This is an informal case summary prepared for the purposes of facilitating exchange during the 2025 WIPO IP Judges Forum.
Session 6: Personality Rights
Chongqing No. 1 Intermediate People’s Court, China [2023]: Peng v Chongqing XX Technology Co., Ltd
Date of judgment: May 19, 2023
Issuing authority: Chongqing No. 1 Intermediate People's Court
Level of the issuing authority: Final Instance
Type of procedure: Judicial (Civil)
Subject matter: Others
Plaintiff: Peng
Defendant: Chongqing XX Technology Co., Ltd.
Keywords: personality right, portrait right, artificial intelligence, civil law
Basic facts: A software operation company developed and operates software that allows paying members to use other people’s photos for facial replacement (commonly known as "face-swapping") to generate works with the face of that other person. Without the consent of Peng Momo, the company independently put Peng Momo's portrait on the software for members to "swap faces" and profited from that arrangement. Peng Momo believed that his portrait right was infringed. Peng Momo brought a lawsuit to the court, requesting an order for the software operation company to make an apology and compensate for losses totaling more than 50,000 yuan.
Held: The hearing court held that the portrait right of a natural person is protected by law. Without the consent of the natural person, others shall not make, use, or disclose the portrait of the natural person. If the portrait right of a natural person is infringed, they have the right to request the cessation of the infringement, the elimination of the impact, an apology, and may request compensation for losses. A certain software operation company, without the authorization and consent of Peng Momo, used photos and videos containing Peng Momo's portrait for the purpose of profit, infringing on Peng Momo's portrait right and shall bear corresponding civil liability. The final judgment: The certain software operation company shall apologize to Peng Momo and compensate for the loss of 3,000 yuan.
Relevant holdings in relation to Personality Rights: The portrait right of natural persons is protected by law. Without the consent of the person, the portrait of the natural person may not be made, used, or disclosed. Developers and users of Internet information technology that use another person's portrait without permission for users to carry out "face-swapping" is committing an infringement on another person's portrait right and shall bear the infringement liability in accordance with the law. If the infringer claims to be a non-infringement subject or has not implemented the infringing behavior on the grounds that the corresponding software has been completely removed from the app market, the court may make a determination in accordance with the law by combining factors such as whether the application software can be obtained through other channels, whether it is updated, the software operation and charging subject, etc.
Relevant legislation: Articles 1018, 1019, and 1165 of the Civil Code of the People's Republic of China
Article 1018: A natural person enjoys the right to likeness, and is entitled to make, use, publicize, or authorize others to use his image in accordance with law. The likeness is an external image of a specific natural person reflected in video recordings, sculptures, drawings, or on other media by which the person can be identified.
Article 1019: No organization or individual may infringe upon another person's right of portraiture by means of vilification, defamation, or forgery by using information technology. Without the consent of the person whose portraiture right is involved, no one may produce, use, or publicly disclose the portraiture of such person, unless otherwise provided by law. Without the consent of the person whose portraiture right is involved, the holder of the copyright in a portrait work may not use or publicly disclose the portraiture of such person by means of publication, reproduction, distribution, lease, exhibition, etc., unless otherwise provided by law.
Article 1165: A perpetrator who, through his fault, infringes upon another person's civil law rights and interests and causes damage shall bear tort liability. Where a perpetrator is presumed to be at fault according to the provisions of law and is unable to prove that he is not at fault, the perpetrator shall bear tort liability.