퍼블리시티권에 대한 하급심 판결 동향 분석 및 권리화 방안

Abstract

In 1997, the right of publicity was firstly acknowledged by Korean lower court. Since 1997, the right of publicity has been one of the most popular topics in academia and practice. Lots of lower courts’ decisions were made and those accumulated cases can be classified into 3 different groups. (1) First group of cases approved the right of publicity. They put an emphasis upon the necessity of the right of publicity and international trend of that right. (2) Second group of cases do not approve the right of publicity as a subject of list of the rights of Korean law. They describe the right of publicity as an exclusive right and they rejected them as a right relying upon the rule of Numerus Clausus der Sachenrechte. Some of the cases at least stood on the same side as the first group on the necessity standpoint. However some cases decided after 2015 did not recognize the necessity due to the characteristic feature of entertainers or professional sportsmen. These courts understand that entertainers or professional sportsmen are eager to be exposed to the media in whatever form and for this reason any ways of publicity of these people are not being worthy of compensation for whatever reason even in the case of exposures against their will in principle. As far as the right of publicity in Korea is concerned, it is very hard to tell what the law is. As was in United States and Japan, the best way to put the Right of Publicity in the list of rights is to form a Judge made law in my opinion. However it is very difficult to expect a Judge made law in the area of the Right of Publicity. In this sense the current discussion of enactment of this Right of Publicity contemplating a special act not as a part of Civil code or Copyright law would the second best alternative in solving the current issues which are debated but still laid in a very disorganized way.