肖像权保护的立法模式与现实选择——兼评刘翔肖像侵权纠纷案

Legislation Models and Realistic Choice of the Protection for the Portrait Right——On the Dispute of "Infringement upon Liu Xiang's Portrait Right"

对肖像权的法律保护,世界各国主要有人格权法和著作权法两种立法模式。著作权人在职业范围内合理使用他人肖像不构成侵权,但以营利为目的不应成为肖像权侵权的必要条件。著作权的行使不能以牺牲他人的肖像利益为前提,在著作权人转让其带有他人肖像权的作品时,应事先征得肖像权人的同意。否则,只要权利人在行使著作权时超出了对肖像权人利益的合理注意程度,就应当依法承担民事责任。

On the legal protection for the portrait right, there are the personality law and the copyrights law, these two main kinds of legislation models. It does not be called to commit an infringement if citizens or legal persons who have copyrights use others＇ portrait within their professional range, but the use for profit should not be an essential condition to commit an infringement upon the portrait right. It is prohibited to sacrifice others＇ benefit for citizens or legal persons enjoying their own copyright. If citizens or legal persons who enjoy copyrights want to transfer their portrait works, they should obtain the consent of the person who enjoys the portrait right beforehand. Otherwise, the obligees should bear their civil liability so long as it is beyond the orbit of their duty of care on others＇ portrait interests for citizens or legal persons when they enjoy copyrights.