퍼블리시티권의 사후존속 (Posthumous Continuance of Publicity Rights)

서지정보

· 발행기관 : 한국지식재산학회
· 수록지 정보 : 산업재산권 / 34호 / 335 ~ 366페이지
· 저자명 : 최형구

초록

Although our society did not recognize seriously the issue of posthumous continuance of publicity rights, it will soon critical for us to have some fixed regulations or any kind of authorized guidelines against future disputes regarding the publicity rights of deceased celebrities. However, it is not so simple to regulate the status of publicity rights in such case.
The concept of publicity rights was created first in the United States. As it was stemmed from privacy rights, the concept contains various personal nature in itself. Notwithstanding this personal nature, the creators of publicity rights tried to consider the publicity rights as a pure property right, completely eliminating the personal nature from itself.
Critical problem of publicity rights as absolute property rights is shown in case that the right owners of privacy rights and publicity rights are severed,especially when the right is inherited after the celebrity died. We cannot find any theoretical reasons that the publicity rights (apparently containing privacy rights) shall survive the death of that person. The publicity rights fails to have the personal nature, the most important core contents of itself, when that person dies. Some scholars suggest that copyright laws shall be applied to the relationships regarding the publicity rights. But copyrights and publicity rights are totally different from their origins, natures or legitimate purposes.
Anyway, we have to respect the present needs for the publicity rights in the relevant commercial market, which is the sole reason of existence of publicity rights. We need to minimize the effective period or methods of use of publicity rights while we recognize its posthumous continuance.
For this purpose, I suggest a license concept to substitute publicity rights in the above relationships, with regard to the right to use a celebrity's portrait or name. This "publicity license" will solve the most conflicts as above. It will continue to protect the personal nature of celebrities, providing the proper methods to commercially use the celebrity's portraits or names.
We shall be more conservative to admit the concept of publicity rights to our legal system, considering the sufficient protection of personal nature.

영어초록

Although our society did not recognize seriously the issue of posthumous continuance of publicity rights, it will soon critical for us to have some fixed regulations or any kind of authorized guidelines against future disputes regarding the publicity rights of deceased celebrities. However, it is not so simple to regulate the status of publicity rights in such case.
The concept of publicity rights was created first in the United States. As it was stemmed from privacy rights, the concept contains various personal nature in itself. Notwithstanding this personal nature, the creators of publicity rights tried to consider the publicity rights as a pure property right, completely eliminating the personal nature from itself.
Critical problem of publicity rights as absolute property rights is shown in case that the right owners of privacy rights and publicity rights are severed,especially when the right is inherited after the celebrity died. We cannot find any theoretical reasons that the publicity rights (apparently containing privacy rights) shall survive the death of that person. The publicity rights fails to have the personal nature, the most important core contents of itself, when that person dies. Some scholars suggest that copyright laws shall be applied to the relationships regarding the publicity rights. But copyrights and publicity rights are totally different from their origins, natures or legitimate purposes.
Anyway, we have to respect the present needs for the publicity rights in the relevant commercial market, which is the sole reason of existence of publicity rights. We need to minimize the effective period or methods of use of publicity rights while we recognize its posthumous continuance.
For this purpose, I suggest a license concept to substitute publicity rights in the above relationships, with regard to the right to use a celebrity's portrait or name. This "publicity license" will solve the most conflicts as above. It will continue to protect the personal nature of celebrities, providing the proper methods to commercially use the celebrity's portraits or names.
We shall be more conservative to admit the concept of publicity rights to our legal system, considering the sufficient protection of personal nature.

참고자료

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