인격권 관점에서 본 퍼블리시티권

A Study on the right of publicity from the perspective of personality rights

Personality rights pursue free development of personality based on the value of human dignity. The commercial interests of a person s identity is directly associated with the development of personality and it can raise problems in regard to human dignity. Therefore, the commercial interests of a person s identity should be protected under personality rights. Otherwise, the right of publicity becomes a separate and independent property right, which is not only unnecessary but also undesirable in legal composition. Transferring the right of publicity to protect the person who commercially uses another s identity is an excessive legal method considering its purpose. This can bring about undue result that a person loses the right over the commercial use of his or her own identity. Also, the part of personality rights which protects the commercial interests of a person s identity cannot be transferred as a whole. However, a person can permit the commercial use of his or her own identity and a licensee is entitled to damages when his or her exclusive right is intentionally infringed upon by others and also able to claim the injunction. Furthermore, it is possible to grant a license like a real right as a partial transfer of personality rights and there should be relevant legislation established to regulate the license. The personality rights of decedents should be recognized in terms of protecting human dignity. Personality rights of decedents no longer have aspect of free development of personality, so that it is considered more like property right and effective defense is necessary against appropriation of the decedent s identity. Therefore, the part of personality rights which protects commercial interests of a person s identity can be inherited. The part of personality rights protecting the commercial interests of a person s identity should be recognized during the subject s life and for additional 70 years posthumously on the analogy of regulations of copyright law. Commercial interests of a person s identity in Korea should be protected under the personality rights. The right of publicity should be understood within the concept of the personality rights and relevant regulations should be enacted in civil law.