The Right of Publicity in South Korea

 

Abstract

Unauthorized commercial uses of individuals’ marks of identities have been increasing in recent years due to the severe competition among sellers to attract more consumers. In this regard, the right of publicity has become a big issue. However, there is no specific law pertinent to the concept in South Korea. There are two different viewpoints to solve the current situation. One tries to include the right of publicity into personality rights because there is no legal ground to accept its independent position. In contrast, the other claims that it is necessary to legislate on the right of publicity to separate it from the personality rights for more thorough protection of personal identities.

 

Ⅰ. Introduction

As consumers have a wide variety of options in service industries these days, using proper advertising strategies is very important to attract their attention. One way to arouse customers’ interest is to make advertisements on which celebrities such as actors, musicians and athletes appear. To be more specific, one could commercially use the public figures’ identities characterized by their names, voices and images. This is a quite effective method to entice consumers to buy products or use services as those famous people can give customers positive impression on the products or services because of their reputation, professionalism and attractiveness. However, using celebrities in advertising can cause financial damage to the celebrities on condition that their individual identities are used without their permission. In this regard, it is necessary to understand the right of publicity.

The main legal issue of the right of publicity is whether to separate the concept from or to include it in personality rights. In South Korea, inconsistent precedents and the lack of statute regarding the right of publicity have continually caused controversy over the increasing commercial use of celebrities’ identities. Thus, I will focus on the right of publicity in South Korea to find a solution in the current situation. Firstly, I will explain the definition of the right of publicity. Secondly, I will compare South Korea with other countries concerning their legislation and judicial ruling for protecting the right of publicity. Finally, I will suggest desirable direction for improvement on the regulation of the right of publicity in South Korea.

 

Ⅱ. Definition of the Right of Publicity

Although the United States of America is the birthplace of the right of publicity, there is no unitary law for the concept. Therefore, it is necessary to understand the comprehensive definition of the right of publicity in the US[1]: “The right of publicity is one of intellectual property rights which make people take legal responsibilities when they use an individual’s unique identity such as a name or an image which indicates his or her identity without asking.”

There are several different ways to define the right of publicity in South Korea but the various definitions commonly emphasize ‘persona’. The word persona is a generic term for a name, an image, a photograph and a voice which symbolizes a person’s identity.[2] The right of publicity in South Korea, focusing on the protection of persona, grants an individual the power to restrict other people’s unauthorized commercial use of his or her identity for financial benefits. In other words, the definitions of the right of publicity in the US and South Korea are essentially identical.[3]

 

Ⅲ. Comparison of Protection for the Right of Publicity; South Korea vs. other countries

             I will discuss the history and the present condition of the right of publicity in the US and Germany, and compare those of the two countries with those in South Korea. The reason for focusing on the United States of America and the Federal Republic of Germany is that they are the two typical nations which indicate contrasting ways of protection for the right of publicity. In short, the US protects the right of publicity as an independent right from personality rights while Germany protects it in the scope of personality rights. In the light of the fact that the US is the source of the right of the publicity, I will firstly address the situation in the US.

1. The United Stated of America

(1). The History of the Right of Publicity

1). The Formation and Development of the Right of Privacy

The general opinion considers that Samuel D. Warren and Louis Brandeis began to use the concept of privacy rights in their treatise called “The Right to Privacy (Andrew Koo (2006-2007); Jason K. Levine (2004).)”, which was published in 1890.[4] They mentioned the increased risk for the invasion of privacy due to radical advances in technology and suggested the necessity of acknowledging “the right to be let alone” for human dignity.[5]

The right to privacy was first discussed in the Roberson case in 1902. In this case, the defendants used the plaintiff’s name and photograph to advertise their business without her consent. At that time, the Court of Appeals in New York did not recognize the idea of the invasion of the right to privacy.[6] On the contrary, in 1905, the Supreme Court in Georgia judged in the Pavesich case that it is an invasion of the right of privacy to publish one’s picture for the purpose of advertising without his or her permission.[7] Following these two cases and the legislation in 1903 for the protection of the right to privacy in New York, it became a big issue in the US.

2). The Emergence and Development of the Right of Publicity

The right of publicity as a separate concept from the right of privacy was legally acknowledged for the first time in the Haelan case in 1953.[8] This case is about the conflict between two chewing gum companies which made similar contract with a professional baseball player for the exclusive right of using his photograph. The court declared that individuals have independent property rights based on the publicity value. Although the right of publicity was acknowledged, its content was unclear and the courts tended to avoid finding responsibility on the basis of the new concept except for few cases in the 1950s. On the other hand, in the 1960s, some academic opinions started insisting that there should be a strict distinction between the right of privacy and the right of publicity, while the courts did not show any change in their attitudes.[9] Many cases have recognized the right of publicity as a new independent right since the 1970s, after the two representative cases which obviously acknowledged the right. The first case was the Zacchini case which took the plaintiff’s side, dismissing defendant’s freedom of speech. The other one was the Presley case which clarified Elvis Presley’s right of publicity was already formed in his lifetime.[10] The interest in the right of publicity, from the 1980s to the present, has continually increased, and the US still needs to seek solutions for the conflict between the right of publicity and the freedom of speech.

3). The Present Condition of the Right of Publicity

In the US, the right of publicity is generally regarded as one of property rights. Some say we should officially define it as a property right, and precedents have maintained the same assertion. It is also considered as a kind of intellectual property rights. Meanwhile, there are some opposite views which insist on including the right of publicity into the right of freedom.[11]

The US legislation on the right of publicity has an unusual feature. Fifty individual states respectively have state-governments, and there is one federal government for all, so they can enact different laws on the right of publicity within their authority which do not breach the federal law. I will particularly focus on California and New York because they are the two most representative states for their active entertainment industries which have a close connection to the right of publicity. California protects the right under the two laws; common law and the California Civil Code § 990.[12] In contrast, New York only protects the right of privacy under the New York Session Laws 1903, ch. 132 §§ 1-2, and does not recognize the right of publicity based on common law.[13]

The subjects of the right of publicity include not only celebrities but also the general public; however, group right of publicity is not acknowledged.[14] Although there are some exceptions, the right of publicity is generally considered to be transferable. The subjects of the right also have licenses which are exclusive or nonexclusive.[15]

Commercial use of the dead’s identities is another debatable issue. Nineteen states in the US including California acknowledge the right of publicity after death and do not require using it before death.[16]

Lastly, the means to relieve infringement of the right of publicity are as follows: compensation for damages, punitive damages and restitution of unjust enrichment caused by the infringer.[17]

 

2. The Federal Republic of Germany

(1). Background

Unlike the United States of America, there is no separate law for the right of publicity in Germany in that it does not see the right as an independent concept. Instead, Germany has established laws for personality rights such as the portrait rights and the right of name which are recognized to protect not only privacy but also individual economic profits.[18]

(2). The Protection of Individual Economic Profits Based on the Personality Rights

German precedents deny the transferability of the personality rights, but allow individuals to assert the rights to let other people use their identities commercially. In the case of the deceased, both precedents and theories acknowledge ideological economic profits. Germany has several means to relieve infringement of personality rights such as compensation for damages and restitution of unjust enrichment caused by the infringer.[19]

(3). Other Countries

First, Canada does not directly acknowledge the right of publicity. However, it allows rights to use persona for commercial purposes. Second, the United Kingdom punishes people who use other individuals’ names or images without their permission as defamation or passing-off instead of the infringement of the right of privacy or the right of publicity. Third, Japanese point of view is comparable with that of Germany in that it has acknowledged the right of publicity under the name of personality rights. Lastly, the People’s Republic of China has never allowed the use of other people’s portraits for commercial advertisements, packing and magazines without their permission.[20]

 

4. South Korea

(1). Background

Nowadays, a lot of celebrities in South Korea litigate cases to stop infringements of their property right caused by other people’s unauthorized use of their personal identities for commercial purposes. For example, a Korean actress Minjeong Kim recently won her case against a restaurant that kept using her photograph after the contract period ended. The decision of the court acknowledges the right of publicity, and Ms. Kim was awarded 90 million won for damages.[21] On the other hand, a Korean singer PSY lost his case against a toy company that used his portrait on dolls without his consent in 2015. In spite of the similarity in appearance, the court denied to recognize the concept of the right of publicity, but rather declared that it can be protected under the portrait rights.[22] There have been many other inconsistent cases about the right of publicity. However, there is no legislation for it yet.

(2). The Present Argument About the Recognition of the Right of Publicity

In South Korea, precedents and theories are divided into two perspectives. One insists that it is appropriate to prevent individuals’ property loss from commercial use of their marks of identities under the name of the personality rights. This point of view emphasizes that South Korean legal system is ruled by the written law, so it is hard to acknowledge the right of publicity considering that there is no positive law or common law yet. In contrast, the other one asserts that it is now necessary to legislate on the right of publicity to protect it more strongly.

 

Ⅳ. Conclusion: Desirable Direction for the Right of Publicity in South Korea

The inconsistent precedents for the right of publicity in South Korea are quite confusing to the public. In addition, there has been no change in legislation so far. Some people might say that the concept is fully covered in the scope of the personality rights. However, the personality rights are too comprehensive. Therefore, it is necessary to separate the right of publicity from them to provide more thorough protection. In the long-term, legislation on the right of publicity will create a positive effect on calculating the amount of damages caused by commercial use of personal identities without permission.

 

[1] 김성환, 퍼블리시티권의 법리와 실제, 진원사(2009).

[2] 정상기, Publicity권에 대한 소고, 계간저작권 여름호(1994).

[3] Supra note 1, at 25.

[4] Id. at 26.

[5] Id. at 27.

[6] 권태상, 퍼블리시티권의 이론적 구성: 인격권에 의한 보호를 중심으로, 경인문화사(2013).

[7] Id. at 18.

[8] Supra note 1, at 40.

[9] Supra note 6, at 27-28.

[10] Supra note 1, at 45-55.

[11] Supra note 6, at 38-42.

[12] Id. at 45-47.

[13] Id. at 48.

[14] Id. at 49-65.

[15] Id. at 66-78.

[16] Id. at 81-92.

[17] Id. at 118.

[18] Supra note 1, at 66.

[19] Supra note 6, at 186-188.

[20] Supra note 1, at 60-76.

[21] 권오혁, 계약 끝난 김민정 사진 무단사용…“9000만원 배상해야”,동아일보(2017.5.7), available at http://news.donga.com/3/all/20170507/84243994/1 (last visited 20th Jul 2017).

[22] 신동진, ‘강남스타일’ 싸이 안닮아 다행인 인형?, 동아일보(2015.2.17), available at http://news.donga.com/3/all/20150217/69701568/1 (last visited 20th Jul 2017).

 

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