퍼블리시티권의 침해와 구제에 관한 연구

A REVIEW ON INFRINGEMENT OF THE RIGHT OF PUBLICITY AND ITS REMEDIES

Since portraits, names and other identities of popular entertainers and celebrities are believed to have pecuniary value, any use of them for commercial purpose without consent shall be deemed to be infringement of the property right. Recognizing the pecuniary value the names and portraits of dignitaries possess is so-called the right of publicity. In the recent Haelean verdict in America in 1953, the right of publicity was first recognized as an independent right, separate from the personal right of privacy. The right of publicity is often defined as "the personal right to gain or govern the interest from the public value of what a person has created or is endowed from others" or as "the inherent right to protect one's own identity from being used commercially." The right of publicity is also said to be the right to avail of the exclusive value names or portraits have. It may be therefore equivalent to the property right to limit commercial use of one's own names, portraits or other identities. There is a good variety of types in infringement of the right of publicity including but not limited to the use of portraits or names for advertisement, trademark, products, buildings, journalism, entertainment and quotation for such creative works as novels without permission. As the right of publicity is strongly associated with legal features, remedies for the infringed right of publicity should be drawn legally, too. These legal actions may include claims for indemnity of loss, restoration of undue gains, request for prohibition, demand for correction and refutation of reports by mass media, etc. The present study is aimed at exploring types of infringing the right of publicity and remedial measures and, when necessary, comparing and analyzing the means and ways of remedies between the cases for the right of publicity and copyright according to the Law of Copyright.