퍼블리시티권 침해 판단기준

Abstract

The Right of Publicity can be described as the right of everyhuman being to use one’s identity(or persona) such as name orlikeness(portrait) etc in a commercial way in order to gain economicbenefits. However, infringement against Publicity Right is not held inevery case when another person’s identity is commercially used. Thereis also a need to protect the usage of another person’s identity. TheFreedom of Express(Press and Speech) under the Constitution shouldbe guaranteed. In addition, in order to ensure the Public’s Right to beInformed, it is necessary in some cases to inform the public about otherpeople’s identity. For these reasons, in many countries such as UnitedStates, Germany, Japan and Korea, the Right of Publicity is limited to acertain level. In this paper I reviewed some cases from the above countries inorder to examine situations in which Publicity Right is admitted andother cases where Publicity Right is denied. By such examination, Iattempted to draw a specific standard of reviews in finding infringementagainst Publicity Right. To sum up, although a person’s identity is used commercially, itdoesn’t always result in Publicity Right infringement. If the main aim touse a person’s identity is to make a contribution to freedom toexpression or right to know, it doesn’t constitute infringement againstPublicity Right. On the other hand, if the sole or main aim to use a person’s identity is pursuing profit and there are little public elements, itis possible to admit Publicity Right infringement. And, it is helpful to practical field to classify the standard ofPublicity Right infringement according to the type of media. In Korea, there exist many papers in which Right of Publicitythere are not too many papers dealing with the standard of infringementagainst Publicity Right, in other words, the balance between limits ofPublicity Right and Freedom of Express(or the Public’s Right to beInformed). I hope this paper contributes to the discussion of the above issuehereafter.