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乔布斯去世后肖像权受中国法律保护吗?

我们上周发布的《如何打击中国市场上的侵权乔布斯玩偶》一文,介绍了关于制止肖像权侵权行为的中国法律。之后,我们阅读到了美国法律人士的一篇文章:《苹果公司无法停止其他州出售乔布斯玩偶》http://www.cultofmac.com/138400/apple-wont-be-able-to-stop-steve-jobs-action-figure-from-going-on-sale-in-most-staes/ 文中称:苹果的诉讼请求是假的。虽然我们对我们的肖像享有肖像权,但是这些权利通常只由活着的人才享有。不像专利权、著作权等其他知识产权,绝大多数地方法律规定人死亡以后就不享有肖像权了。

根据该文,美国多数地方都不支持保护死者的肖像权,但中国和美国的法律并不一样,我们今天将和读者探讨介绍中国法律法规就在中国死者肖像权保护的有关法律法规。

问题一、自然人死亡之后是否仍享有肖像权。

中国是大陆法系国家,有关肖像权之类的人身权利的法律规定与其他国家一致,根据《民法通则》第五条的规定,公民的人身权始于出生,终于死亡。也就是说,自然人死亡之后就不享有肖像权了。

问题二、死者的肖像受不受法律保护?

虽然我国法律并不承认自然人死亡之后仍然享有人身权,但实践中对死者的肖像仍然是保护的。《最高人民法院关于确定民事侵权精神损害赔偿责任若干问题的解释》第三条明确规定:自然人死亡后,其近亲属因下列侵权行为遭受精神痛苦,向人民法院起诉请求赔偿精神损害的,人民法院应当依法予以受理:

(一)以侮辱、诽谤、贬损、丑化或者违反社会公共利益、社会公德的其他方式,侵害死者姓名、肖像、名誉、荣誉;(二)非法披露、利用死者隐私,或者以违反社会公共利益、社会公德的其他方式侵害死者隐私;(三)非法利用、损害遗体、遗骨,或者以违反社会公共利益、社会公德的其他方式侵害遗体、遗骨。

问题三、以死者的肖像进行营利是不是侵权?

根据前述法律规定的逻辑:只有侮辱性使用死者肖像的才构成侵权。那么营利性使用死者肖像的应该不属于侵权行为,但这个逻辑是隐含的而不是明示的。而中国的司法实践非常复杂,我们检索到多个案例,显示中国各地法院在对该问题的认知上存在很大差异,只有少部分法院遵守前述立法逻辑。大部分法院认为营利为目的使用死者肖像权属于侵犯死者亲属权益的行为,还有的法院则认为使用死者肖像权构成不当得利。详见http://gdb.0738.cc/ViewInfo.asp?id=386 和  http://www.gmw.cn/01shsb/2000-10/10/GB/1… 。我们还在中国最高法院http://www.chinacourt.org/html/article/200210/10/13544.shtml 及云南省高级人民法院的网站http://www.gy.yn.gov.cn/Article/jczt/fyyj/201012/21634.html 查到了多篇法院法官撰写的论文,均认为营利为目的使用死者肖像权属于侵犯死者亲属权益的行为。

问题四、乔布斯的肖像权应该适用中国法还是美国法?这是一个国际私法问题,即乔布斯身份权的准据法是中国法还是美国法。根据中国法律规定,法院审判涉及外国人人身权利的案件,应当先确定适用哪个国家的法律作为准据法以认定人身权是否有效。如果准据法为美国不支持保护死者肖像的州的法律,则权利人方败诉概率更大,如果准据法为中国法律或者美国不支持保护死者肖像的州的法律,则权利人胜诉概率更大。

但即便是这个问题也不是非常确定,中国2011年颁布的《涉外民事关系法律适用法》中有两条涉及这个问题的规定,第44条:“侵权责任,适用侵权行为地法律。”第46条“通过网络或者采用其他方式侵害姓名权、肖像权、名誉权、隐私权等人格权的,适用被侵权人经常居所地法律”。因此,如果权利人在中国法院起诉乔布斯玩偶的制造商或者非网络零售商在中国侵权的,则准据法为中国法律。如果权利人在中国法院就乔布斯玩偶的网络销售行为起诉的,则准据法为乔布斯居住地所在州的美国法。

综上,我们认为,即便在中国,未经乔布斯亲属同意出售乔布斯玩偶的行为是否属于侵权也是一个非常复杂的法律问题,如果乔布斯的亲属或者苹果公司决定在中国维权的,他们的代理律师将会费很大精力来解决上述理论问题。

本文作者:陈丹红,香港中文大学法学硕士,上海大邦律师事务所律师助理。游云庭,上海大邦律师事务所合伙人,知识产权律师,电话:8621-52134900,Email:  yytbest at gmail.com,本文仅代表…


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