Pufa Story 丨 Homestay Promotion with Other People's Photos? Tort!

"Cultural" Infringement (Xinhua News Agency)

　　Fluorescent flickering, such as stars falling into the sea, Pingtan's "blue tears" attract many tourists and photographers to punch in, with photos frozen like a dreamlike "blue tears". However, the use of "Blue Tears" photos also avoids walking the "minefield" of the right of invasion. Recently, the Pingtan court accepted a copyright dispute caused by "blue tears".

　　The Story of Popularization

　　Chen Xuetao (pseudonym), a "post-90s" girl from Hubei Province, came to Pingtan by chance and met a group of like-minded friends, and decided to take root in Pingtan to run a homestay. She commissioned Yishang Media Company (pseudonym) to shoot a promotional video for the homestay. But she did not expect that this promotional film would cause her a lawsuit.

　　Originally, when the staff of Yishang Media Company helped Chen Xuetao make a promotional film for the homestay, in order to better show the local scenery of Pingtan, they intercepted the "Lanhai Genie" blue tears theme photographic work taken by photographer Lin Xiaoxin (pseudonym) from the Internet. After Lin Xiaoxin discovered that his work had been used for commercial propaganda without authorization, he sued Chen Xuetao in court.

　　After filing the case, Chen Xuetao was contacted by telephone by the magistrate, and Chen Xuetao was confused, saying that the propaganda film was filmed by the Yishang Media Company entrusted by him, and if there was a problem, he should find the Yishang Media Company. Chen Xuetao expressed her doubts and grievances, and applied to the court to add Yishang Media Company as a third party. After the judge answered the questions one by one, Chen Xuetao realized that he was indeed at fault and offered to ask the judge to help preside over the mediation. In the end, the two parties agreed on the amount of compensation and other contents.

　　Chen Xuetao and Yishang Media Company regretted their infringement due to their lack of legal awareness and immediately removed the relevant promotional video. Yishang Media Company also said that it would voluntarily refund part of Chen Xuetao's fees and re-produce a promotional video for Chen Xuetao.

　　Judge's Statement

　　How to define the infringement of the photos used?

　　The "Lanhai Genie" photographed by photographer Lin Xiaoxin belongs to the photographic works in the sense of the Copyright Law. According to his own ideas and expressed ideas, Lin Xiaoxin took the original photos of the works involved in the case with the theme of Pingtan Blue Tears by adjusting the camera position, focal length, sensitivity, exposure compensation and other parameters, and post-processed the original photos through photography, retouching and other techniques to achieve a certain artistic appeal. Moreover, after the completion of the above-mentioned photographic works, Lin Xiaoxin registered the copyright and published them on Youku. Chen Xuetao used the work in the promotional film without Lin Xiaoxin's authorization and permission and uploaded the promotional video to Tencent, Youku and other platforms for publicity and promotion, infringing Lin Xiaoxin's personal rights and property rights such as the right to publish, the right to sign, and the right to remuneration that Lin Xiaoxin enjoyed in accordance with the law. Therefore, Chen Xuetao should bear civil liabilities such as stopping the infringement and compensating for losses in accordance with the law.

　　How is the amount of compensation determined?

　　Under normal circumstances, the actual losses of the right holder or the illegal gains of the infringer are difficult to calculate or prove. To this end, in the course of hearing a case, the court will usually consider the amount of compensation in a comprehensive manner in light of the specific circumstances such as the infringer's subjective consciousness, the specific circumstances of the infringing act, and the reasonable expenses paid by the infringed person to stop the infringing act.

　　Basis of the law

　　Copyright Law of the People's Republic of China

　　Article 3: "Works" as used in this Law refers to intellectual achievements in the fields of literature, art, and science that are original and can be expressed in a certain form, including: (1) written works; (2) oral works; (3) music, drama, music, dance, and acrobatic art works; (4) fine arts and architectural works; (5) photographic works; (6) audio-visual works; (7) graphic works and model works such as engineering design drawings, product design drawings, maps, and schematic diagrams; and (8) computer software ;(9) Other intellectual achievements that meet the characteristics of the work.

　　Article 52 Where there are the following acts of infringement, civil liabilities such as cessation of infringement, elimination of impact, apology, and compensation for losses shall be borne according to the circumstances: (1) publishing his work without the permission of the copyright owner; (5) plagiarizing the works of others; (7) using the works of others, where remuneration should be paid but not paid.

　　Article 54 Where copyright or copyright-related rights are infringed, the infringer shall compensate the infringer in accordance with the actual losses suffered by the right holder or the infringer's illegal gains; if the actual losses of the right holder or the infringer's illegal gains are difficult to calculate, compensation may be given with reference to the royalties of the rights. Where the intentional infringement of copyright or copyright-related rights is serious, compensation may be given not less than one time but not more than five times the amount determined in accordance with the above methods. Where the actual losses of the right holder, the illegal gains of the infringer, or the royalties of the rights are difficult to calculate, the people's court shall, on the basis of the circumstances of the infringing act, make a judgment to give compensation of between 500 yuan and 5 million yuan. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.

Producer: Pingtan Comprehensive Experimental Zone Rong Media Center

Reporter: Huang Shan Correspondent Gao Qiaoping

Editor-in-Charge: Leaf