Earticle

초록

영어

The privacy right has been considered as one of the most important rights, which can provide people with the good protection of private life. However, it did not sufficiently protect the various rights of famous people. They did not want to be isolated from others but wanted to be publicly known to others. What they wanted was not the negative prohibition but the positive control for commercial use of their name or likeness. A new and special right was proposed in the United States to provide with good answers, and this was the publicity right. But the concept of this right still failed to get complete consents from other countries. Those who support the publicity right usually try to eliminate the personal nature from this right. However, there is one big problem in the publicity right. It is that, as far as this right is related to the personal nature such as name or likeness of a person, the publicity right can never be separated from its personal nature. This problem does not show itself clearly when the original owner keeps the right, but when the original owner transfers this right to the third party. Because of this problem, some scholars or states denies the transferability of publicity right. Real problem can be found typically in the event that an actor A transfers his publicity right to his management company. When A leaves the company, A cannot enjoy or control the commercial use of his own name or likeness for life. Thus, A cannot leave the company but has to stay under the de facto slave contract. In order to avoid this kind of problems, the concept of publicity right shall be changed. The right shall not be such a right which can control the commercial use of a person's name or likeness, but a right which can only use a person's name or likeness for commercial purpose for a certain period. I suggest this right shall be considered as a special right of license,naming “publicity license.” The original owner can grant to a third party a license to use his name or likeness for a certain period under the license agreement. This license cannot be transferred to a third party without the consent of the owner. Moreover, the license period shall be limited at most to three to five years for protection of the owner's private life. This changed concept of publicity license can solve the problem and help to protect the owner from any unreasonable loss of his own name and likeness. A person's name or likeness is not the object which can be transferred to another person.

목차

Ⅰ. 서설
 Ⅱ. 퍼블리시티권의 본질
  1. 퍼블리시티권의 특성
  2. 퍼블리시티권의 본질에 관한 두 가지 다른 견해
  3. 퍼블리시티권과 인격권과의 관계
 Ⅲ. 퍼블리시티권의 인정 필요성
  1. 재산적 손해배상의 청구
  2. 권리의 양도
  3. 인격권의 재산적 측면과의 차이점
 Ⅳ. 퍼블리시티권의 양도성에 관한 입장
  1. 양도성을 인정하는 견해
  2. 양도성을 부인하는 견해
  3. 우리 법원의 입장
 Ⅴ. 양도성 인정의 문제점
  1. 문제점
  2. 딜레마와 해결의 실마리
 Ⅵ. 초상사용권
  1. 초상사용권의 의의
  2. 초상사용권의 내용
  3. 초상사용권의 한계
 Ⅶ. 덧붙임
 참고문헌
 

키워드

저자

• 최형구 [ Choi, Hyung-Koo | 충남대학교 법학전문대학원 부교수 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  산업재산권 [Journal of Industrial Property]

• 간기

  계간

• pISSN

  1598-6055

• eISSN

  2733-9483

• 수록기간

  1995~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 367 DDC 346