한국에서의 퍼블리시티권 논의

법적 성격을 중심으로

From 1990’s in order to regulate the commercial use of personal identity, the right of publicity which was developed in the U.S. common law system was introduced into Korea. However Korean civil law system is different from Anglo-American common law system in many aspects. Therefor the reception of the right of publicity as a whole into the Korean legal system has many theoretical and practical problems. First of all, in U.S. the right of publicity has been developed as a correlative concept (in German, Korrelat) in order to fill the gap which was left from the doctrine of the right of privacy. However Korean civil law system has recognized the right of identity (in German, Persönlichkeitsrecht) which integrates the right of privacy and the right of publicity altogether. Therefor this article pointed out that theoretically it is more coherent to regulate the problem of commercial use of personal identity in accordance with the doctrine of the right of identity. In other words, commercial use of personal identity without consent means nothing more than a tort which infringes the right of identity and results in material damages in contrast with the other infringement of the right of identity which results in immaterial damages. Furthermore in the practical aspects, it is not necessary to adopt the right of publicity in order to regulate the assignment of the right of the user who made a contract with the person whose identity is used. If the third party, especially the competitor infringes the assignee’s right, the infringement corresponds to an intentional interference with contract which results in material damages. And if the decedent’s identity is used without consent of the successor, it can be regulated by the law of defamation, the law of trademark and the law of unfair competition. In sum, it is more injurious than beneficial to adopt the right of publicity as a whole which has its origin from Anglo-American common law tradition. With regards to the commercial use of personal identity, it is highly recommended to follow the maxim, “reviewing the old and learning the new” as well as in the other fields of law.