판례에 나타난 퍼블리시티권에 관한 연구

Abstract

It is not justified to appropriate commercially others' names and images without their permission to gain profits. In this case, the victims should share the economic income, and have the authority to prohibit anyone from using their identity. The publicity rights are the way to keep one's own identity like this. To get economic income, many businesses are using famous person's name or likeness. This magnetism of a trade mark is known to have succeeded in increasing the companies' sales. In the meanwhile, there happened a dispute between the owner of identity and the user of it over the publicity right, especially in the countries which have developed in the entertainment and media industry. The main country, America, acknowledged firstly the rights in the process of solving a lot of legal battles. The publicity rights have been set up as a firm right through many judicial precedents. In Korea as well as the U.S. these rights have been paid attention to since 1980s. Recent Han Wave has made Korean celebrities' pictures and images used without their previous permission, which resulted in the legal disputes between the people who are earning commercial gains. It is likely that the number of such disputes will be larger as more people will get reputation around the world. But no nations except America have regulated the rights directly or explicitly, which means the publicity rights should be confirmed only in the judge-made laws, and accepted in the positive laws. In Korea as well, there is no legislation stipulating this right, and so the persons directly concerned should depend on the individual rulings of the courts. What is worse, the codification of publicity rights is not easy or simple. The publicity rights are controversial because they exceptionally authorized financial values to the individuals and caused a lot of legal problems these days. For example, who can own the publicity rights, whether corporate bodies or organizations can have those rights, what is required to establish the rights, whether the right should be used only commercially or not, whether a person's identity modified or distorted can be the matter of the rights, whether the rights are assignable and inheritable, and if possible, how many generations can have the inheritance of the rights. In the near future, we should legalize this rights considering our Continental law system. This thesis offers the direction of the legislature of the publicity rights by determining the essence and character of the rights through judicial precedents assuming we should enact the laws for the publicity rights. The second chapter studies the judgements of America, Germany, and Japan, and the third chapter treats our country's. The last chapter shows several theories and methods to make such a law. I hope this thesis should be helpful in making the laws of the publicity rights in Korea.

topic word: the publicity rights, publicity, identity, personal rights, privacy