인격권과 구별된 퍼블리시티권을 인정할지에 관한 고찰－최근의 비판론에 대한 논리적 재반박을 중심으로－

Abstract

Whether conventional personality rights do protect proprietary interests related to actively taking advantage of a person’s portrait, name and etc. commercially, and whether such proprietary interests are protected by the right of publicity as an independent property right, are the issues which have caused fierce debates for a long time in South Korea. For a reasonable resolution of these issues, all participants in Korea should hit the balance between the two different attitudes of civil law system including German law which has had overall impact on Korean law traditionally and American law system which is expanding its influence in Korean law and must solve harmoniously internal confrontation made by contrasting perspectives between civil law scholars and intellectual property law scholars in Korea. The so-called no protection theory under which the above protection is not permitted without a special legislation because the conventional concept of personality rights does not provide the above proprietary interests and the so-called personality right theory under which the protection of such property interests is arguably included in conventional personality rights while the independence of right of publicity is arguably denied have severely criticized together the so-called right of publicity theory supported by the author of this article et al. under which the right of publicity is deemed an independent property, based on a violation of the principle Numerus Clausus. However, the personality rights which gave birth to the right of publicity has been recognized without any substantial opposition only by support of some scholars’ theories and relevant cases even though there is actually no direct statutory basis to support the personality rights as a real right and a private right in both Korean Constitution and Civil Code which become clear after a strict search for such statutory basis by this article. Considering this, the right of publicity is seen to have been based on a much clearer statutory basis now than in the past by the establishment of Article 2 Paragraph 1 10th Sub-paragraph (Cha) of the Korean Unfair Competition Prevention Law which gives a real right against any acts that infringe upon others’ economic interests by appropriating any achievements made by others with considerable efforts and etc. With regard to compensation for damages, according to some Korean courts’ view based on the no protection theory, the damages for non-pecuniary loss would take a key role for indemnification and, as a result, it is difficult to compensate enough for the pecuniary loss of celebrities. Meanwhile, the personality right theory which is seemingly an influential position in recent years argues that the personality right theory is better suited for the damages for pecuniary loss, but the theory has some flaws in its logic. First of all, the theory exaggerates the meaning of the common proposition among Korean civil law scholars and related cases that the damages for pecuniary loss could be allowable for the infringement of the personality right, by interpreting it as that proprietary interests related to actively taking advantage of personality commercially could be covered within the concept of the personality rights. However, such a rampant expansion of the concept of the personality rights shall inevitably face a risk of self-denial. In addition, there is no plausible explanation by the personality right theory for how the personality rights include such property interests and why the part of the personality rights should be treated as non-transferable. The monistic approach of the theory is not matching with the specific situation in Korea, unlike in Germany, because Korea already took dualistic approach for a person’s copyrighted work which is bonded with the person almost like his portrait, name and etc. Finally, the personality right theory is not harmonizing with the unique and clear definition of the personality right provided by Act on Arbitration and Remedies, etc. for Damage caused by Press Reports among our Korean statutes which excludes any property interests from the concept. The no protection theory and the personality right theory insist that the separation of portrait, name, etc. from the person will be likely to result in the evils of commercialization of personality if the transferable right of publicity is recognized in accordance with the standpoint of the right of publicity theory. However, Korean Trademark Act already did allow the portrait, name and etc. of celebrities to be registered for another person’s trademark and also re-transferable. Beyond the above concern of commercialization of personality, our legislators are seemingly recognizing the strong needs in modern industrial society for legalization of that someone’s portrait, name and etc. used by the other persons. Finally, the right of publicity is the very rare intellectual property right that Korea had better to protect at the forefront of the world, in part to support the so-called Korean wave when we are watching the rise and continuation of such wave and etc. The harmful consequences including that the right of publicity owned by newbie entertainers is likely to be transferred unfairly to the entertainment agency and etc. would be well mitigated in many cases by countermeasures such as that Korean courts shall strictly review the validness of such assignment.