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Photos taken during a concert: legal regime in China
Before jumping into the topic, we would like to recall an episode happened in 1991 in Saint Luis, U.S.A., where a rock band ―called Guns n’ Roses― was performing a live show. As many of you might remember, the band built an enormous success thanks the talent and to the craziness on the stage during the concerts.
In Saint Luis during that concert, a fan in the first row was shooting pictures of his idols. Nothing strange so far: a fan taking pictures, something that we were totally used to. Axl Roses did not appreciate. He complained a few times with the organization team, but nothing happened and the guy kept shooting. Well then, Axl jumped down the stage, tore out the camera from the fan, crashed into the ground and then left the concert. All the people starting a real fight which ended in a riot with many people arrested and injured.
We are in China now, in 2016, over exposed to photo shooting and social media. Let us review the case of the photographer and Axl Roses under Chinese laws in force.
Can the singer stop the photographer?
Can the organizer stop the photographer?
Who is the owner of photos shot during a concert?
Can the singer stop the photographer?
In accordance with the Article 120 of General Principles of Civil Law “if a citizen's right to a name, right of portrait, right of reputation or right of honor is infringed upon, he shall have the right to demand that the infringement be stopped, that his reputation be restored, and that the effects of the infringement be eliminated and an apology made”. In addition, he may also claim damages.
In the practice, jurisprudence clarified and streamlined the provision. The violation of the portraiture right happens when a portrait has been used without permission but with profit-making purpose.
Can the organizer stop the photographer?
Usually the organizer of the event sets up certain rules and tries to make aware the attendees by sending email, distributing in written copies, affixing in the premises, declaring by voice at the entrance and so on. What happen if any of the attendees does not respect the rules?
In the practice the organizer can remind the attendee to respect the rules once or twice by voice. If the attendee still disobeys the rules, the organizer can then accompany the attendee to the exit. Usually, it is difficult to claim against the attendee for breach of contract and damage compensation, and therefore the most commonly used tool is the expulsion from the premises for the attendee who does not abide by the rules fixed by the event organizer.
Who is the owner of photos shot during a concert?
In accordance with the Article 9 of the Copyright Law of the People’s Republic of China, the author of a work shall be the citizen who has created the work. Nevertheless, where a work is organized by a legal person or any other organization, created on behalf of the legal person or the organization, and for which the legal person or the organization bears responsibility, the legal person or the organization shall be deemed as the author. Where there is no evidence to the contrary, the citizen, legal person or organization whose name is stated on the work shall be deemed as the author.
Under Chinese Copyright Law, the performer or producer of the concert has the following rights: (1) state his/her identity; (2) protect the performance from distortion; (3) license others to make live broadcast and public transmission; (4) license others to make audio-visual recording; (5) license others to replicate or distribute audio-visual recordings; and (6) license others to transmit the performance to the public through information network.
According to the practice, the shooting of photo during a live event does not fall in any of the above-mentioned items, and therefore the performer or producer is not entitled of the right against audience for taking pictures. The copyright on the photos stays with the author.
