Plaintiff 1 and five others (Law Firm Jin, Attorney Lee Young-chul, Counsel for the plaintiff-appellant)

TND Co., Ltd. (Law Firm Civil and Civil, Attorney Park Yong-hwan, Counsel for the plaintiff-appellant)

October 20, 2016

1. The defendant shall pay to the plaintiffs 18,00,000 won with 5% interest per annum from July 7, 2015 to November 17, 2016, and 15% interest per annum from the following day to the date of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiffs, and the remainder by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 60 million won with 5% interest per annum from July 7, 2015 to the service date of the original copy of the instant payment order, and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. The plaintiffs are six persons ○○○○○, which are affiliated with the entertainment planning company in △△△ Group, and the defendant is a company engaging in clothing wholesale business, miscellaneous wholesale business, etc., and has the brand called “○○○○○○○○○○”.

나. 원고들은 2015. 4. 경 연예인들의 화보와 소식을 전하는 잡지 ‘☆ ☆☆☆☆'를 발행하는 케이컬쳐 주식회사에서 화보촬영을 하게 되었고, 피고 등 의류회사들이 케이컬쳐 주식회사의 요청으로 원고들의 의상을 협찬하였다.

다. “○○○○○ ○"라는 브랜드 의류(주로 티셔츠이다)를 입고 촬영된 원고들의 화보는 ‘☆ ☆☆☆☆' 잡지에 게재되었는데 피고는 원고들이나 소속사인 □□□□의 동의를 받지 아니하고 그중 일부 사진들을 2015. 4.경부터 같은 해 7.경까지 피고의 인터넷 홈페이지 매인배너(MAIN BANNER) 등에 올려놓아 "○○○○○ ○" 브랜드 의류광고에 사용하였다.

D. Around July 6, 2015, the Defendant received a port from △△△ and suspended publishing around that time.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 8, Gap evidence 23, Eul evidence 2 (including branch numbers) and the purport of the whole pleadings

2. Determination as to the cause of the claim 1)

A. Any person has a right not to have his/her face and other physical characteristics recognizable as a specific person by social norms taken, taken, taken, or disclosed without permission, or used for profit. Such portrait rights are constitutional rights guaranteed by the first sentence of Article 10 of the Constitution of the Republic of Korea. Therefore, it is reasonable to deem that unfair infringement constitutes a tort, and a person who has suffered such infringement suffers from mental suffering, barring special circumstances (see, e.g., Supreme Court Decision 2010Da39277, Jan. 27, 2012). However, since a person who selected an artist, etc. comprehensively permitted the disclosure of his/her portrait and name in front of the public due to the characteristics of his/her occupation, it is reasonable to view that the scope of personal benefits is more limited to the general public. Therefore, in order for an artist, etc. to file a claim for damages for reasons of mental suffering by using his/her portrait and name without permission, the method, mode, purpose, etc. of the use thereof, his/her name, reputation, etc., and other special circumstances where an artist suffers from mental suffering or damage.

According to the above facts, it is reasonable to view that the defendant's use of the plaintiffs' portraits without the plaintiffs' or their employees' consent for the advertisement of goods constitutes a tort that infringes on the plaintiffs' personality rights. Thus, barring special circumstances, the defendant has a duty to compensate for damages caused by the plaintiffs' emotional distress.

In regard to this, the defendant argued that it is a business practice in the field of posting a pro rata photograph on the website of the supporting company to inform the facts of the sponsoring company in the case of a company that has contributed to the news photographing of a magazine. However, even if such a practice exists, it is not sufficient to recognize the content of the evidence No. 4, and even if such a practice exists, it does not affect the establishment of a tort unless the plaintiffs' consent is obtained. Therefore, the above argument is rejected as it is without merit.

나. 나아가 손해의 범위에 관하여 보건대, 앞서 본 증거들과 갑 제10 내지 20호증, 을 제2호증의 1 내지 5의 각 기재와 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정, 즉, 피고가 원고들의 사진을 게재한 기간이 3개월 정도 되는 점, 위 게재기간 무렵에는 ‘◇◇◇◇’가 이미 높은 인기를 구가하고 있어서 피고가 상당한 광고이익을 얻었을 것으로 보이는 점, 원고들과 광모모델계약을 원하는 다른 회사들로 하여금 원고들이 피고와 계약을 체결하고 있는 것으로 오인하도록 하여 원고들의 계약체결가능성을 감소시켰다고 볼 수 있는 점, 다만, 잡지에 게재 될 당시에도 사진 하단에 입고 있는 옷이 “○○○○○ ○"브랜드라는 영문 설명이 있었고 피고가 게재한 사진 하단에는 ‘☆ ☆☆☆☆' 라는 출처가 기재되어 있었던 점, 네이버나 다음 등 인터넷매체를 통하여도 위 화보사진들이 일부 공개되었던 점 등 여러 사정을 종합하여 볼 때, 피고가 지급할 위자료 액수를 18,000,000원으로 정하는 것이 타당하다.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs the above 18,00,000 won as well as damages for delay calculated at the rate of 5% per annum under the Civil Act from July 7, 2015, which is the date of the judgment of this case, which is deemed reasonable to dispute the existence and scope of the defendant's obligation from July 7, 2015 to November 17, 2016, and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiffs' claim of this case is justified within the scope of the above recognition, and it is dismissed as the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Kim Young-soo

(1) The Plaintiffs asserted property claims arising from infringement of portrait rights, claim for damages arising from infringement of publicity rights, and claim for restitution of unjust enrichment as selective ground for the same claim. However, as long as they accept the claim for consolation money due to infringement of portrait rights, they should not be determined separately.