After Michael Jordan: a new typical case on what is the right of likeness under the Civil Code of China

On the topic of unauthorized use of a celebrity’s image, readers might recall the IPKat post covering the high-profile Michael Jordan case in China in 2017. Regarding the monochrome red-coloured silhouette of, let’s say, an unspecified person, this Kat commented as follows:

Iconic scene of 2017 China IP

Without seeing the Gif file, will you still believe that the figure is Michael Jordan? Couldn’t it be another basketball player? Which part of the figure makes you believe that it is Michael Jordan? Let's be fair, it could be any muscular man with a similar figure who happens to be holding a basketball... It is not a slam dunk, or any other motion that requires high skills, is it?  

What if, apart from the monochromatic and unspecified silhouette, more clues were to be added on this person? Let’s say: he is an American former professional basketball player who starred as himself in the 1996 live-action animation hybrid film Space Jam. Or how about the addition that he taught Michael Jackson to play basketball in a musical video entitled ‘Jam’? There’s a threshold with regard to the right of likeness protection somewhere here, but the question is: where exactly?

Last month, the Supreme People’s Court of China (SPC) released nine Typical civil cases of judicial protection of personality rights after the promulgation of the Civil Code of China. The 5th case is relevant in defining the threshold for protection of the right of likeness. 

Case reference 

(Civil Judgment No. 10252 [2021], First, Civil Division, 0191, The Primary People’s Court of Chengdu High-Tech Industrial Development Zone of Sichuan Province) 

Plantiff: Yiyang Qianxi 

Defendant: Chengdu JuYou Biotechnology Co., Ltd. (JuYou) 

The court trial can be watched on China Court Trial Online. 

Background 

On 21 January 2021, JuYou, in an article posted on its WeChat public account, launched a campaign to ‘Unlock the mysterious Blue Friend and receive blue facial mask benefits!’ (Blue Friend article). 

WeChat is an instant messaging app with over 1.2682 billion monthly active users. It has multiple functions: sharing updates (comparable to a Facebook wall), gaming, mobile payment, and advertising. 

A WeChat public account can post articles that are accessible to all users of the platform. Underneath each article, there is a comment section for WeChat users, and the public account owner approves, deletes or marks certain featured comments. 

In this case, the dispute on the right of likeness focused on the use of a silhouette (as shown below) by JuYou in the Blue Friend article. The specific facial features were obscured, with only the outer face contour and hair style being visible. 

This article launched an interactive commercial campaign: by providing the silhouette and additional explanatory clues, campaign participants could guess the person’s identity. The winners, as the name of the campaign indicated, were awarded JuYou’s facial mask products. 

The explanatory clues in the Blue Friend article contained the following: 

a) He is a dancer and a young actor;
b) He starred in two films that grossed over a billion CNY each;
c) He was admitted to the acting department of the Central Drama Academy in China with a first grade in both cultural and professional subjects;
d) His fans use a red colour to show their support to him (on glow sticks, star signs, etc.) ;
e) He is good at hip-hop, calligraphy, and sculpture.

In the comment section, the article marked comments that mentioned the plaintiff’s name ‘Yiyang Qianxi’ as featured comments. 

Right of likeness 

Article 1018 of the Civil Code of China (CCC)* (under Chapter IV Rights to Likeness) reads as follows: 

A natural person enjoys the right to likeness, and is entitled to make, use, publicise, or authorise others to use his image in accordance with law. The likeness is an external image of a specific natural person reflected in video recordings, sculptures, drawings, or on other media by which the person can be identified. (emphasis added)**

The key lies in the ‘identifiable’ requirement. The defendant JuYou interpreted this as ‘a complete, clear, intuitive image reproduction’. JuYou argued that the image at issue, as a mere head silhouette, showed no facial features like eyes, eyebrows, skin condition and revealed no information concerning a specific person’s gender, age or identification. Interestingly, JuYou referred to the Michael Jordan case, where the court found no breach of Michael Jordan’s right of likeness by the silhouette of an unspecified person. 

In the Blue Friend case, the court provided a more detailed explanation regarding the issue of recognisability. A mere silhouette may only be recognised by ‘very few people who are highly familiar with the plaintiff’ rather than by the general public. Yet, based on the combination of ‘a silhouette + text description’, more people who ‘have some knowledge about the plaintiff’ would be able to identify the person. 

Moreover, the court held that the combination of ‘silhouette + character description + featured comments’ constituted a ‘highly recognisability’ that enabled a ‘much bigger group of people’ to identify the silhouette as the plaintiff's. It followed that the defendant’s conducts had infringed upon the plaintiff’s right of likeness. The court thus ordered the defendant to make a public apology and pay the plaintiff a compensation of 100,000 CNY (€14017 EUR). 

Comments 

Before, in the absence of a sufficiently clear definition, the scope of protection of the right of likeness in China was uncertain. Some held that the right of likeness would only cover the facial features of a person, for the face is the only part recognisable compared to, e.g., hands and feet. Others considered that the right would only encompass the likeness represented on a particular media/carrier.

The CCC, for the first time, provides an express definition of the right of likeness. Notably, instead of answering directly on 'merely the face per se or not', the CCC clarifies its three essential components as follows:

• The external image of a specific natural person 
• Being impressed by a media (carrier) 
• The requirement of recognisability 

Combined, these three components grant clearer and broader protection to the personal right of likeness. 

This Blue Friend case is a typical one, for the argumentations and the court's reasoning in its ruling have well-demonstrated each of the said three essential components. Further, this case also warns against the unauthorised use of features other than the recognisable image of a person.

* The full text of the CCC in Chinese is provided by the National People’s Congress of China (NPC) here. 

**An English version of the CCC provided by the NPC is accessible here.

Gif courtesy: Sina Sports

Image: screenshot from the online trial website