민법상 인격표지영리권 도입에 관한 소고

Abstract

With the recent active use of video platforms such as YouTube and Instagram, not only celebrities but also the general public have created an environment that can gain popularity, expanding the scope of commercial use of individual personality mark. Reflecting these changes, the Ministry of Justice announced a legislative amendment to the Civil Act earlier this year to establish the right to commercially use person’s name, portrait, and voice. Here, the term “The Commercial Right of Personality Mark” is a Korean word that replaces the word “The Right of Publicity” used in the United States. Unlike the revised Unfair Competition Prevention Act, the right to use personality signs without asking whether names and portraits are “widely recognized in Korea” is an independent right that all individuals can enjoy, and it is a further legislation. The main issues of the civil law amendment on the right of publicity are summarized as follows. First, the right of publicity cannot be defined as rights with one moral rights or property rights due to their nature, and the content of the rights must be determined differently from general property rights. Second, in relation to the scope of protection of the right of publicity, the scope of personality mark can be more diversified and broadened as technology develops rapidly and social changes. In this situation, I think the method of determining the scope of protection of the right of publicity through rational reasoning is valid. Therefore, it is necessary to be careful in determining the scope of protection to the extent that freedom of expression is not limited. Third, when the scope of protection of the right of publicity is determined, the possibility that the subject of rights can be rescued increases only when the types and standards of the profitable activities are clear. If the type of infringement of the right of publicity is mainly limited to a certain type, but if it does not fall under a certain type, I think it can be used as a criterion to determine whether the media used in the personality mark is within the protection of freedom of expression. Fourth, the Civil Act amendment stipulates ambiguous phrases with unclear meanings, such as “belief”, “significant reasons”, “justifiable interests”, and “reasonable scope”. Rather than breaking the contract through ambiguous standards of serious reasons contrary to belief, it is necessary to prevent withdrawal of the permission to use the personality mark, or to limit the reason for withdrawal with clearer phrases. In addition, in a situation where the meaning of legitimate interests and reasonable scope cannot be predicted, Article 3-2 (4) of the amendment is proposed as “a person who uses another person’s personality mark for public interest may use it for profit without the permission of the subject of the commercial right of personality mark”.