What happened behind Zhang Songwen's statement? Why have big celebrities started to "argue" with small businesses? Photo | Product | Enterprise

Yesterday afternoon at around 6pm, actor Zhang Songwen's studio, "Zhang Songwen Performance Studio," publicly cracked down on counterfeits on Weibo, posting multiple photos of products using Zhang Songwen's portrait and a "solemn statement," stating that Zhang Songwen's officially signed cooperative brands are only Hailan Home and Xiaomi, and any unauthorized use of his portrait's products by others constitutes infringement.

Zhang Songwen is not the first performer in recent years to use the law to defend the right to portrait. In the past, some small businesses, especially online sales companies, used the image of performers to advertise their products, but not many were sued. Nowadays, many well-known actors are suing infringing companies, making it difficult for some people to understand: why did big stars "fight" against small businesses?

According to industry insiders, entertainers are increasingly valuing the issue of being endorsed, not only to maintain their public image and commercial value, but also to regulate the behavior of spokespersons in the Advertising Law. "Although performers are also victims when being 'endorsed', it may still affect the public image. Proactively advocating for rights is responsible to both legitimate partners and oneself."

Statement released by Zhang Songwen's performance studio and brand images suspected of infringement

Are celebrities frequently defending their rights for money?

In the pictures of suspected infringing products posted by Zhang Songwen's performance studio, there are various categories: watches, alcoholic beverages, electric vehicles, convenient and fast food products, as well as offline chain restaurants and even poultry feed additives.

Zhang Songwen Performance Studio stated in a statement that lawyers have been commissioned to collect evidence against these infringing merchants, and relevant parties have been held legally responsible through legal means such as filing lawsuits, sending letters, and platform complaints one by one.

According to Article 1018 of the Civil Code, a portrait is an external image of a specific natural person that can be recognized and reflected on a certain carrier through means such as images, sculptures, and paintings. Natural persons have the right to portrait and have the right to lawfully make, use, publicly disclose, or permit others to use their own portraits.

Article 1019 further clarifies that no organization or individual shall infringe upon the portrait rights of others by means of defamation, defacing, or using information technology to forge. Without the consent of the portrait owner, the portrait of the portrait owner shall not be made, used, or made public, except as otherwise provided by law. Without the consent of the right holder of the portrait, the right holder of the portrait work shall not use or publicly disclose the portrait of the right holder through publication, reproduction, distribution, rental, exhibition, or other means.

Before Zhang Songwen, many performers had already used the law to protect their portrait rights. Actor Zhou Dongyu, who once won the Golden Rooster Award, Hundred Flowers Award Award and other honors, sued Wenzhou Singing Dane Trade Co., Ltd., which used several photos of her in a suit sold in an online store. The court ruled that the defendant had infringed on the plaintiff's right to portrait, and published a statement of apology in their online store, compensating for economic losses of 8000 yuan.

The Jiading District Court in Shanghai has also accepted a lawsuit filed by renowned artist Yang Ying against a medical beauty company in Shanghai for infringement of portrait and reputation rights. The organization published articles on its WeChat official account, such as "Why are you biased against plastic surgery since appearance is so important?", and used three photos of Yang Ying as supporting pictures. The defendant claims that these articles are mainly reprinted and the content is not limited to celebrities, and users will not consider them as endorsements. The court ruled in the first instance that the company, as a professional institution engaged in medical beauty, had a clear profit-making purpose in its use, and found that it had infringed on the plaintiff's right to portrait, and compensated 26500 yuan. Afterwards, Yang Ying also sued medical beauty institutions in Nanning and other places for infringement of portrait rights, which was supported by the court.

Artist Yang Ying has collaborated with well-known brands

"In the past, stars sued with big companies and brands, and the amount involved was also high. Now, how come online stores and WeChat official account are sued, and this money is also lacking?" Some people on the Internet do not understand the rights protection behavior of performers.

"Portrait rights are the legitimate rights and interests of performers, and they are also an important source of income. In the past, there were few lawsuits, and it was indeed difficult to afford them. But now we value this issue not for the sake of compensation." Zhou Lei, who has been working in the field of entertainment planning for 10 years, revealed that in today's entertainment ecosystem, performers need to maintain their public image in order to maintain their commercial value. "For example, many female actors are suing medical beauty agencies for using their photos without permission, and they do not want to be related to" plastic surgery ". For some small brands or even" three no products "that falsely use their own image, performers also express their position to partner brands through" litigation ". "For example, Zhou Dongyu endorsed luxury brands like Louis Vuitton, and her image appeared in ordinary online stores. What do legitimate partners think?"

The Advertising Law also has stricter regulations on spokespersons. Article 38 stipulates that advertising spokespersons "shall not recommend or prove products they have not used or services they have not received." "The failure of a spokesperson does not necessarily affect the brand, but the failure of a brand will definitely affect the spokesperson." Zhou Lei noticed that among the infringing products listed by Zhang Songwen, some health products were advertised with the slogan "Fuyang Guben". "In terms of business cooperation, celebrity teams will try to avoid controversial areas." In his view, even if performers are victims when "endorsed," "clarification after the fact is far less effective than prevention before.".

Is screenshot endorsement also illegal?

Among the infringing brands listed by Zhang Songwen, many used elements from his popular TV series "Fury" at the beginning of this year. In the drama, Zhang Songwen played a line by Gao Qiqiang, "Lao Mo, I want to eat fish", which was used by some grilled fish restaurants and restaurants.

When searching online, the reporter found that a metal bracelet with the same design as Zhang Songwen is also selling well online, with prices ranging from 19 yuan to 790 yuan. In "Fury", Gao Qiqiang did indeed wear a bracelet that was quite similar to the styles sold in these online stores, and many of the pictures used by online stores were screenshots from the show.

Zhang Songwen's portrayal of Gao Qiqiang actually wears a bracelet

The reporter learned from legal professionals that the use of actor photos combined with film and television content or the use of screenshots of film and television to "endorse" is suspected of double infringement: on the one hand, it infringes on the copyright of the film and television production party, and on the other hand, it also infringes on the portrait rights of the actors.

Previously, the Shanghai Intellectual Property Court had made a judgment on online stores selling TV dramas such as "Dear, Love" and "Han Shangyan Same Style" tops. After the show aired, an online store used screenshots of the show to sell the same black short top worn by the male protagonist Han Shangyan. The film company immediately sued the online store's affiliated company to the court. The first instance court ruled that the company to which the online store belongs infringed on the producer's information network dissemination rights and compensated a loss of 35000 yuan. Subsequently, the company to which the online store belongs appealed to the Shanghai Intellectual Property Court, and the second instance was rejected.

"There are many 'celebrities with the same style' in online stores, but in fact, they don't even have the goods. They just put out their photos first, and then contact production based on the order situation. Mr. Shi, who has worked in trendy online stores for many years, introduces this kind of 'endorsement' situation: taking clothing as an example, some merchants will capture pictures of performers attending events, taking street photos, or endorsing well-known brands, erasing obvious brand logos.". "In the past, the bigger the celebrity, the safer it was because they wouldn't argue with a small store. Even if an intermediary found out, they would usually give a warning and take it off the shelves within 24 hours." Later, some merchants would even "create something out of nothing" and use photo editing software to "wear" their products on the performers. "I didn't watch" Fury "and thought that was how that bracelet was made."

These endorsement pitfalls cannot be stepped on

Zhou Lei also found that among the infringing products listed by Zhang Songwen, some brands used Zhang Songwen's photos but claimed in the small font that they were cooperating with a certain film and television drama they participated in.

In the eyes of some legal professionals, this approach is still illegal. "These brands use actors' photos for profit purposes. According to the law, even if the owner of the portrait works wants to use or disclose the portrait of the portrait owner, they must obtain their consent. Unless otherwise agreed in the contract, cooperation with the film and television industry does not imply the use of actors' portraits."

Zhou Lei told reporters that there are indeed illegal intermediaries in the industry who have obtained other cooperation opportunities with film companies and subsequently sold so-called "endorsements" to brands. "Nowadays, celebrity endorsements are divided into several levels, the highest of which includes shooting advertisements, coordinating promotional activities, etc.; the most common is to provide a set of photos, and the information gap between them allows people to take advantage of it."

The police in Shengzhou, Zhejiang once solved a case: a local electrical company signed a contract with a cultural media company to obtain the endorsement of an actor, and then the actor studio sued the electrical company. After investigation by the police, it was found that the so-called cultural media company mistakenly believed that they could use the image of actors in these films and TV dramas for promotion by purchasing the sales and promotion rights of DVD movies and TV dramas, and blurring the contract terms.

Some industry precedents also indicate that even if the parties involved have passed away, using their names and portraits to profit may still be suspected of illegal activities.

Previously, a restaurant in Suzhou not only included "Hepburn" in its name, but also extensively used the portrait of Audrey Hepburn in its decoration. In 2018, Audrey Hepburn's youngest son Luca Dotty was found out and sued the restaurant. After trial, the court held that although the right to name and portrait cannot be inherited as personality rights, the economic benefits generated by the name and portrait of the deceased due to their commercial value can be inherited and enjoyed by their close relatives, and should be protected by law. The restaurant was ordered to compensate the plaintiff for economic losses of 200000 yuan.