Case No.（2023）京0491民初12766号

A recent legal case involving artificial intelligence face-swapping technology has emerged, with the plaintiff, Lin Moumou, initiating a lawsuit against Beijing Technology Co., Ltd. The plaintiff seeks judicial intervention to address alleged online infringement, specifically requesting the court to mandate the defendant to: 1) issue a public apology, prominently displayed on the homepage of the “Xitao” mobile application for a duration of 30 days, with the content subject to court approval; and 2) provide compensation for economic damages, moral damages, legal fees, and costs associated with evidence collection.

The context of the case is as follows:

The plaintiff is an individual who is recognized as an internet influencer and Hanfu model, frequently collaborating with photographers and producing short videos that showcase traditional Chinese attire, which are disseminated on platforms such as Douyin and Xiaohongshu. The plaintiff’s Douyin account, identified as “xxx” and nicknamed “Lin xx,” boasts an audience of 370,000 followers and has garnered a total of 64,860,000 likes across 357 original works featuring personal portraits.

The plaintiff alleges that the defendant unlawfully uploaded a short video utilizing the plaintiff’s likeness as original content within the “Xitao” face-swapping application, thereby enabling users to engage in face-swapping for profit (notably, users must purchase a membership to save the modified videos). This action is claimed to infringe upon the plaintiff’s portrait rights, which encompass the rights to create, utilize, and preserve the integrity of their own likeness.

In defense, the defendant contends that no infringement of portrait rights occurred and disputes all claims made by the plaintiff, primarily on the following grounds:

1. The portrait right is a personal right inherent to individuals, yet the video presented by the plaintiff does not feature the plaintiff’s likeness (comparative analysis of the plaintiff’s video and the one uploaded on Xiaohongshu indicates they depict different individuals).
2. The defendant operates as an information network storage service provider, offering technical services and adhering to notification and deletion protocols. The contested video was uploaded by users, and prior to the lawsuit, the defendant had ceased operations related to the project, thus asserting that it should not be held liable for tort.
3. The plaintiff is not a widely recognized actor or artist, and the contested video received minimal engagement, with only 27 likes and 2 comments on relevant platforms, suggesting no significant harm was inflicted upon the plaintiff.
4. The plaintiff’s legal representation is a professional rights protection team, raising suspicions that the litigation may be motivated by profit rather than genuine grievance.
5. The defendant’s application reportedly suffered substantial financial losses during its operation.

The defendant also referenced Civil Judgment No. 6529 from 2023 to support its position, which determined that similar actions did not constitute an infringement of portrait rights.

The court’s ruling established that the defendant is the operator of the “Xitao” software and acknowledged that the original video submitted by the plaintiff was indeed operated by the defendant. However, the court concluded that the evidence provided by the plaintiff was insufficient to substantiate claims of portrait rights infringement, leading to the dismissal of the plaintiff’s claims. Although the court recognized that the defendant utilized the plaintiff’s video to create and upload the contested template video, it did not find this to infringe upon the plaintiff’s portrait rights.

The court’s reasoning included the following points:

1. the contested template video did not represent the plaintiff’s likeness;
2. the defendant did not engage in any statutory actions that would infringe upon the plaintiff’s portrait rights;
3. the plaintiff’s assertion of “likeness integrity” lacked legal foundation; and
4. extending the protection of portrait rights to encompass makeup, hairstyles, and clothing could lead to an excessive limitation on the rights of individuals, thereby exceeding necessary boundaries.

The legal basis for the court’s determination of non-infringement primarily referenced Article 1018, Paragraph 2, and Article 1019 of the Civil Code. Article 1018, Paragraph 2 defines a portrait as an identifiable external image of a specific individual, captured through various mediums. The court concluded that the contested template video did not meet the criteria for identification as the plaintiff’s portrait, reasoning that a portrait is an objective representation of an individual’s face and that portrait rights are fundamentally linked to the recognition of that individual.

The court emphasized that while the scope of portrait rights may evolve with technological advancements, it must still adhere to legal standards that ensure the image reflects a specific individual. In this case, the facial features of the characters in the contested video were not merely altered but replaced, thereby undermining the individual recognition associated with the plaintiff’s likeness. The court determined that the general public would identify the individual in the template video as someone other than the plaintiff.

Furthermore, the court noted that the plaintiff’s claims regarding the use of makeup, hairstyles, and clothing in the contested video did not constitute elements that are inseparable from a specific individual, as these features are easily replicable and do not correspond uniquely to any one person.

In conclusion, the court found that the defendant Xitao Application did not infringe upon the plaintiff’s portrait rights, as the actions taken did not involve the production of a video containing the plaintiff’s likeness, nor did they utilize recognizable elements of the plaintiff’s identity in a manner that would violate legal protections.

If you are interested in China AIGC rulings and judgements, please feel free to email me:  liangwen@zhonglun.com.