Earticle

초록

영어

In perspective of logical sequence, this article is the last of trilogy on the right of publicity which follows the first arguing that it is reasonable in the Korea to recognize the right of publicity distinguished from the right of personality and the second arguing that such recognized right is belong to the area of unfair competition law rather than that of copyright law. In this article, the detailed aspects of the right of publicity will be revealed by legal analysis associated with a specific subject. The specific subject is no less than virtual baseball game. The infringement to the right of publicity occurs frequently in virtual sports game such as fantasy baseball games because they must inevitably borrow detailed characteristics of many players or teams in real space. With respect to creation of a virtual baseball game, not only a famous player but also a nameless bench player, baseball manager and coach are eligible for the right of publicity while the eligibility of the team itself is still seriously doubted. Moreover, the horizontal scope of the right covers, as an example for a baseball player, all symbols including his initial name and voice which could reveal his identity. In this regard, the judgment by Seoul High Court on so-called Sang-Min Park fake singer case where the issue was whether it would be the mark or not under the Korean Unfair Competition Prevention Act was arguably wrong because the court discriminated against the other symbols, unlike the singer’s name. The subject of legal protection should be determined by substantial and flexible standard as whether the issued subject could identify someone, not by formalistic and rigid standard as whether it is a name or other symbols.

목차

I. 서론
  1. 이 글의 대상과 논의 필요성
  2. 이 글 논의의 전제 및 논의의 구체적 순서
 II. 퍼블리시티권을 가지는 야구종사자의 범위
  1. 퍼블리시티권을 실제 보유하고 있는 주체가 선수인지, 구단 등인지 여부
  2. 유명하지 않은 후보선수도 퍼블리시티권의 주체가 될 수 있는지 여부
  3. 감독ㆍ코치 등의 퍼블리시티권
  4. 특정 구단도 퍼블리시티권의 주체가 될 수 있는지 여부
 III. 퍼블리시티권이 인정되는 대상의 범위
  1. 총설
  2. 야구선수의 성명
  3. 야구선수의 초상 -박상민 짝퉁가수 사건의 판결 비판
  4. 야구선수의 성명ㆍ초상 사용에 있어 특수한 문제
  5. 야구선수의 목소리
  6. 야구기록 등 여타의 징표들
 IV. 야구게임에서의 퍼블리시티권 공정사용 문제
 V. 결론
 참고문헌
 

키워드

퍼블리시티권 인격권 야구게임 스포츠게임 부정경쟁방지 및 영업비밀보호에 관한 법률 영업표지 the right of publicity the right of personality virtual baseball game fantasy baseball game fantasy sports game Korean Unfair Competition Prevention Act business mark.

저자

• 박준석 [ Park, Jun-Seok | 서울대 법과대학, 법학전문대학원 부교수 ]

참고문헌

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