퍼블리시티권과 부당이득

Right of Publicity and Unjust Enrichment

When one person’s interests have been infringed or appropriated by another person, the rightful owner of the interests can be protected by unjust enrichment claim. But in order to pursue unjust enrichment claim based on infringement of the right of publicity, the claimant first have to establish that the claimant has an exclusive interest, called right of publicity. So to discuss unjust enrichment claim in connection with right of publicity, whether a person is entitled to have an exclusive right to control the commercial use of one’s name, image, likeness or any other identity without any statute recognizing right of publicity should be reviewed. However, even in the United States which allows judges to make law, there is a decision holding that “if such a right is deemed necessary or desirable, such right should be provided for by action of our Legislature and not by judicial legislation.” Some Korean courts’ decisions derive the right of publicity from right to the pursuit of happiness. In addition, though Korea is a civil law country, there are other courts which recognized the right of publicity based on non-statutory grounds such as most foreign countries recognize right of publicity or the need for protection of right of publicity. However, there are some court decisions which deny to recognize right of publicity. Thus, in order to resolve the conflict between court decisions, statutory enactment is required. It is doubtful whether the scope of recovery should be limited to claimant’s loss rather than infringer’s benefit even if the infringer is an intentional infringer whose blameworthiness is much greater than the claimant. Considering the fact that restitution is recognized as a separate remedy from damages, restitution should be considered as a remedy which recaptures infringer’s wrongful gain rather than compensating claimant’s loss. Also, not all recovery of the infringer’s profit is itself punitive. In addition, considering that recovery of the infringer’s profit is also allowed in other cases such as infringements of patent, copyright or trademark, allowing recovery of the infringer’s profit in itself is not unfair. Therefore, especially in case of intentional infringer who has profited from commercial exploitation of another person’s right of publicity, more proper measurement for infringer’s benefit should not be limited to fair market value of claimant’s right of publicity, such as royalty, but should include the profits which infringer has gained and which are attributable to the unauthorized use of the claimant’s right of publicity. Therefore, the standard for measurement of infringer’s benefit in case of infringement of right of publicity should be reconsidered.