影视名人肖像权的法律保护边界检讨——以葛优躺诉讼案为视角

Review of Legal Protection Boundary of the Portrait Right of Film and Television Celebrities:From the Perspective of"Ge You Tang"Case

影视名人对其在影视剧中饰演的角色所享有的肖像权如何保护,一直是文艺界和法律界关注的问题。影视名人艺术形象承载着演员肖像权、作品著作权以及基于演员和所参演作品的文化影响力而具有的公共文化价值等多元权益。协调影视名人肖像涉及的这些彼此依存又时有冲突的利益,成为处理实践中屡见不鲜的影视名人肖像权纠纷的基础性问题。根据权利边界理论、公众人物理论、美国法中的形象权限制理论,影视名人肖像权益基于其文化价值和多元利益依存特点,应当适当克减以让位于公共利益与他人合法权益。为有效协调影视名人肖像上的利益冲突,确定名人肖像权的合理保护边界,需要协调适用《民法典》肖像权合理使用规则与《著作权法》的合理使用制度,并扩张适用《民法典》人格权的公共利益抗辩原则。对影视名人肖像商业利用施以适当容忍义务,有助于维护包括社会商业道德在内的更为广泛的公共利益与公众文化分享与表达的自由。

How to protect the portrait right of film and television celebrities to their roles in film and television dramas has always been a concern of the literature and art circles and the legal circles.The artistic image of film and television celebrities carries multiple rights and interests such as actor's portrait right,work copyright,and public cultural value based on the cultural influence of actors and the works they participate in.The coordination of these interdependent and sometimes conflicting interests involved in the portraits of film and television celebrities has become a basic issue in handling disputes over the portrait rights of film and television celebrities,which are not uncommon in practice.According to the theory of rights boundaries,the theory of American public figures,and the theory of restrictions on image rights,the rights and interests of film and television celebrities should be appropriately derogated from and subordinated to the public interest and the legitimate rights and interests of others based on their cultural values and the interdependence of multiple interests.In order to effectively coordinate the conflicts of interest in the portraits of film and television celebrities and determine the reasonable protection boundary of celebrity portrait rights,it is necessary to coordinate the application of the rules for the fair use of portrait rights under the Civil Code with the fair use system of the Copyright Law,and expand the application of the public interest defense principle of personality rights in the Civil Code.Imposing an obligation to tolerate the commercial exploitation of portraits of film and television celebrities helps to safeguard the broader public interest,including social business ethics,and the freedom of sharing and expression of public culture.