The distinction between Portrait Rights and Personal Rights

In the case heard by the Beijing Internet Court on June 20, 2024, regarding the use of videos and images for face-swapping app without consent (see here), the court ultimately ruled that there was no infringement of the plaintiffs' portrait rights, even though it found that their personal information rights had been infringed. 

While personal rights and portrait rights are related, they serve different purposes. Personal rights provide broad protection for an individual’s overall dignity, privacy, and autonomy. Portrait rights, on the other hand, are specifically concerned with the use and control of a person’s image or likeness. 

Understanding both is essential for comprehensively protecting an individual's rights in both private and public life. In fact, the distinction between these two findings is nuanced and reflects specific legal interpretations.

Personal Rights

Personal rights are a broad category of rights that protect an individual's personal autonomy, dignity, and integrity. These rights are fundamental and are concerned with aspects that are intrinsic to a person's identity and personal life.

The scopes of the Personal Information rights are mainly 4:

Right to Privacy: Protects individuals from unauthorized intrusions into their personal life, such as the unauthorized disclosure of private information.

Right to Reputation: Protects against defamation, slander, or any act that could harm a person's reputation.

Right to Integrity: Protects against any actions that could harm a person's physical or psychological well-being.

Right to Personal Data Protection: In some legal systems, this includes the right to control how personal data, including images, is collected, used, and shared.

Personal rights are invoked in a wide range of situations, from protecting an individual's privacy from media intrusion to safeguarding against the unauthorized use of personal data.

Portrait Rights

When discussing the concept of portrait rights, it is essential first to understand what constitutes a portrait.

The concept of a portrait is broad and encompasses various forms of visual representation, not just facial images. Understanding the wide-ranging scope of what constitutes a portrait is crucial in discussing portrait rights, which protect individuals' control over the use of their likeness and image. 

Portrait rights ensure that people have a say in how their image is used, particularly in commercial or public contexts, while also balancing these rights against other legal principles, such as freedom of expression and public interest.

The notion of a portrait extends beyond just an image of a person's face; it includes any visual representation that can be used to recognize a person, even if it involves parts of the body other than the face. 

The legal definitions and interpretations of a portrait are broad and not strictly limited to facial images.

A portrait is fundamentally an image that depicts an individual. This image can focus on the face but is not restricted to it. It can also include other parts of the body or even the person's entire body.

The key factor in defining a portrait is whether the person depicted can be recognized. Recognition does not require a perfect likeness; it is sufficient if the image, in context, can reasonably be understood to represent a specific person.

The most common form of a portrait is a photograph, which directly captures a person's appearance. A portrait can also be a painting, drawing, or any other form of art that depicts a person, or even exaggerated or stylized representations, such as caricatures.

Moving images, such as those in videos or television broadcasts, can also constitute portraits if they depict a recognizable individual. Furthermore, in the digital age, portraits also include images created or altered by digital means, such as those generated by AI or used in face-swapping technologies.

Why there was no Portrait Infringement in the Beijing case?

One reason why the Beijing court decided there is no infringement of portrait rights might be that the first result of the face-swapping application is the transformation of the original image.

The face-swapping process creates a new, digitally altered image that, while derived from the plaintiffs' likenesses, may not be considered a direct representation of their portraits under the legal definition. 

The altered images may have been judged to differ sufficiently from the original likenesses, thereby not constituting a direct use of the plaintiffs' portraits.

Legal Definition of Portrait Rights

In Chinese law, portrait rights typically protect the right of an individual to control the use of their recognizable image or likeness. For a violation of portrait rights to occur, the use must involve a recognizable, direct depiction of the person. 

If the AI transformation altered the plaintiffs' likenesses to the extent that they were no longer immediately recognizable as their original selves, the court might have concluded that the usage did not violate portrait rights.

The court may have determined that the face-swapped images, being altered representations, did not directly infringe upon the plaintiffs' portrait rights because they did not clearly depict the plaintiffs in their original form. Basically, the alteration was sufficient to make them unrecognizable.

Commercial Use vs. Personal Representation

The court may have distinguished between the commercial use of the altered images and the personal representation of the plaintiffs. 

The use of the altered images for face-swapping templates might have been viewed more as a commercial exploitation of personal information rather than a direct violation of the plaintiffs' rights to control their actual image or likeness.

Consent and Implied Consent

If the plaintiffs were public figures or had previously consented to the use of their images in certain contexts, the court might have found that this consent did not extend to the altered images, thus focusing on personal information rights rather than portrait rights.

Precedent and Legal Interpretation

The court's decision might also have been influenced by precedents where courts have distinguished between direct use of an individual's portrait and the use of transformed or altered images. Legal interpretations in other cases could have guided the court's reasoning in finding no infringement of portrait rights in this instance.

Conclusion

While the Beijing Internet Court recognized the infringement of the plaintiffs' personal information rights, it did not find that their portrait rights were violated. 

This decision likely hinged on the specific legal definitions and interpretations of portrait rights in Chinese law, as well as the transformative nature of AI face-swapping technology. 

The court may have concluded that the altered images did not constitute a direct representation of the plaintiffs' portraits, thus not meeting the criteria for an infringement of portrait rights. 

However, the unauthorized commercial use of these altered images still constituted a violation of personal information rights, leading to the court's ruling in favor of the plaintiffs on that basis.