Whether so-called right of publicity can be recognized as an independent property right that exclusively controls the property value of the name or portrait of a deceased person (negative)

Since our country has recently developed entertainment, sports industry and advertising industry, and there are many disputes arising therefrom, there is a need to recognize the concept of the so-called right of publicity in order to regulate it. However, it is difficult to recognize the right of publicity as an exclusive and exclusive property right just because there is a need to do so without the basis of the positive law such as law and treaty, or the established customary law in our country where the right of publicity is adopted. The requirements for establishing the right of publicity, the transfer and inheritance of the right of publicity, the object of protection, the duration of the right of publicity, the remedy for infringement, etc. should be established in detail, but the right of publicity can be recognized only if the legal basis for specifying the requirements for establishing the right of publicity, the right of publicity is established.

[1] Article 185 of the Civil Code

J. S.D. (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Co., Ltd. and one other (Defendant-Appellee et al., Counsel for the defendant-appellant)

Seoul District Court Decision 99Da84901 delivered on July 14, 2000

1. The plaintiff's appeal is all dismissed.

2. The plaintiff's claim extended in the trial is dismissed.

3. The costs of appeal shall be borne by the plaintiff.

The defendants are prohibited from using the signature of each mark listed in the attached Table 1 or of each photograph listed in the attached Table 2, portrait or in the attached Table 3, or from manufacturing, selling, distributing, importing, exporting, or advertising goods using the signature of each mark listed in the attached Table 1, or from manufacturing, selling, distributing, importing, exporting, or advertising goods using the signature of each mark listed in the attached Table 2, or in the attached Table 1, the signboards on which the signature of each mark listed in the attached Table 2 or in the attached Table 3 is indicated, the pictures, portraits or seals listed in the attached Table 2, the portraits, posters, name cards, finished products and semi-finished products of packaging paper, and the marks listed in the attached Table 1, photographs listed in the attached Table 2, portraits and the attached Table 3, the marks listed in the attached Table 2, the portraits of the attached Table 3, and the bottoms or geographical features for printing and printing of the attached Table 3 (the plaintiff's claim of the plaintiff).

(1) The original judgment shall be revoked. (2) The defendants shall not use each mark listed in the separate sheet No. 1, or manufacture, sell, distribute, import, export, or advertise goods using it. (3) The defendants shall destroy the marks listed in the separate sheet No. 1 among the finished products and semi-finished products of each office, store, warehouse, place of business and factory, signboards bearing marks listed in the separate sheet No. 1 on which marks listed in the separate sheet No. 1 are indicated, leaflet, master, name box, finished products and semi-finished products of packing paper, and (b) subordinate products, (c)

1. Basic facts

Evidence 1-1, evidence 2, evidence 2, evidence 3-1 through 3, evidence 4, evidence 5-1 through 11, evidence 6-1 through 7, evidence 7-1 through 5, evidence 8, evidence 9 (the same as evidence 27), evidence 10 (the same as evidence 27), evidence 11-1 through 42, evidence 12 through 15, evidence 21-1 through 5, evidence 22, evidence 23-1 through 3, evidence 28-1 through 3, evidence 29 through 34, evidence 15-1, evidence 9-1, and evidence 9-1, evidence 5-1, and evidence 9-1, evidence 5-1, and evidence 9-1, evidence 1, and 5-1, respectively.

가.제임스 딘(James Dean)은 1931. 2. 8. 미합중국 인디아나주에서 아버지인 윈튼 딘(Winton A. Dean)과 어머니인 밀드레드 딘(Mildred M. Wilson Dean)과의 사이에서 태어났고, 밀드레드 딘이 1940. 4. 14. 사망하여 윈튼 딘이 에셀 딘(Ethel M. Dean)과 재혼을 하자 제임스 딘은 고모인 오르텐스 윈슬로우(Ortense Winslow)와 고모부인 마르커스 윈슬로우 시니어(Marcus Winslow Sr.) 사이에서 성장하여 영화배우로 활동하였는데, 그가 1955. 9. 30. 미혼인 채로 사망하여 아버지인 윈튼 딘이 미합중국 인디아나주 법률에 따라 망 제임스 딘의 모든 권리를 상속하게 되었고, 제임스 딘은 사망한 후 지금까지도 영화배우로 널리 알려져 있다.

나.윈튼 딘은 1984. 3.경 마르커스 윈슬로우 시니어의 아들인 마르커스 윈슬로우 주니어(Marcus Winslow Jr., 원고 대표자 Marcus D. Winslow와 동일인이다)와 오르텐스 윈슬로우에게 제임스 딘의 성명 및 초상 등에 관한 일체의 권리를 양도하는 내용의 구두계약을 체결하였다.

(c)As of June 2, 1984, 1984, the c.i.e., the c., the trust administrator, the trust administrator, the trustee, and the heir or transferee of the c.i.e., the c., the c. Jinan Pecock and its heir or transferee, by transferring or transferring to the trustee all rights and property rights in possession of the c.e., the name, portrait and visual description of the c. E., the trust administrator, the trust foundation, the object of the trust is the trust, the trustee, and the c.e., the c., the c., the c.e., the c., the c., the c.i., the c.i., the c.s. and the c.s., the trust administrator, the trust administrator's name and the c., the right to share in the trust property, the trust property's name and the right to share in the trust agreement.

라.망 제임스 딘의 재산상속인인 윈튼 딘이 1988. 1. 22. 제임스 딘의 퍼블리시티권 등을 제임스 딘 재단(The James Dean Foundation, 이하 '이 사건 재단'이라 한다)에게 확정적으로 양도한다는 내용의 공증을 하고, 다시 1990. 6. 20.에 이르러 이 사건 재단과 오르텐스 윈슬로우, 마르커스 윈슬로우 주니어 및 조안 피콕과의 사이에서 제임스 딘과 관련된 권리가 위와 같이 이 사건 재단에게 귀속되었음을 확인하고 이 사건 재단은 윈튼 딘 부부에게 생존기간 동안 매월 미화 2,500$을 지급한다는 등의 내용이 담긴 계약서를 작성하였다.

E. On February 27, 1997, the Grant Cirit Court of the United States of America confirmed that Trant Circuit and Eircitius are the trustee of the Foundation of this case, and that Mracker Rolo and Maur Canadian are the beneficiary of the Foundation of this case with the shares of the Foundation of this case, and that the Foundation of this case was made with the portrait and name of Maur Dozlllllllllllllllllllllllllll, and the right to do so, and that the trustee of the Foundation of this case grants the right to transfer the shares of the Foundation of this case to the beneficiary of the Foundation of this case, and that the trustee of the Foundation of this case shall transfer or distribute the property of the Foundation of this case to the plaintiff of this case and the trustee of the Foundation of this case after the completion of the above transfer and distribution. According to the above judgment, the trustee of the Foundation of this case shall transfer the shares of this case to the plaintiff of this case and the Foundation of this case 10.

(f)In relation to each mark listed in the separate sheet No. 1 (hereinafter referred to as "each mark of this case"), from around 1991, on which the name, etc. of Hexidine was stated, Jinjin established the "Good Person for the Defendant Company" on May 1, 1993, and on April 30, 1996, the "No. Haban Co., Ltd." (hereinafter referred to as the "No. Duz. Duz. Duz. Co., Ltd. prior to the mutual change of June 12, 200), each of the marks listed in the separate sheet No. 1 (hereinafter referred to as "each mark of this case") was marked on clothes, shoess, cosmetics, cosmeticss, Internet domains, etc. with the permission for use of each mark of this case from Hexin, the Defendants posted them on products, their packagings, signs, carbags, posters, photographs, etc., and sold goods such as clothes, labels, etc. on the Internet, and posted them on the website of the defendants from 1 to 4 to 97.

2. The plaintiff's assertion

The plaintiff asserts as follows as the cause of the claim of this case.

가.원고는 미국의 저명한 영화배우였던 제임스 딘의 상속인인 윈튼 딘으로부터 제임스 딘의 성명, 초상 등에 관한 독점적 사용권을 내용으로 하는 퍼블리시티권을 전전 양수한 자이다.

B. The Defendant: (a) indicated the name of the Hexidine in the instant marks on their products and packaging sites; (b) manufactured and sold goods, such as clothing, by placing the portrait and signature of the Hexidine on the Defendants’ stores or the Internet site; and (c) thereby infringing the right of publicity held by the Plaintiff; and (d) accordingly, the Plaintiff sought against the Defendants the prohibition of infringement and the destruction of infringing articles, such as the purport of the claim.

3. Determination

A. The Plaintiff’s claim of this case is premised on the Plaintiff’s acquisition of the right of publicity, which is a right to exclusively control and exclusively control the property value of the Plaintiff’s name, portrait, signature, etc. from Yidine. Therefore, we examine whether such right can be recognized under our law.

(b)the name or portrait, etc. of a well-known person, such as a well-known, social evaluation, and arbitrative player who acquired the reputation, reputation, etc., is attached to the good or used for the service business, the promotion of the sale of the good, or the promotion of the service business activities, and the customer attraction personnel with such well-known names, portraits, etc., are treated as economic benefits or value and are traded commercially, and therefore, it is difficult to explain or protect such name rights, portraits, existing copyrights, and the legal principles of the Unfair Competition Prevention Act, alone;

Therefore, one of the federal appellate courts of the United States recognizes the right to exclusively and exclusively control the above property value as an independent property right in 1953, and since the protection of the right of publicity under the name of the right of publicity, many of the states of the United States and many scholars have been supported by the right of publicity, the right of publicity is not a property right but a personality right, so inheritance and transfer is possible. The right holder of the right of publicity or a person who succeeds to or acquires the right of publicity can seek not only compensation against the infringer, but also prohibition of infringement.

(c)In order to regulate this, we accept the need to recognize the new concept of right of publicity, as seen earlier, in order to regulate it, since there is a lot of dispute arising from the use of the name and portrait of a famous person in the advertisement due to the rapid development of entertainment, sports industry and advertising industry in Korea.

However, it is difficult to recognize the right of publicity, which is a unique or exclusive property right similar to a real right, solely on the basis that there is a need for the positive law such as law and treaty or established customary law in our country taking the principle of sexual law, and only if there is a legal basis for specifically stipulating the requirements for establishment of the right of publicity, transfer and inheritance, object of protection, duration of protection, remedy for infringement, etc., the right of publicity can be acknowledged as asserted by the plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that the right of publicity is recognized as a property right under our law is dismissed in its entirety because it is not necessary to examine it further, and the judgment below is just in its conclusion, and the plaintiff's claim extended in the plaintiff's appeal and the trial court are dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Yang Dong-dong (Presiding Judge)