퍼블리시티권의 법적 성격과 입법화 방안

Abstract

The reason for the large number of legal disputes related to the right of publicity is that the necessity of protection of the right of publicity is increasing, but there is no legal ground based on the current statute. There is no explicit decision of The Supreme Court about the right of publicity, lower courts have made some decisions under the necessity. However, even this decisions are divided into judgments which are recognized and judgments which are denied. It is also difficult to recognize the right of publicity only by the fact that it is necessary under the statute of law. The right of publicity is derived from the right of privacy in the United States as a right to obtain economic benefits by commercially using the names and images of celebrities with property values. In the United States, Germany, and Japan, publicity rights are recognized as property rights or moral rights. On the contrary, We tend to accept the right of publicity by interpretation of Article 751 of the Civil Act and Article 10 of the Constitution law. There is a confrontation between the moral right theory and the property right theory about the legal nature of the publicity right. The moral rights theory argues that the publicity right has a moral right tendency recognized by the Constitution law such as a right about name or portrait, etc., and the property right theory aurues it has a proprietary tendency because there is an attempt to gain economical benefit by commercializing the name or portrait. Based on these discussions, there have been legislative proposals to legislate publicity in civil law or copyright law and legislation to protect publicity by independent laws. However, these legislative proposals have difficulties in accepting them. It may be desirable to provide the grounds clause in the Unfair Competition Prevention Law reflecting the characteristics of the right of publicity. There are problems in using the existing clause as the grounds of the publicity right, So we need to clarify subjects and objects of the right of publicity. It would desirable that the legislative process will actively discuss the details of publicity rights.