퍼블리시티권의 법적성격에 관한 연구

A study on the legal nature of the Right of Publicity

The Right of Publicity can be said to be a right that a person can commercially use his own name, image or other identities or restrict the use of the same. This right of publicity is legally originated from the protection of the privacy of individuals. But after the right of publicity was recognized as a separate right distinguished from the right of privacy in the judgement of Haelan in 1953, the benefit of property right protected by the right of publicity has come to be distinguished from the benefit of personal right protected by the right of privacy as it has come into 1970s. In case of our country, the reality is that there is no prepared concrete legal basis of the right of publicity thus it is considered to be included in the right of privacy and the relief against the invasion depends on the stipulations regarding illegal acts in clause 751 and 764 etc in civil law. But, although the subjects of the right of publicity are personal factors such as name, image etc, the aspect that the exercise of the right has strong nature of property right should be considered. And the right of publicity and Trademark Right have similarity in that both protect certain individual’s identity from being used without permission and are transferable. Also, although identity is not the subject to be protected by copyright law, copyright and the right of publicity have similarity in that both are the rights recognized to protect mental creations or individuals’ identities from being used without the permission of right holders. Especially, the value of famous persons’ identities such as name and image are the result obtained through prolonged efforts and managements thus are considered as having sufficient benefits to be commercially utilized. Having the benefits to be commercially utilized means that the nature of property right that can be transferred or inherited is strong. In conclusion, the right of publicity was originated from the factor of personality and now has strong nature of property right. This is very similar to moral right and economic right stipulated in copyright law of our country. Therefore, it is considered that the legal nature of the right of publicity should be seen as a kind of intellectual property right.