일본법에서의 퍼블리시티권

Abstract

Although the need to accept the idea of publicity right is acknowledged in Korea, there are no substantive enactment supporting this right, leading to confusion in lower-court trials’ precedent, and it is requisite to construct legal principles to solve related controversies. Therefore, there is need to understand and consult other countries’ law theories, precedents, and the procedure of making laws that are related to publicity right. This study analyzed the Japan’s legal systems and recent conditions which have given a lot of influence on our laws, and tried to find the implications. Japanese courts have been acknowledging publicity right by tort law ever since the Mark Lester case, and related judgements are quite built up. Although the publicity right is recognized by the precedent, however, there are difficulties in solving problems such as the legal nature, amount of compensation, injunction, etc. The reason for this is because publicity right has the characteristics of both personal rights and property rights. The theory is divided into personal and property right theory especially due to injunction’s acknowledgement only with absolute rights such as personal right. Whether transference or inheritance is possible also depends on which theory one is supporting. Many scholars and precedents’ position is that publicity right is only limited to celebrities. In Japan, overturning lower-court trials, the supreme court did not acknowledge publicity right of things. Japanese courts acknowledge the right of “publicity right”, and whether to protect it or not is depended on each case. However, Korean courts still do not have a consistent principle deciding whether to acknowledge publicity right or not and are having confusion. Thus, the analyzation of Japanese precedent gives us implications.