Earlier this year, Nobel Prize winner Mo Yan was awarded compensation of 2.1 million yuan ($298,000) after winning a lawsuit he brought against a company that infringed his personality rights by using his name and image in an advertisement without permission.

According to Mo's lawyer, Liu Ruzhong, from the Tahota Law Firm in Beijing, the compensation was a record for a case of this kind in China, and it was the first time the writer had brought such a lawsuit since winning the Nobel Prize in Literature in 2012.

In China, businesses often use celebrities' images without permission in promotional videos they post on the internet.

In response, a growing number of well-known figures are bringing cases to court, despite difficulties in conducting investigations and collecting evidence.

Resolving such cases in court helps to improve society's legal awareness and deters businesspeople who have potentially illegal intentions. However, the low level of compensation awarded remains a major reason for the frequent violations, according to lawyers.

In December last year, Yuci Technology, which sells cooking pots online, posted a promo on the internet in which Mo appeared to be acting as an official spokesman for, and fan of, the company's products.

The video featured a photo of Mo with Dong Zhenlei, CEO of Yuci Technology, which is based in Shenzhen, Guangdong province. It also showed an example of the writer's calligraphy skills in a poem about ceramics, and the voice-over told how the two men had met.

The promo claimed that after using one of the company's pots, Mo had praised the product and invited Dong to visit his home and accept the handwritten poem. In addition, it stated that the two regarded each other as "comrades" and had discussed literature and ceramics.

At the end of the video, a voice actor imitated Mo, saying: "Food cooked in this pot tastes delicious and is good for the health. Other pots that contain metal carcinogens should be discarded. I hope you sell it (the pot) to the world for the benefit of human health."

Mo has never been a spokesman for the company and has not authorized the use of his name or the photo, Liu said.

A kind gesture

The story began last year, when a mailroom worker in Mo's residential compound begged the writer for help. He said his wife had received help from Dong, but she had no way of thanking him. He asked Mo for a sample of his calligraphy to present to Dong.

Because Dong sold ceramic pots, Mo copied a famous Ming Dynasty (1368-1644) poem about ceramics and gave it to the worker. He didn't meet Dong in person. A few days later, the worker begged Mo to allow Dong to visit him, and also asked him to sign a book for the businessman. Mo agreed.

During the visit, Dong asked to have a photo taken with Mo. He also produced one of Mo's books and asked him to sign it. Because both men had served in the army, Mo wrote "For my comrade…" as a dedication.

The photos were later used by the company in the video, which spread quickly on the internet, and was also used in promotional activities.

Mo Yan. [Photo/Xinhua]

"Mo never expected that others would take advantage of his kind gesture to make profits. The quality of the product was doubtful, and, in addition, the company was suspected of pyramid selling. It used Mo's fame and reputation to convince more people to buy its goods," Liu said.

"As a result, Mo's readers, people who bought the pots, and manufacturers of metal pots raised doubts (that Mo was genuinely involved), leaving him trapped in a deep public misunderstanding."

Liu added that Mo decided to bring the case because he was at the end of his tether with regard to the unlawful use of his name and image.

Usually, he simply instructed his lawyers to issue a cease-and-desist order, rather than go to court, but the case involving Yuci Technology caused a great deal of trouble for Mo and people who bought the pot because they believed he was a spokesman for the company.

"It was not only to protect Mo's own interests, but also many innocent victims," Liu said.

The case was heard at Shenzhen Bao'an District People's Court, Guangdong, in February.

Internet

According to Zhu Xiaolei, a lawyer with the Beijing Xingquan Law Firm, which specializes in dealing with personality rights disputes for celebrities, the internet's popularity means many company promo videos use celebrities' images and videos without permission.

"They spread widely and quickly via social media, so within a short time the infringers can receive big benefits, which makes them even more brazen," said Zhu, who launched the law firm in 2015 and has more than 200 star clients, including actors Fan Bingbing, Jimmy Lin and Huang Xiaoming.

In 2017, Doulang, a company in Xiamen, Fujian province, that provides event organizing services, posted a promo video on its social media account containing footage of Fan culled from a promotion she had done for another company.

Doulang substituted its own name on the logo on a microphone Fan was holding and on the background. Meanwhile, a voice actor imitated Fan on the soundtrack, giving viewers the impression she was a company spokesperson.

"We later discovered that some e-commerce platforms provide such video-editing services," said Zhu, who handled the case.

"It's worrying. These illegal activities disturb the endorsement market-solving the issue will require police investigations and crackdowns."

In recent years, the legal awareness of celebrities has been rising and many are choosing to bring matters to court, despite difficulties such as the long duration of such cases and problems obtaining evidence, he said.

"Moreover, the courts have also made more such cases public, which provides social guidance," he added.

Zhu said the main reason businesses frequently infringe celebrities' personality rights is that the punishments are not harsh enough to deter them.

Punishment

Unlike in Western countries, the low compensation awarded in China makes businesspeople take the risk because the amount awarded is unlikely to be much higher than a standard endorsement fee, he said.

In June, the Shenzhen court ruled in favor of Mo, saying Yuci Technology had used his name and image for commercial promotion without permission and had created an image of Mo as a spokesperson for the company's products.

The company had infringed Mo's name and image rights and should bear legal responsibility, the verdict said.

The court ordered the company to stop infringing Mo's rights, delete the video, publish a letter of apology in newspapers, and pay Mo 2 million yuan for loss of intellectual property and 100,000 yuan for mental anguish.

According to Liu, Mo had not previously endorsed any products, so the court was unable to accurately assess the level of damage caused.

However, the law stipulates that for such an incident courts can award compensation of up to 500,000 yuan.

"In Mo's case, the court broke the limit in a pioneering way, considering that the amount of compensation determined under the general standard could not make up for the plaintiff's loss and was not enough to punish the defendant," Liu said.

"It is a fair award that effectively protects legitimate rights and punishes the infringer. The high compensation is a deterrent to lawbreakers and provides a guide for future cases."

Zhu, from Beijing Xingquan Law Firm, said, "The compensation in Mo's case was very high, but compensation judgments are usually very conservative in China, which effectively indulges the infringer's behavior."

However, some courts are starting to award differing sums depending on the severity of the case, he added.

Change of direction

Last month, Wu Yifan, a popular actor and singer, was awarded compensation of 2 million yuan in an image rights case that was heard at Haidian District People's Court in Beijing.

The sum was the highest compensation award in such a case at the court, according to officials.

Yujin, a catering company in Guangzhou, Guangdong, used Wu's image without authorization in an advertisement.

It edited his picture into a poster and website image, and also used his signature and supposed words of recommendation.

The promo was then disseminated on the internet and used in the company's franchise store nationwide, the court ruling said.

"The infringement is obviously subjective and intentional, which is very serious and deserves harsh punishment," it said.

Zhu, who handled the case, said, "The high compensation in this case indicated a tendency toward higher compensation in cases of this kind."

In September, Chinese actor, singer Wallace Chung was also awarded a compensation of 2 million yuan in an image right case that was heard at Guangzhou Internet Court. The case was handled by Zhu's law firm.

In December last year, Lu Han, a popular singer and actor, received compensation of 300,000 yuan in a case of image-rights violation. A catering company in Hangzhou, Zhejiang province, had used his portrait and signature in a promotion without permission.

In July, the same company was ordered to compensate Angelababy, a popular actress, 1 million yuan for illegally using her name and image in an advertisement.

The cases were heard by the same court, but the compensation awarded was very different.

"It was because the fine of 300,000 yuan in the first case was not enough to stop the company's illegal behavior," said Zhu, who handled the cases.

"After some time, the company took the risk of doing the same thing to another popular star. In the second case, the judge thought the issue was so serious that he awarded far higher compensation."

Liu and Zhu both urged raising the standard level of compensation in disputes related to celebrities' personality rights.

"At the very least, the bottom line for compensation awards should not be lower than the standard endorsement fee," Zhu said.