퍼블리시티권의 인정실익과 한계에 관한 연구

Abstract

These days, the influence of the Korean Wave spread to South-East Asia, and to a certain extent to the rest of the world. The right of publicity -that is to say the issues related to the commercial use of such a right including brand-naming, voice and image- raises a new set of problems. Recently, following the growing interest of people in the right of publicity, many legal actions and suits have been taken. Therefore, this thesis will first discuss the new laws that have been approved in the US in the field of the right of publicity. It will then analyse whether these new rights have been approved in Korea; whether the foundations of such rights can be consolidated and what are the hurdles to implementing these rights to individual legal persons. The right of publicity is the right allowing the extensive commercial use, the advertisement and sales of materials as well as compensations items including image, brand-naming and voice. The legal property of the right of publicity is four-fold. First of all, it deals with the protection and enforcement of this right, the safeguard of the right of publicity and preventing the general public from using the name or image of famous people without permission. Second, it provides economic enticement for people involved in social and economically profitable activities; but it also forbids consumers to use the right of publicity without reporting. Third, it prevents people from making illegal profits -including embezzlement, infringement and misuse of commercial influenceand from misusing famous people's time, money and efforts. Lastly, the right of publicity aims at preventing the dilution of commercial and economic value through misuse of commercial power. Then, the main point of the right of publicity is not to limit this right to famous people or private individuals because common peculiar rights include not famous people. While the right of publicity acknowledges the point of propaganda value, which is attached to self-identity, it should also be understood as a personal and thus peculiar right that everyone possess. So the right of publicity should become the privilege of normal people (excepting famous people). And as a right to own property, it should be handled as tangible property which can be transferred and inherited. Exceptionally, in the case of ageing people, the subject of the right will be the heir -and not the person himself. A group can also become the subject of the right of publicity because this right is transferable. However, animals and goods on themselves cannot have this right nor become subjects of the right of property. Our Court of Justice recognises the the right of publicity as the right to own property and private belongings. This Court considers not advisable to extend the application of the right of publicity to animals and goods themselves as they are not connected with the person's attributes and in that the point of a person's property symbolises self-identity and is inherent to the external personality -including brand-naming, image and voice. Therefore, the objects of protection of the right of property can be limited to persons specifically. The problem of transferring the right of publicity is about the main frame of self-identity. This issue provides important grounds for recognising the right of publicity and for providing or not guarantees about brand-naming, image and voice as having the value of property. The conclusion reached is that the right of publicity can be transferred freely under the condition that people recognise the economic value of a person's identity. In the case of the inheritance of the right of publicity, it should also be possible to inherit it as a personal property. But only if the rights of the deceased person are inherited in a limited period of time so that the problem of transfer of such a right is mutually agreed on social and economic basis thus keeping in with the character of private property and public good. In the US, people launched that debate in 1953 during the Haelin judgement, and now the American people recognise the transfer of the right of publicity as a written rule in thirty states. In the case of Japan, the Japanese recognise the existence of this right in de facto business affairs through precedents of the Court of Justice, but neither Japan nor Korea have enforced it as de jure rule. Even though the Court's precedents have set a ground-breaking example of the right of property as a transferable right, the right of publicity is still not recognised as a written rule. But it is true that the terms of the right of publicity, the right of announcement and the right of using names and image are confusing. This confusion might persist as long as there are no clear standards on the definition, the requirements and the efficiency of the right of publicity during trials and in established legislation. In this state of aggravated confusion, the implementation of organised legislation as a standard for judgement is now a pressing issue.