait, normally the employer could not be supported by the court.

Articles 1018 to 1023 of the “Civil Code” have made more comprehensive provisions on portrait rights and the use of such rights, and paid more attention to the protection of portrait rights holders. Article 1019 stipulates: “……Without the consent of a holder of portrait rights, the portrait of such person shall not be produced, used or made public, unless otherwise provided by law. Without the consent of a holder of portrait rights, the holder of portrait rights shall not use or make public the portrait of such person by means of publication, reproduction, distribution, lease, exhibition, etc. “. Therefore, normally, the production, use, and publication of the portrait of the rights holder must be approved by the rights holder, and if the rights holder only authorizes production, it does not mean that he has authorized use and publication.

At the same time, Article 1021 of the “Civil Code” stipulates that, “Where any dispute arises between the parties over the understanding of any term on the use of a portrait under a portrait licensing contract, an interpretation in favor of the holder of portrait rights shall be made.” Article 1022 stipulates that, “Where there are no stipulations between the parties on the duration of the license for the use of portrait or such stipulations are unclear, any of the parties may rescind the contract for the license for the use of portrait at any time, but shall notify the other party a reasonable time in advance.”

Regarding the right of portrait, it can be seen that the “Civil Code” emphasizes the authorization of the rights holder, and further mentions the rights holder would be in favor when the agreement is not clear.

In view of this, enterprises should be cautious when using employees’ portrait in their promotional materials. In order to prevent enterprises from risks, the following two aspects are recommended for reference.

First, for those specific positions with long-term shooting requirements, such as an anchor of an enterprise’s live online marketing platform, online course lecturer, online sales staff, etc., it is recommended to prescribe filming as one of the responsibilities in the labor contract and job description; make an agreement on the ownership of the IPRs of the relevant works; and sign the “Portrait License Agreement”, in which the license period and matters are stipulated clearly.

Second, for general positions, where the employees might be presented in the promotional materials for relevant products or the enterprise occasionally, it is recommended to obtain the consent of the employees; sign the “Portrait License Agreement”, in which the payment, scope of license, period of license and etc., are stipulated clearly, and especially the issues related to the license after the expiration of the employment.