Why does Visual China say it is an image seller, not a rights defender?

Why does Visual China say it is an image seller, not a rights defender?

Recently, the news of Visual China's defense of the rights of photo authors has become a hot topic of public opinion, and photographer Dai Jianfeng posted on his Weibo that he posted his own photos on the public account, and was claimed 80,000 yuan by Visual China. Visual China later replied that the pictures involved were authorized by the photographer to be sold by a foreign photo library, and the image library authorized the relevant pictures to be sold by the American Getty Company, and Visual China, as the exclusive partner of the American Getty Company in the Chinese mainland, had the right to sell the pictures involved. I'll talk to you about this today.

1. Can the author himself still use the copyrighted work that has been sold?

In this case, the photographer has licensed the work to a foreign website, so whether the photographer himself can use this picture depends on the way the photographer authorizes the website, and there are several in practice:

1. Exclusive License. That is, the photographer fully authorizes the copyright of the work to the website, at this time the website is the only copyright owner of the picture, and the photographer has no right to use it.

2. Exclusive License. Under the exclusive license model, both the photographer and the website have the right to use the image, but the website generally also has the right to sublicense, which can authorize others to use it. In addition, if not otherwise indicated, the use of pictures by the photographer's company is generally not considered the photographer's use, and should also be authorized. But if it is a sole proprietorship limited company opened by a photographer, and then registers an official account in the name of the company, uses pictures in the official account article, and is protected by the picture company, the author feels that the court will not necessarily judge infringement, because after all, it is a sole proprietorship, and if the photographer argues that the company and the shareholders have mixed personalities, the court may also support it.

3. General license. That is, when the photographer authorizes, he declares that he can authorize others in the same way, and at this time, of course, the photographer can also use it himself.

But the problem is that the photographer posted on Weibo that he had verified with foreign photo websites, and the foreign websites clearly informed the photographer that Visual China did not have the right to sell his works and did not have any copyright in his works. Visual China's statement claims that Getty USA also has no right to relicense the photographer's work. If this is true, the question in this case is not whether the photographer can use his own work, but whether Visual China can defend the rights of the work, that is, they claim to sell it and collect a fee.

2. Does Visual China's collection of licensing fees from authors constitute a crime of fraud?

Many reporters interviewed me about this, and after I initially read it, I felt that Visual China's statement said that it only had the right to sell pictures, but in practice, the behavior became picture rights protection, and may not have obtained any rights at all, a little out of nothing, if the basic rights are fictitious, and there is a situation of obtaining a larger amount of authorization fees, the circumstances are serious will be suspected of fraud, reply:

1. Looking at Visual China's statement, they only have the right to sell picture works, and do not have copyright authorization and corresponding rights protection rights for picture works, and in this case, they exercised the right of copyright protection against the image user, requiring the other party to pay hundreds of yuan per image authorization fee for past use.

2. The nature of this act is that there is no right to protect rights, and if it is out of negligence, it is suspected of impersonating rights protection and infringing the rights of the copyright owner of the picture.

3. If it is intentional and is a large-scale and widespread act of the company, in addition to civil tort, it is suspected of extorting a larger amount of property from others with fictitious facts and concealed truth, and is suspected of the crime of fraud.

However, his colleague Lawyer Luo disagrees with the view of the alleged crime: this time the author's use of the picture was an accident, and in most cases, even if the rights of the defender are flawed, the user's use of the picture is not authorized. If rights defenders can sell, even if they are upgraded to rights protection, there is a certain legitimacy. I would like to think and correct that point 3 should be changed to read: if it is intentional and it is a large-scale and widespread act of the company, in addition to civil tort, it is suspected of fraud or illegal operation, and may be subject to administrative penalties. If the circumstances are serious, such as concealing the facts of rights protection and not paying royalties to the copyright owner, they may even be suspected of fraud.

Why does Visual China say that it is sales, not rights protection?

Let's talk about illegal business. According to news reports, there are two plans proposed by Visual China to photographers in this incident:

1. Cooperation. The price of 300 yuan per picture buys a one-year authorization, which can cover the previous unauthorized use;

2. Reconciliation. The price of 500 yuan per picture to buy the previous use authorization, pay for the previous use infringement, but if you want to continue to use after signing the contract, you have to pay a separate authorization fee. To put it bluntly, this plan does not plan to continue to use the picture, and the cost of 500 yuan per picture is the compensation for the previous unauthorized use of the picture[i].

Based on the description of the above behavior, it is not difficult to see that Visual China is not only selling pictures, what they actually do is to achieve sales through rights protection. It is clear that what it is doing is to protect rights, but why does Visual China only claim to have the right to sell, not the right to protect rights? Because this actually involves a compliance point of the company, the image business that Visual China is doing now is essentially copyright collective management, but they are not copyright collective management organizations, so they can only hang sheep's heads and sell dog meat.

Article 2 of the mainland's Regulations on Collective Management of Copyright stipulates: "Collective management of copyright" as used in these Regulations refers to the following activities carried out by collective copyright management organizations that centrally exercise the relevant rights of the right holder and carry out in their own name with the authorization of the right holder:

(1) Concluding a copyright or copyright-related rights licensing contract with the user (hereinafter referred to as the license contract);

(2) Collecting user fees from users;

(3) transferring royalties to right holders;

(4) Conducting litigation or arbitration involving copyright or copyright-related rights.

What Visual China does fully meets the definition of collective management of copyright:

1. With the authorization of the majority of photographers, the copyright of the photographer's works is exercised centrally.

2. Conclude a picture copyright license contract with the user in your own name and collect royalties from the user.

3. Transfer the usage fee to the photographer.

4. If the user is unwilling to pay, appoint a lawyer to sue the user. This is the most typical collective management of image copyright.

According to the Regulations on Collective Management of Copyright, the establishment of collective copyright management organizations must be approved by the National Copyright Administration and the Ministry of Civil Affairs. Where collective copyright management organizations or branches are established without authorization, or collective copyright management activities are engaged in without authorization, the copyright administration department under the State Council or the civil affairs department shall, in accordance with their duties and division of labor, ban them and confiscate unlawful gains; Where a crime is constituted, criminal responsibility shall be pursued in accordance with law.

In the field of pictures where Visual China is located, there is currently no approved copyright collective management organization in China, so although they actually do the collective management of image copyright, they can only claim to be image sellers in the statement, otherwise, as a listed company, issuing a statement can in turn prove that their basic business is not in compliance is a big trouble.

Finally, before the advent of the Internet, text publishing was a matter for professional institutions, and picture dealers only needed to charge advertising companies, newspapers, magazines and other media, and pictures were expensive. But after the emergence of the Internet, especially the mobile Internet, everyone can freely publish articles on the platform, most of the articles have pictures, the demand for social pictures has become greater, but the charging object has also increased, in the face of many individuals, the cost of charging has also become higher. Therefore, the biggest challenge of the image copyright industry is how to develop a reasonable fee model that can not only feed a large group of photographers, but also satisfy the public.

In any case, the public is very dissatisfied with the current model of visual China sales through rights protection, so as soon as there is a storm, they will face a round of public relations crisis. Photographers are also not satisfied with them, specifically look at the title of this question [ii]: Visual China sells for 180 yuan, and photographers can only get 1 cent?

The author of this article: You Yunting, senior partner of Shanghai Dabang Law Firm, intellectual property lawyer. The views expressed in this article are those of the author only.

[i] https://www.sohu.com/a/712043450_116237?edtsign=964CE089F0AC6F672CC8ED0CE521059D25769801&edtcode=zXiNVNvXHhH4mGR7923P6Q%3D%3D&scm=1103.plate:280:0.0.1_1.0&spm=smpc.home.top-news2.4.1692097203025A5oXoZw_1467

[ii] https://www.zhihu.com/question/490486445/answer/2155444064