Maradona successfully protects right of portrait against online game company


In China, lawsuits involving the unauthorised use of celebrities’ portraits or images are fairly common. For example, Yao Ming - a famous Chinese former NBA player - has filed several actions in China against the unauthorised use of his portrait in commercials. Zhao Benshan, a famous Chinese actor, successfully prevented the commercial use of a cartoon image based on his portrait. 

The value of the right of portrait has increased significantly but, generally, the damages awarded by the courts have not been substantial. In June 2013 former football star Diego Maradona won a lawsuit in Beijing against a well-known online game company, Shanghai Ninth City Information Technology Co Ltd, and was awarded damages of Rmb3 million ($490,000). 

In 2010 Maradona discovered that the defendant had released an advertisement on its official website in which Maradona appeared to endorse the “Blood Sphere” game. The advertisement featured Maradona’s portrait and signature.

Maradona claimed that the defendant had not been authorised to use his portrait; in contrast, the defendant argued that Maradona had previously agreed to sign a contract to endorse a football-themed game. However, the defendant could not prove the existence of such an endorsement. 

Maradona then filed suit in the Beijing First Intermediate People's Court, claiming Rmb20 million in compensation and demanding that the defendant stop using his portrait and signature in connection with the “Blood Sphere” game. Maradona made a personal appearance to testify in the Beijing court, even though an appearance is often not required under Chinese law. This attracted a lot of publicity and press attention. 

In the court decision issued last month, the court held that the right of portrait is enjoyed by everybody, but that the property rights embodied in portraits may differ. Maradona is a renowned former football player and coach, and his portrait represents huge business interests. Because the defendant used Maradona’s portrait without authorisation, such use constituted infringement of Maradona’s right of portrait.

The court thus ordered the defendant to pay Maradona Rmb3 million for economic loss. It is unclear how the court calculated the amount damages, but it appears that the court used its own discretion.  

At the time of writing, it was unknown whether either party had appealed. It will be interesting to see whether Maradona appeals the amount of damages. In China, the courts tend to be conservative in awarding damages in IP and other types of civil cases. This is partly due to the consideration of how valuable intellectual property might be, and partly due to the fear that big damage awards may encourage unwanted civil lawsuits.  Last year, the Chinese courts heard approximately 87,000 new IP cases, and when it comes to publicity rights, the courts may face the same dilemma. Images of celebrities, both Chinese and foreign, are commonly seen in TV advertisements and billboards. The courts must provide effective protections.    

He Jing and Chang Zonglin, AnJie Law Firm, Beijing

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