Can my Ex-employer Use my Portrait in Marketing Material?

Amy started working at XYZ Hotel on 15 October, 2007. In August 2008, XYZ Hotel filmed a four-minute video for decoration and publicity use, which included a total of 15 seconds of close-up footage and 5 seconds of vision footage of Amy receiving guests at the hotel reception. The video was then circulated on television in the hotel lobby, and no agreement was made between the two parties on the issue of Amy’s portrait in the disputed video.

On 14 October 2011, Amy’s employment contract expired and she left XYZ Hotel. On 16 December, 2011, Amy filed a lawsuit against XYZ Hotel. In her pleadings，Amy complained that XYZ Hotel had been playing the video with her images in the hotel lobby for profit for more than three years without her consent. She therefore requested:

1. XYZ Hotel immediately stop violating Amy’s portrait right; stop playing advertisements containing Amy’s portrait,

2. XYZ Hotel compensate Amy for economic losses of 30,000 yuan, and emotional damages of 30,000 yuan.

The court of first instance held that natural persons enjoyed their rights to portrait. The right to portrait is the right of a natural person to reproduce, use or permit the use of his or her own portrait. Infringement of the right to portrait must contain three constitutive elements: i) the use of portraits, ii) without the consent of the right holder to the portraits and, iii) no justification for the unauthorized use if portrait.

When the video was produced, Amy was an employee of the hotel; the scene in the video is therefore closely related to her position meaning that the use of Amy’s portrait by XYZ Hotel was justifiable as it had a certain rationality and necessity which is determined by the employment relationship between the two parties. The argument by XYZ Hotel that Amy was performing her duties as an employee of the hotel was accepted.

However, after Amy’s departure, XYZ Hotel’s continued use of Amy’s portrait had no legal basis as there was no longer an employment relationship. It was therefore not in line with the authenticity of the publicity of their service. It could mislead people regarding the employment relationship between the two parties, causing a mental burden on Amy. XYZ Hotel had not made a clear agreement with Amy on the use of her portraits, nor did XYZ Hotel prevent the illegal use of her portraits for news reporting, scientific and cultural education, or any other social or public interests. In conclusion, XYZ Hotel’s behavior had gone beyond the scope of reasonable use and should be found to have violated Amy’s portrait rights since Amy’s departure.

Regarding compensation, the court did not support Amy’s claim for economic loss because she failed to prove the reasonableness of this claim. However, since the infringement of XYZ Hotel is sufficient to cause Amy pain and suffering, the court was in favor of her claim for compensation for emotional damage. In light of the circumstances of the case, the court determined that the appropriate compensation would be 2,000 RMB

XYZ Hotel argued that the purpose for playing the disputed video was for publicity and not for profit. They insisted that the use of the portrait is not illegal and decided to appeal the decision.

After the hearing of the court of 2^nd instance, the appellate court held that: the main dispute in this case is whether the appellant’s act of playing the video is an infringement of the Respondent’s – Amy’s – portrait rights and whether it should bear the corresponding legal responsibility. In this case, XYZ Hotel is an operational hotel, and its production and broadcast of the promotional video was carried out for its profit-making purposes.

Secondly, the disputed video was produced during Amy’s tenure at XYZ Hotel. Amy cooperated with XYZ Hotel in producing the video which was indeed in line with her duties as an employee of XYZ Hotel but, as the employer, XYZ Hotel should have known that after the employment relationship is terminated and the employee leaves the company, the company does not have the right to play the video which includes the employee’s portrait. This would constitute an infringement on Amy’s portrait rights. The original judgment was therefore not improper and the appellate court dismissed the company’s appeal and upheld the original judgment.