퍼블리시티권의 침해요건 중 ‘상업적 이용’의 판단기준

The Commercial Use Requirement for Violation of Right to Publicity

  The topic of this article is the ‘commercial use’ requirement for violation of right to publicity. The issue is whether the ‘commercial use’ should mean the commercial purpose of the media in which identity of a celebrity is used, or it should mean the commercial nature of the use of a celebrity in a media. Korean courts seem to take the latter position, which the U.S. court also takes. However, there are some critics on the former position in Korea. Therefore, I examined the rationales in a couple of leading U.S. cases dealing with the ‘commercial use’ requirement, and extracted the following rules: a use of likeness of a celebrity in a media is not a ‘commercial use,’ if the content of the media is protected by the freedom of expression, and if the likeness of a celebrity used is directly related with the content of the media. Thus, the possible difference in interpreting ‘commercial use’ in the U.S. and Korean courts would probably come from the difference of the protection of the freedom of expression.