In addition to facing huge economic losses, celebrities also have many costs on the way to protect their rights, such as damage to their reputation, difficulty in obtaining evidence, and so on. Even if they win the lawsuit, once the company passively avoids it, they will need to face the problem of not receiving compensation and the result of not receiving a public apology.
Author |Yin Wanni, editor|Lone pigeon.
Recently, in addition to movie-related publicity, Andy Lau has made other news headlines.
A packaging bag called "New Desert Lactic Acid Bacteria Sauerkraut" in Northeast China is printed with Andy Lau**, as well as the words "Andy Lau, the star of the movie "Bomb Disposal Expert 2", join hands to help the new Desert Sauerkraut". Netizens were confused for a while: Could it be that Andy Lau endorsed sauerkraut?
On December 12, Andy Lau's brokerage company Hengtai Huanyu *** issued a statement on its official website, saying that Andy Lau did not authorize any company or individual to use his portrait and name on related products such as "Xinkai Desert Lactic Acid Bacteria Sauerkraut".
In other words, Andy Lau was "endorsed", which is a typical case of false advertising infringement.
In fact, the number of brands that have been involved in portrait rights infringement disputes with Andy Lau is very large. As of December 21, Andy Lau's agency has issued 91 infringement statements only for endorsement false advertisements in 2023, and the infringing brands include goat's milk, sauerkraut, zongzi, selenium-rich rice, yak meat and other food categories.
Absurdly, there are rare niche categories such as ** stickers, hyperbaric oxygen chambers, fluctuation meters, building repairs, paint protective films, and valet parking services.
In huge contrast, according to the statistics of Aiman, from 2017 to the present, Andy Lau has only 5 formal endorsements. A senior advertising industry insider revealed to the blogger, "Andy Lau's team is very cautious about endorsements, there are too many people looking for Andy Lau to endorse, and the prices are very high, but he also refuses a lot, and the background check on the brand is also very rigorous." ”
This year, Andy Lau, who served as a brand ambassador, shot a promotional video for Huawei mobile phones.
Even so, "being endorsed" is still a pit that Andy Lau is difficult to avoid, and this phenomenon also exists in many celebrities, behind the rampant false advertising is a ** interest chain that uses star effect to make profits.
This time Andy Lau's "endorsement" incident is not an exception. "A movie starring hand in hand to help a brand" is a common promotional slogan paradigm used by many companies that infringe on the image rights of celebrities, because the words "hand in hand" do not have a clear endorsement meaning, and the brand thinks smartly that it can avoid the risk of infringement by the defendant.
It is worth noting that just two days after the fermentation of the Andy Lau sauerkraut incident, the portrait right dispute between Hong Kong actor Louis Koo and Foshan Shengpnuo Door and Window Technology *** has a verdict.
According to the civil judgment of the first instance, Gu Tianle's portrait and name were used extensively in a series of commercial activities such as the production, publicity, and sales of "San Bono doors and windows" brand products, and directly with his "San Bono doors and windows" brand and products, and the portrait content was annotated with text content such as ""Keep Talking" starring Gu Tianle helped San Bono doors and windows".
In the end, the company was sentenced to compensate Louis Koo for economic losses of 200,000 yuan. Is this sufficient to compensate for the plaintiff's financial losses?In this regard, the blogger asked Shanghai Junlin Law Firm about it, and lawyer Huang Li said: "In China's judicial practice, it is difficult for the infringed party to prove the actual loss or the amount of profit of the infringer by adducing evidence, so it is more important for the judge to determine the amount of compensation based on factors such as the social reputation of the infringed party, the form of infringement, the degree of subjective fault of the infringing party, and the consequences of infringement. ”
Louis Koo and Foshan Shengpnuo Door and Window Technology Co., Ltd. in the first instance civil judgment of the portrait right dispute.
She further added: "The compensation amount of 200,000 yuan is relatively high in portrait rights disputes. ”
However, compared with the ** in the celebrity endorsement market, 200,000 yuan is obviously not a large amount. An advertising industry insider who once inquired about Andy Lau's team and sought cooperation revealed that its endorsement ** is dozens or even hundreds of times that of this number.
In other words, for the infringing enterprise, this seems to be a profitable business, driven by profits, and does not hesitate to take risks.
Celebrities have also taken more active action in defending their rights. According to Andy Lau's official website, in the five years from 2014 to 2019, it only issued 19 statements about brand infringement, and from 2021, the team took more frequent rights protection actions, and the number of statements issued has also doubled.
It is worth noting that 2021 is a year in which Andy Lau has gained huge traffic among young people. On January 27, Andy Lau entered Douyin, which is his first social account since his debut 40 years ago, and the number of fans exceeded 24 million in just 24 hours. During the Spring Festival of the same year, the movie "The Crowd" starring him was released, and the box office exceeded 700 million yuan.
And what really pushed Andy Lau to the throne of the king of traffic was an online concert. In 2022, Andy Lau held a concert of "Sing Me to You" in the Douyin live broadcast room, with a number of ** people reaching 3500 million, a number of ** data created a live broadcast record on Douyin.
In today's world where traffic can be directly related to commercial value, the rising popularity is the best proof of the commercial value of this veteran Hong Kong star. This also made a number of companies aim at his traffic dividends, and even did not hesitate to arbitrage profits by infringement.
It is understood that in addition to some relatively remote small cities, the Pearl River Delta region is also the hardest hit area of this kind of endorsement chaos, because local enterprises and consumers are more recognized by Hong Kong Star. At the same time, compared with mainland stars, some Hong Kong artists do not have teams in the mainland, and the cost of rights protection is higher.
In the farce of "being endorsed" that occurs repeatedly, there is a role that cannot be ignored, which is the ** company that claims to be able to provide authorized services.
In this type of "endorsement" case, there are many brands that claim to have used the stills involved in the case that have been authorized.
In fact, there are indeed some ** companies in the market that specialize in providing this kind of "authorized services" to the brand, and they call their business "star stills help", and the common saying is: the brand owner uses the stills of the star in a film and television work to promote the brand and products with the permission of the copyright owner, and from another point of view, it is also to assist in the promotion of film and television works.
*The company usually informs the brand in advance that "celebrity stills assistance" is different from celebrity endorsements, and the words marked by the brand on the promotional materials can only be "starring work + name", and the word "endorsement" is replaced by "help".
However, through this channel, the brands of ** celebrities do publicity, but very few use stills in promotional materials, and more still use celebrity photos. After all, a photo is more like an endorsement.
Secondly, the help of stills is far lower than that of celebrity endorsements. The blogger contacted 3 ** companies that do "star stills assistance" business and consulted a well-known female artist of the Mesozoic Generation**, and the replies given by the three companies were 70,000 yuan, 100,000 yuan, and 130,000 yuan respectively. When asked about the female artist's portrait endorsement, one of the ** companies gave a reply of about 5 million yuan.
The price difference of dozens of times makes it easy for many small and medium-sized businesses to make a choice, even if they are suspected of violating the law.
An advertising industry insider revealed to the blogger that some brands would initially discuss endorsements with celebrities through formal channels, but because of the inconsistency of the brand tone or product quality problems, the artist refused to cooperate. Knowing that the artist has not obtained the portrait authorization of the artist himself, the brand forcibly uses the artist's **, or promotes it through the method of "star stills assistance".
In order to dispel some brands' concerns about copyright, many ** companies will also claim to provide licensing documents. The blogger got two authorization documents provided by a ** company, but found that the layout and writing format of the two documents were completely different.
The vulnerabilities are much more than that. One of the documents was stamped with the seal of a film crew, not even a company. In the other example of the authorization letter, key information such as Party A's company and the licensor have been erased. As a result, it is difficult to prove through this authorization document that the ** company really has the copyright of the star's stills.
Regarding the question of whether the authorization document provided by the third party has legal benefits and can prevent the brand owner from being held liable, lawyer Zhu Jieping replied: "If the authorization document meets all the requirements of authorization, it is valid. The brand owner can also enjoy rights according to the scope of the authorization, and whether it can avoid liability depends on the specific content of the authorization. ”
In fact, in this industrial chain, playing the side ball and obscuring information are the most commonly used means.
Although there is a risk, the huge price difference is profitable, so that the company is not willing to give up this business.
Yang Mi's studio once posted on Weibo that from 2018 to 2019, the number of cases of infringement of Yang Mi's name rights and portrait rights reached 17. According to the China Judgment Network, in the 21 portrait rights infringement cases that Yang Mi has suffered in the past few years, the maximum amount of compensation for the economic losses of the parties is 250,000 yuan, and the lowest is 5,000 yuan.
Yang Mi Studio issued a statement.
As of December 21, a total of 7,148 documents can be retrieved from the online search of "portrait right disputes" in China's judgment documents, involving Liu Tao, Gu Tianle, Zhao Lusi, Wang Xinling, Wu Xin and many other celebrity portrait rights disputes.
Wang Xi, who is engaged in artist publicity, told the blogger that the unboxing ** taken by a female artist in his company was used as promotional materials for the product by the brand without authorization.
Usually, when brands promote their products, they will release materials through social platforms such as Weibo, Xiaohongshu, and Douyin. Fans and artist teams will monitor each platform to see if there are any brands using artists without authorization**.
At that time, when talking about cooperation, the two parties agreed that the **exposure channel was only the official blog of the brand and the official blog of the shooting**. Later, we found out that the brand was used in other channels, so we communicated with the other party and asked the other party to delete it. Wang Xi is very sure of the effectiveness of this channel of online monitoring, "The network is very developed, if you really do (infringement), you can't hide it." ”
The ** companies that provide star stills to help the business undoubtedly understand this, and for the purpose of risk avoidance, most of them require brands to only use promotional materials in channels such as stores and supermarkets to reduce the probability of being discovered.
The blogger consulted a staff member of **company, and when asked whether the promotional materials could be used on **, the reply given by the other party was "the online part can be used, but it depends on how to use it". When further asked for details, the other party vaguely replied "It is all in the contract".
The cunning evasion strategy has greatly increased the cost of protecting the rights of celebrities. "In addition to the economic cost, celebrities also have to bear the cost of evidence collection and public opinion. Zhang Zhipeng, secretary general of the Content Marketing and Advertising Spokesperson Working Committee of the China Advertising Association, said, "A star once came to the association to consult on rights protection issues, and they found more than 20,000 infringing pictures and ** on the Internet, but the channels for brand release are all private domain channels, such as personal social platforms, WeChat group chats, etc., and it is difficult for celebrities to sue individuals who publish infringing information one by one." ”
For this case, everyone knew that the infringing party was the company behind it, so they finally sued the company through the product packaging in the brand's live broadcast room and won the lawsuit.
However, it is not uncommon for the infringing company to refuse to comply with its legal obligations and refuse to pay compensation. Wu Jing once initiated rights protection against the wolf brand management *** for using his portrait on the outer packaging of betel nut products and marking the words "Wu Jing Assist", and the company was sentenced to compensate Wu Jing 3420,000 yuan, and was later taken to restrict consumption due to failure to fulfill payment obligations.
Regarding the negative impact of corporate abuse of portrait on celebrities, Zhang Zhipeng explained: "Consumers mistakenly believe false endorsements and buy products, once there is a problem with the product, consumers may go to the celebrity to defend their rights, and the celebrity's reputation will also be negatively affected." ”
Nowadays, there are various ways of infringement on the market, the phenomenon of infringement of portrait rights has been repeatedly prohibited, and celebrities' awareness of protecting their name rights and portrait rights is also increasing. But even if it is a celebrity, the cost of rights protection is not low, and once the company passively avoids it, it will face no compensation and no public apology.
Merchants try to obtain high profits at a low cost by not knowing their infringementConsumers are confused, not knowing whether the products they buy are really being platformed by celebrities;Celebrities fall into the situation of "being endorsed" for unknown ......As long as it is profitable, this farce of "being endorsed" seems to be difficult to end.
At the request of the interviewee, Wang Xi in the article is a pseudonym).