Sean Hutchinson

August 2022

Background

Under the Civil Code of China, “likenesses” of individuals are protected as personality rights. Specifically, no party is entitled to use an image of a person without that person’s consent. This is known as the “right to likeness” and is detailed in Article 1018 of the Civil Code of China (CCC), which recites:

“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.”

There has been much debate in the Chinese courts concerning the requirement of Article 1018 CCC that “the person can be identified” from the image. In particular, it has previously been unclear whether an image consisting of a silhouette of a person can be protected as a likeness, or whether such an image is not protectable, since a person is unlikely to be readily identifiable from a silhouette alone.

Recent developments

The Supreme People’s Court of China has recently released a list of nine important cases concerning the personality rights provisions of the CCC. One of those cases relates specifically to whether silhouettes can be protected as “likenesses” under Article 1018 CCC, and the Supreme People’s Court’s endorsement of this case has therefore shed some light on the issue.

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

In this case, Chengdu JuYou Biotechnology Co., Ltd. (“JuYou”) had published on a website an image of a silhouette of a celebrity, and had invited visitors to the website to guess the celebrity’s identity by posting their guesses in the comments section. Clues as to the celebrity’s identity were given in the text on the webpage, and comments including the name of the celebrity were marked as correct.

However, JuYou did not have permission to use the celebrity’s image, and the celebrity thus brought a case against JuYou at the court, arguing that the image was protected under the right to likeness provisions of Article 1018 CCC.

The court held the requirement of Article 1018 CCC that “the person can be identified” is not limited to the person being identifiable from the image per se, but that the context in which the image is used may also be taken into account. The court acknowledged that very few people may be able to identify the person from the silhouette alone. However, the court ultimately decided the inclusion of clues in the text surrounding the image, and the fact that JuYou highlighted the celebrity’s name in the comments section, meant a person visiting the website would be able to identify the person in the image from the website as a whole.

Accordingly, the court held that the celebrity’s right to likeness had been infringed.

Summary

It was previously unclear whether an image of a silhouette of an individual could be protected under the right to likeness provisions of Article 1018 of the Civil Code of China, noting that most people would be unable to recognise a person from their silhouette alone.

However, the Supreme People’s Court’s recent endorsement of the JuYou case confirms silhouettes are protectable as likenesses under Chinese law, and suggests the context in which the image is used may be taken into account when determining whether the person shown in the image can be identified.