On June 5438+February 1, 2009, the first law in China was promulgated, requiring wedding companies to return all original video materials including negatives free of charge.

And according to the People's Republic of China (PRC) Consumer Protection Law? "Twenty-fourth operators shall not make unfair and unreasonable provisions to consumers in the form of standard contracts, notices, statements, store notices, etc. , or reduce or exempt its civil liability for harming the legitimate rights and interests of consumers. Format contracts, notices, statements, shop notices, etc. If it contains the contents listed in the preceding paragraph, its contents are invalid. "

People's Republic of China (PRC) Copyright Law? Article 18 The transfer of ownership of artistic original works and other works shall not be regarded as the transfer of copyright, but the right to display artistic original works shall be enjoyed by the original owner.

Extended data:

Case study:

Q:? On September 2, 2000, I took a set of 1 1 art photos in a photography studio in Sanming. After the shooting, I paid the 300 yuan shooting fee to the photography studio. When I went to pick up the photos the next day, I found that I didn't get the negative. When I asked them, an employee pointed to the notice of black and white photos and said, "Anyone who puts photos over 24 inches in this photography hall will return one negative, and the rest will not be enlarged."

See, I insisted on getting it back, and the boss said I could get it back by enlarging four more. Seeing that I didn't agree, I added: I'll make an exception and enlarge two more for you, and you can get all the negatives back by giving them to 300 yuan. I paid 300 yuan. When I went to pick up the photos and negatives on the 6th, the studio only gave me two enlarged photos and negatives, and the other nine negatives refused to return them.

The photo studio said that if we want to retrieve the remaining nine negatives, we need to enlarge four more photos. He also said that the "notice for black and white photos" has been put in front of the door, and if the negative is retrieved free of charge, it actually infringes the copyright of the photography studio. Excuse me: is the notice of black and white photography in the photography hall fair? Can I have the negative back?

A: judging from the situation reflected in your letter, this is an ordinary case that has not attracted enough attention, and the problems involved mainly include five aspects:

First, the legal relationship between the two parties. The photography studio is the operator who provides services, and you are the consumer who receives services. So the relationship between the two sides is the relationship between consumption and service. Taking photos in the photo studio, the two sides formed a service contract relationship. After 300 yuan was accepted by the photography department, the contract was established. The photography department should be responsible for providing you with photography services and ensuring that photos (including negatives) are delivered to you on time and completely. ?

Second, the effectiveness of the "black and white photos" formulated by the photography museum. The notification of black and white photos is a unilateral provision made by the photography department for consumers, which has no legal effect and cannot be used as a basis for refusing to return photos. As the photography industry is a special industry, consumers may passively accept the notification of black and white photos, although it is unfair and unreasonable.

However, it does not mean that the behavior of the photo studio becomes legal, because Article 24 of the Consumer Protection Law stipulates that "operators shall not make unfair and unreasonable provisions to consumers by means of format contracts, notices, statements, shop notices, etc.". , or reduce or exempt its civil liability for harming the legitimate rights and interests of consumers.

Format contracts, notices, reports, store notices, etc. If it contains the contents listed in the preceding paragraph, its contents are invalid. "It can be seen that this' black and white photo' should be legally invalid and not legally binding on consumers. ?

Third, the copyright ownership of photo negatives. Portrait photography, like other photographic works, is "an artistic work that records the images of objective objects on photosensitive materials with the help of instruments" and should be a copyrighted work.

The photo studio takes pictures for you, in fact, it is entrusted by you to create photographic works. Article 17 of China's Copyright Law stipulates that the copyright of commissioned works belongs to the trustee. According to custom, there is generally no agreement on copyright ownership between photo studios and customers in China, so the author of photos taken by photo studios naturally belongs to the trustee, that is, the consumer. ?

Fourth, whether consumers infringe on the copyright of photos in the photography hall. Article 18 of China's Copyright Law clearly stipulates that the transfer of the original ownership of works such as art is not regarded as the transfer of copyright of works. Article 17 of the Regulations for the Implementation of the Copyright Law stipulates that the original ownership of a work can be transferred, and these Provisions shall apply.

Photographs, like works of art, are transferable. Therefore, the photo studio returned the photos (including negatives) to you, but only transferred the original photos to you, and did not transfer the copyright of the photos to you, so you did not infringe the copyright of the photos of the photo studio. ?

5. Did the photo studio infringe on your portrait right? According to Article 100 of the General Principles of the Civil Law, citizens have the right to portrait, and their portraits may not be used for profit without their consent. Because the studio didn't use your negative for profit, it didn't infringe your portrait right. ?

To sum up, the Notice of Black and White Photographs of the Photography Department has no legal effect and is invalid. You can take the negative back. In order to solve the problem, you can complain to the local consumer Council and safeguard your legitimate rights and interests according to law.

Reference source: People's Daily Online-Is it OK to take artistic photos without negatives?