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초록

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Recently, the likeness of celebrities, such as their names and photos, has widely been used for the Internet advertising, which, in turn, was followed by law suits arguing that the right of publicity was infringed. However, the courts, especially Seoul High Court(SHC), were very reluctant to hold that publicity right was infringed. In the cases, celebrities’ names and photos were appropriated for ‘keyword advertising’ and ‘viral marketing.’ SHC denied both existence and necessity of ‘right of publicity’ under current Korean legal system. Further, it denied the applicability of ‘Cha-Mok’ of Korea Unfair Competition Prevention Act(UCPA). It also held that the defendants in both ‘keyword advertising’ and ‘viral marketing’ cases did not infringe the plaintiffs’ personal right on names and photos. The purpose of this article is to provide theoretical basis for the protection of publicity right in Korea. This article argues that the publicity right should not be, and does not have to be, approached by property rule. In ‘Haelan case,’ the first case in the U.S. which recognized ‘right of publicity,’ the court said that “the tag “property” simply symbolizes the fact that courts enforce a claim which has pecuniary worth.” This article also argues that liability rule approach is superior to property rule approach in protecting right of publicity. Liability rule is more appropriate due to the lack of information enough to grant full property disposition to celebrities’ likeness, and due to the variety of situations in which the likeness is commercially used. History has shown that too-little protection by courts of emerging economic values almost always resulted in too-much protection by legislation, which conflicted with other social values such as freedom of expression. Liability rule approach can achieve the goal of appropriate protection without harming other social values. Courts should keep in mind that ‘protection’ in the field of intellectual property means ‘fair distribution of economic values among contributors.’

목차

I. 서론
 II. 대상판결의 내용
  1. 키워드 검색광고 사건
  2. 바이럴 마케팅 사건
  3. 소결: 법원의 입장변화와 논의의 필요성
 III. 퍼블리시티권의 성격
  1. 퍼블리시티권과 인격권(성명ㆍ초상권)의 관계
  2. ‘재산권’의 의미
 IV. 부정경쟁방지법 차목에 의한 보호가능성
  1. 대법원 판결의 검토
  2. 물권 유사의 강한 재산권 對 행위규제방식
 V. 판결에 대한 검토
  1. ‘퍼블리시티권’이라는 용어의 문제
  2. 부정경쟁방지법 차목 해당 여부
  3. ‘공적 기표로서의 사용’과 부정목적의 판단
 VI. 결론
 참고문헌
 

키워드

퍼블리시티권 부정경쟁방지 인터넷 검색광고 바이럴 마케팅 불법행위 법리 계약법리 표현의 자유 right of publicity unfair competition law internet keyword advertising viral marketing liability rule property rule freedom of expression

저자

• 박준우 [ Park, Junu | 서강대학교 법학전문대학원 교수. ]

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