While some celebrities are made, others are born – such as China’s last feudal emperor, Puyi. In recent years controversy has surrounded Puyi’s image and publicity rights, and the use and commercialisation of a deceased celebrity’s image remains a hotly contested issue.
According to Article 100 of the General Principles of the Civil Law, the unauthorised use of a citizen’s portrait for profit is prohibited. This law is meant to protect citizens by preventing another party from capitalising on a person’s likeness or image without proper consent. However, certain limitations allow for near-unrestricted exploi tation of another’s portrait, encapsulated in China’s fair-use exception. Under the fair-use doctrine, a celebrity or individual’s image or portrait may be used to report newsworthy subjects, such as historical events or other notable occurrences. This exception is limited to a subjective requirement that care be exercised at all times when displaying the portrait or image. While this concept has not been adjudicated, Chinese legal scholars have concluded that all action should be taken to preserve and respect a decedent’s image.
The case of Emperor Puyi
Several years ago, a public exhibition was held of various personal effects belonging to Puyi, including his abdication scripts, personal diaries, photographs and special items of clothing. The private exhibitors charged a nominal fee for admission to the exhibition which allowed the public to view the various artefacts.
Puyi’s brother immediately filed a lawsuit against the exhibitor and sponsor for breach of Puyi’s image rights. The lawsuit sought damages under Article 120 of the General Principles of the Civil Law, which states that if a citizen’s rights to his or her personal name and or portrait are exploited without prior consent, the damaged party can:
- seek financial compensation;
- request an apology from the infringing party; and
- demand immediate cessation of all infringing activity.
While Puyi was a public figure of historical significance, the question of whether a third party could capitalise and profit from his image came to light. The defendant claimed that Puyi was a person of great importance and that it was imperative that all Chinese citizens had an opportunity to attend the exhibition and learn more about China’s last emperor. The case was decided in the defendant’s favour. On appeal, Beijing Intermediate People’s Court No 2 found that “Puyi was a public figure whose life was closely connected with China’s history and these rights were in the public domain”.
The Puyi case questions the extent to which the law protects the image and portrait of deceased celebrities and public figures. As a general rule, once a public figure has passed away, no one can claim ownership of his or her rights. Neither family, spouse nor estate can mandate or prevent the continued use or exploitation of the decedent’s image or portrait.
Some fairly nebulous issues must be taken into account in this regard. As mentioned above, Article 100 protects all citizens by granting them rights over their own image/portrait without exploitation by another party for profit. In order for another party to profit from an individual’s image, his or her express consent must be obtained in advance. In the case of a living public figure, consent can be given; however, a deceased public figure obviously does not have the capacity to consent to the use and exploitation of his or her image.
The second issue concerns China’s fairuse exception. While almost all newsworthy events fall within the fair-use exception, it is unclear whether deceased public figures are covered by this potential catchall. While some could argue that all public figures are newsworthy and that the public has a right to full access and disclosure, there is little judicial insight as to how the law is interpreted regarding exploitation of a decedent’s image for commercial purposes.
China’s interpretation of ‘newsworthiness’ has been construed extremely liberally in recent years, as the country continues to push towards a more transparent and open society. A recent case involving published photographs of two public figures receiving an award from a pharmaceutical company was held not to have infringed the plaintiffs’ image rights. The court stated that the event had been held in public and mere attendance of the event constituted consent. Moreover, the court stated that the award ceremony constituted a general public affair, and that the defendant had no intention of exploiting the images for commercial gain.
The final issue regarding fair use is the requirement that one exercise care and do everything possible not to harm the public figure or his or her image. In the Puyi case the plaintiff argued that the exploitation of Puyi’s image rights had “dealt a great psychological blow to his family”. There is little evidence to suggest that the exhibitor intended to harm Puyi’s family. The family’s main complaint centred on the fact that the exhibitor was profiting from Puyi’s former possessions and photographs. The family felt insulted and requested a public apology. However, as mentioned above, the court found it in the public’s best interest to allow the use and exploitation of Puyi’s portrait and image, paving the way for future precedent. Most countries allow the free use and dissemination of a public figure’s image after death. One notable exception is the United States, where several states provide a statutory time period for which image rights remain protected. However, this is the exception rather than the rule. Although no actual ruling has been issued on the matter, it appears that China will follow suit.
Puyi was China’s last emperor and the last connection to the country’s imperial past. There remains tremendous public interest in Puyi and his life inside the Forbidden City. Countless people flock to his former home, eager to learn about his trials and tribulations. Therefore, it is little wonder that the law favours full and outright disclosure of his image. There will always remain a fascination and admiration for those in public life – alive or dead. The public is inevitably interested in people who invoke great change or who capture people’s hearts. Full and total disclosure is the only way to ensure that celebrities and well-known figures alike live on forever in the public eye.
This article first appeared in World Trademark Review. For further information please visit www.worldtrademarkreview.com.