Movie star wins right of portrait case

The First Intermediate People's Court of Chongqing Municipality in the People's Republic of China (PRC) has ruled that Chinese company Zhuhai Dong Yang Zhi Hua Cosmetic Company Limited's (Dong Yang Zhi Hua) use of pictures of Hong Kong film star Cecilia Cheung Pak-chi on its products without authorization infringed her right of portrait . The case is one of a series of disputes between Cheung and Dong Yang Zhi Hua.

The disputes started when Dong Yang Zhi Hua filed a lawsuit with a Beijing court against Cheung in 2001 for breach of contract, alleging that Cheung had violated the terms of an agreement entered into by the parties in 2000 in which Cheung agreed to participate in an advertising campaign in the PRC promoting Dong Yang Zhi Hua's skin care and shower gel products. Dong Yang Zhi Hua alleged that Cheung had performed spokeswoman duties for a rival company during the term of the agreement. The Beijing court ordered Cheung to pay Rmb1.25 million in damages to Dong Yang Zhi Hua.

Subsequently, Cheung commenced various actions against Dong Yang Zhi Hua in different courts in the PRC for breach of contract or infringement of her right of portrait, claiming that Dong Yang Zhi Hua had continued to use her pictures in promotions or on products out of the scope or after the expiry of the term of the agreement.

Cheung settled the case for infringement of right of portrait in Shanghai through mediation last year on condition that Dong Yang Zhi Hua pay damages of Rmb510,000 to her and cease dealing with products infringing her right of portrait. Cheung also won her case for breach of contract at the appeal stage in Beijing earlier this year and was awarded damages of Rmb510,000.

In the latest case, which was heard by the First Intermediate People's Court of Chongqing Municipality, the court considered that the use of Cheung's picture by Dong Yang Zhi Hau on shampoo and soap products was outside the scope of the agreement, and not covered by the terms of the settlement in Shanghai. It thus constituted an infringement of Cheung's right of portrait. The act was in violation of Article 100 of the General Principles of the Civil Law of the PRC, which provides that: "Citizens shall enjoy the right of portrait. The use of a citizen's portrait for profit without his/her consent shall be prohibited".

The Chongqing court ordered Dong Yang Zhi Hua to:

• cease immediately the infringing activities;
  
  
• destroy all packaging of the infringing products;
  
  
• publish an apology in a newspaper; and
  
  
• pay Rmb510,000 as damages to Cheung.

The court also ordered the second defendant in the case, a supermarket chain that distributed the infringing products, to bear half of the damages.

The Chongqing court's decision does not appear to have brought an end to the dispute between Cheung and the cosmetics company. Another right of portrait action brought by Cheung against Dong Yang Zhi Hua in Hefei Municipality in the PRC has yet to be decided.

It remains to be seen whether Dong Yang Zhi Hua will file an appeal against the Chongqing court's decision.

Amy Lee, Johnson Stokes & Master, Hong Kong