퍼블리시티권의 법적 쟁점과 보호방안에 관한 고찰

Abstract

The rights of publicity can be understood as a form of rights that controls or prohibits the acts of using and earning economic benefit by commercializing a person’s identity such as one’s name or portrait. As advertisement and media industry grew, the power of celebrities’ names, images, and voices that attract customers has been estimated to have valuable property. This has led to cases that use this power commercially. At the same time, controversies regarding the rights of publicity are rising in many forms. Currently, Korea neither has any regulations regarding the rights of publicity nor shows any precedent made by the supreme court. Due to this, there is a need to evaluate the rights of publicity with analytical theories. When considering legal issues of the rights of publicity, legal character of the rights of publicity shows that, when only its character regarding property rights is permitted, the subject cannot be properly protected. Also, as it cannot be regarded separately from personal rights as well, the rights of publicity can be regarded as a form of rights that needs to be controlled first, as its personal rights-type of character comes first before its property rights-type of character. Hence, the alienation of the rights of publicity cannot be permitted; it should be regarded as something that should be used with permission. In addition, even though the alienation is not acknowledged, partial usage and the term of using the rights of publicity could be selectively chosen and used commercially; this satisfies the necessity required from the market due to its economic values. Moreover, if the subject dies, the rights of publicity no longer get controlled by personal factors, which indicates that it loses its character regarding personal rights; in this case, only the property rights-type of character remains for the rights of publicity, which then allows its inheritance. If violations of the rights of publicity occur, those acts are deemed to be illegal. The amount of damages should be judged as the payment which a user should pay when the rights of publicity is acknowledged. In addition, if violations occur to the person who has been allowed to monopolize the rights of publicity, it should be cleared out by approaching the problem under the title of violating receivables caused by the third party. Yet our civil law only states the liability of compensation which is only limited to a mental suffering, it is possible to state that there should be a proper regulations that guarantees rights of personal images, which includes names and portraits, that have property values. Hence the proper protection of the rights of publicity should be made by introducing explicit regulations through legislation that could relieve legal uncertainties.