It the alluring clicks of the camera and pop of the flashbulb that some celebrities find most gratifying, justifying their ascent into the public eye. For others they relish the attention and perpetual notoriety they experience around every corner. Some don't ascend to glamour through talent or the negotiable waters of Hollywood, but are instead thrust into the spotlight at birth. Such is the case of the Last Emperor of China, Pu Yi. Great controversy has surrounded the image and publicity rights of Pu Yi, and the question regarding the use and commercialization of a deceased celebrity's image remains a hotly contested issue to this day.
Portrait Rights in China
According to Article 100 of the General Principles of the Civil Law of the People's Republic of China, the use of a citizen's portrait for profit without his consent shall be prohibited. This law is meant to provide protection to a general citizen of China, preventing another from capitalizing on their likeness or image without proper consent. There are certain limitations however that allow the nearly unrestricted exploitation of another's portrait encapsulated in China's fair use exception. Under the fair use doctrine a celebrity or individual's image or portrait may be used to report such newsworthy subjects, such as a historical event or other notable occurrence. This exception is limited to a subjective requirement that the exercise of care is at all times used regarding the display of the portrait or image. While the term "exercise of care" has not been adjudicated, legal scholars in China has concluded that any and all action should be taken to preserve the appropriate measure of respect and face of the decedent.
The Case of Emperor Puyi
The last feudal Emperor of China, Pu Yi would never have anticipated that his "sibling would resort to socialist laws to protect his image rights." Several years ago an exhibition was held, displaying various personal effects of Pu Yi, including his abdication scripts, personal diaries, photographs and even special articles of clothing. The private exhibitors charged a relatively nominal fee for admission to the exhibition, and allowed the public to examine and view the various artifacts.
A lawsuit was immediately filed by Pu Yi's brother against the exhibition planner and sponsor for breach of Pu Yi's image rights. The lawsuit sought damages under Article 120 of the General Principles of the Civil Law, whereby if a citizen's right of personal name and or portrait is infringed upon without prior consent, the damaged party can seek financial compensation, request an apology from the infringing party and demand immediate cessation of any and all infringing activity.
While Pu Yi was indeed a public figure and of historical significance, the question as to whether one can capitalize and make a profit on the image of Pu Yi came to light. The defendant in this case claimed that Pu Yi is of great importance and it is imperative that all China's citizens have the right to attend the exhibition and learn more about China's last emperor. The case was decided for the defendant, and on appeal the Beijing No. 2 Intermediate People's Court found that, "Pu Yi was a public figure whose life was closely connected with China's history and these rights were in the public domain."
The Pu Yi case raises a very interesting question as to what extent the law protects the image and portrait of deceased celebrities and public figures. As a general rule, once a public figure passes away then no one can claim ownership of their rights. Their families, spouses or estate can mandate or prevent the continued use or exploitation of the descendant's image or portrait.
There are some fairly nebulous issues which need to be taken into account in the present situation. As mentioned above, Article 100 provides protection for all of China's citizens, and grants the right to enjoy their own portrait without exploitation by another for profit. In order for another to profit from an individual's image outright consent needs to be provided before any action can be taken. In the case of a living public figure, it is possible for consent to be given; but a public figure who has died obviously does not have the capability to consent to the use and exploitation of their image.
The second issue is with regard to China's fair use exception. While almost all newsworthy events fall into the fair use exception, many have inquired as to whether a deceased public figure clearly ends up in this potential catchall. While some may argue that all public figures are indeed newsworthy, and the public has a right to full and complete access and disclosure, there has been very little judicial insight as to how the law is interpreted regarding exploitation for commercial purposes.
China's interpretation of newsworthiness has been construed extremely liberally in recent years as the country continues to push toward a more transparent and open society. A recent case involving the published photographs of two limited public figures receiving an award from a Pharmaceutical Company was held not to infringe the Plaintiff's portrait right. The Court clearly stated that the event was held in public, and mere attendance of the event constituted consent. Moreover, The Court stated that the award ceremony was part of the general public affair and with it carried social dissemination. The Court was also quick to point out that the Defendant had no intention to exploit the images for commercial gain.
The final issue regarding fair use is the requirement that one exercise care and do everything possible not to harm the public figure or their image. One of the main arguments in the Pu Yi case was that the Plaintiff asserted that the exploitation of the image rights "dealt a great psychological blow to his family." There is little evidence to suggest that the exhibitor intentionally caused harm to Pu Yi's family. Their main complaint centers on the fact that the exhibitor was profiting from Pu Yi's former possessions and photographs. The family felt completely insulted and requested a public apology. As mentioned above though, The Court found it in the best interest of the public to allow the use and exploitation of Pu Yi's portrait and image, paving the way for future precedent.
The majority of countries in the world allow the free use and dissemination of a public figure's image after death. One notable exception is in the United States where several states allow a statutory time period where the image can remain protected. This is indeed the exception rather than the rule, and in China, although no actual ruling has been issued on the matter, it appears all will follow suit.
Pu Yi was China's last emperor, and the very last connection to China's imperial past. There remains a tremendous interest in Pu Yi and his life inside The Forbidden City. Countless people flock to the former home of Pu Yi, and are eager to learn about his trials and tribulations. Considering this, it is no wonder the laws so heavily favor full and outright disclosure of a deceased celebrity's portrait. There will always remain a fascination and admiration for those in the public life, alive or dead. The public wants to learn about those who invoked great change or who captured our hearts. Full and total disclosure is the only way to ensure celebrities and public figures alike continue to live forever.