Portrait Rights In China: When They Say Cheese, You Say See You In Court

Chinese companies in China infringe portrait of foreign celebrities
Jane Macartney of The Times Online has an article about the commercial use of the portraits of Western celebrities without their permission, which is an infringement of their portrait right.
Little Red Book has nice post about it called 'Beckham, Reeves, and Connery; Selling Sex Pills in China; Fake ad and Chinese Netizen Reactions' including a YouTube video where you see these three celebrities, talking Chinese, endorsing a product that claims to increase the masculinity of the user; and another YouKu video where the Italian football player Messi is used to sell a height pills. IP Dragon's friend Stan Abram of China Hearsay is quoted.

Contrary to many jurisdictions where portrait rights can be found in the copyright law, China's portrait rights are hosted in two articles of the General Principles of Civil Law:

• Article 100 General Principles of Civil Law: "Citizens shall enjoy the right of portrait.
  The use of a citizen's portrait for profit without his consent shall be prohibited."
• Article 120 General Principles of Civil Law: "If a citizen's right of personal name, portrait, reputation or honour is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation be rehabilitated, the ill effects be eliminated and an apology be made; he may also demand compensation for losses."

In this case the celebrities also have a right based on article 99 General Principles of Civil Law, which forbids false representation of personal names.

Portrait associated with special event
Rebecca Ordisch an IP Counsel for Cadbury wrote a 10-page paper called 'Sports Marketing in China: an IP perspective' in the Sports Law eJournal (February 13, 2007) of the Australian Bond University Faculty of Law, where she writes:
"[a] small restaurant owner sought legal advice recently, for example, because he wanted to celebrate Liu Xiang’s latest hurdling win with a special offer to his customers. He wanted to promote the special offer with a banner and a photo of the famous hurdler. He was told that, although he could use Liu Xiang’s name in a promotion in celebration of his win, he could not use the image as it would infringe Liu Xiang’s portrait rights."

Foreign company in China infringes portraits of Chinese celebrities
But foreign companies operating in China can also infringe the portrait right of Chinese celebrities. In 2003 Yao Ming, the 2.29 meter (7 ft 6 in) basketball giant sued Coca-Cola Co. for portrait infringement, when his portrait and that of two other Chinese Basketball Association was displayed on commemorative cans (here you see an AFP picture of a Coca-Cola bottle with Yao Ming on it). In the end Coca-Cola settled the case outside of court. Read the People Daily Online article here.

Stills and the coexistence between copyrights and portrait rights
Professor Chen Longjiang of the Haidian University School of Law wrote a very interesting article about the relationship between copyrights and portraits using stills to illustrate this coexistence, for China Intellectual Property Magazine, August 2008, issue 25. The article, translated by Zhang Meichang, can be read here.

So can I use the portrait right/copyright of Yao Ming?
One can argue that I do not really use the picture for commercial reasons, and the picture is on the site of Wikipedia for a long time. And I would like to refer to article 22 Copyright Law which has some relevant paragraphs limiting copyright, so I can use the picture of Yao Ming to illustrate my blog.

Article 22 Copyright Law:
"In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:
(2) appropriate quotation from a published work in one's own work for the purposes of introduction to, or comments on, a work, or demonstration of a point;
(3) reuse or citation, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events;
(4) reprinting by newspapers or periodicals, or rebroadcasting by radio stations, television stations, or any other media, of Articles on current issues relating to politics, economics or religion published by other newspapers, periodicals, or broadcast by other radio stations, television stations or any other media except where the author has declared that the reprinting and rebroadcasting is not permitted;
(5) publication in newspapers or periodicals, or broadcasting by radio stations, television stations or any other media, of a speech delivered at a public gathering, except where the author has declared that the publication or broadcasting is not permitted;