[1] The meaning of the right of publicity and the meaning of the right of publicity in a case where the whole or part of a certain person's name is modified and used to the extent that it can be seen as representing the person (affirmative)

[2] The case holding that the act of changing the name of the former professional camping player into English initial, and using it in the character appearing in the Internet camping game without prior consent of the former professional camping player infringed upon the above player's right of publicity

[1] The right of publicity, which is generally explained as an exclusive right to commercially use and control the economic value of one's own identity, such as name or portrait, does not have a positive law explicitly stipulating it. However, the right to pursue happiness and the right to name, which constitutes one's personality right under the Constitution, includes a right not to be used for profit without permission, in a way to identify a specific person in terms of social norms, and since the economic value formed in relation to a specific person's name, etc. has already been widely recognized in the business related to Internet game business, etc., the act of infringing upon it constitutes tort under the Civil Act in relation to the specific person. In light of the above, it is sufficient to understand that a specific person's right to exclusively control the commercial use of his/her own identity such as name or portrait, as well as the use of all or part of a person's name or portrait as it is if it is modified to the extent that the person's name is expressed even if it is not used as it is. This right of publicity is derived from the right to pursue happiness and property right.

[2] The case holding that the act of changing the name of the former professional camping player into English initials without prior consent of the former professional camping player and using the character appearing in the Internet camping game was an infringement of the right of publicity by commercially using the economic value of the above player's identity.

[1] Article 10 of the Constitution, Article 750 of the Civil Act / [2] Article 10 of the Constitution, Article 750 of the Civil Act, Article 300 (2) of the Civil Execution Act

Creditor 1 and 12 others (Law Firm Construction, Attorney Lee Jong-hwan, Counsel for the plaintiff-appellant)

CB Internet Co., Ltd. (Law Firm Square, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

1. Subject to the condition that the obligees deposit 100,000,000 won as joint collateral for the debtor or submit a document concluding a payment guarantee entrustment contract with the above amount as guaranteed amount:

A. The debtor shall not use the obligees' English initial in each English on the Internet camping game operated under the name of "Magumagu", at each Internet site listed in the separate sheet No. 1 list.

(b) The enforcement officer shall publicly notify the purport of the above order in an appropriate manner.

2. The obligees' remaining claims are dismissed, respectively.

3. Three-minutes of litigation costs shall be borne by the obligees, and the remainder by the obligor, respectively.

The obligor shall not use the obligees' English initials or other letters, numbers, or codes substituted therefor, which may recognize that the obligor is the same as the obligees, on the Internet camping game operated under the name of "Magumagu", at each Internet site listed in the separate sheet No. 1 list. An execution officer shall publicly notify the purport of the above order in an appropriate manner. If the obligor violates the above order, the execution officer shall pay to the obligees the money calculated at the rate of KRW 10,000,000 per day from the date of notification of the provisional disposition order to the end of the violation.

1. Basic facts

According to the overall purport of the record and examination of this case, the following facts are substantiated:

A. The obligees are former professional camping players, and the obligor has produced and supplied Internet camping games (hereinafter “the instant games”) under the name of “Magumagu” from Aark, Inc., Ltd., a game producing company, and provide users with the instant games via each Internet site listed in the [Attachment 1] list (hereinafter “instant site”).

B. In the process of producing and distributing the game of this case, the debtor and the corporation used personal information, such as the obligees' names, teams belonging to the company at the time of players, and the number of seats, without the obligees' prior consent, in the game of this case.

C. Accordingly, the obligees asserted that the obligor’s act of using personal information, such as the obligees’ names, without permission, infringed the obligees’ right to use their names exclusively or for commercial purposes, and filed a provisional disposition against the obligor, such as the Seoul Southern District Court 2009Kahap1108, Seoul Southern District Court 2009Kahap108, and the above court decided on December 17, 2009 that “the obligor shall not use the obligees’ names in the Internet camping games operated in the name of the game called “Magumagu” on each site of this case.”

D. Accordingly, on January 19, 2010, the debtor posted on each site of this case a notice stating that the name indication of 27 retired players including creditors is converted to a non-real name, and since the 20th day of the same month, other elements of the game of this case, such as the obligees' ability to utilize the obligees' organization belonging to the time of players, the location of the number of expenses and the records of the players' vision, etc., are modified and used only the obligees' names as English initial (hereinafter "each initial of this case") as shown in the separate sheet 2.

2. Determination as to whether the right of publicity is infringed

A. The parties' assertion

The obligees asserts that the obligor's act of using the obligees' each initial of this case without the obligees' consent is prohibited as it infringes upon the obligees' right of publicity, which is the right to use their own identity for commercial purposes.

The debtor asserts that the right of publicity cannot be acknowledged without legal basis, and each initial of this case alone cannot be viewed as a mark identifying the obligees' identity, and the use of each initial above alone cannot be viewed as commercial use of the obligees' identity.

(b) Markets:

(1) The right of publicity, which is generally explained as an exclusive right to commercially use and control the economic value of one's own identity, such as name and portrait, does not have a positive law explicitly stipulating it. However, the right to pursue happiness and the right to name, which constitutes the contents of the personality right under the Constitution, shall include the right not to be used for profit without permission by any means which can be known as a specific person by social norms. As seen earlier, since the economic value of creditors' name, etc. has already been widely recognized in the business related to Internet game business, etc., it is deemed that the act of infringing upon it constitutes tort under the Civil Act in relation to the creditors. In light of the above, it is sufficient for the creditors to understand that the creditors' right to exclusively control the commercial use of their own identity, such as name and portrait, constitutes tort under the Civil Act in relation to the creditors. Thus, the right of publicity shall be deemed as infringing upon the right of publicity in cases where all or part of a person's name and name are modified to the extent that they are expressed even if they are not used.

Therefore, as to whether the above act of the obligor infringed upon the obligees' right of publicity, the following circumstances are explained by the health, the records of this case and the purport of the whole examination, i.e., ① the obligees are former players, the obligor uses the obligees' each initial of this case in the game of this case without the obligees' consent, ② the obligor uses the obligees' personal information of the obligees' personal information such as the obligees' names, teams belonging to the players' group and the number in the game of this case without the obligees' consent, ② the obligor uses the obligees' personal information in the game of this case without the obligees' prior consent, and issued a provisional disposition prohibiting it. The other elements of the game of this case are without changing the obligees' names, and the obligees' names are changed to each social of this case, and the obligor uses the obligees' names to the users of this case to change their names to social, and thus, it is easily recognized that the obligor used the obligees' rights of publicity of this case to the obligees' personal information of this case without the obligees' rights to use the obligees' personal information of this case.

In addition, the obligees' right to exclusively use the economic value of their own identity, such as each social of this case, is closely related to their personal characteristics, and it is not of the nature that can be converted exclusively into property value, and as seen earlier, since the debtors continue to use each social of this case for the game of this case until now, the necessity of its preservation is also explained.

Therefore, the obligor should be prohibited from using the obligees' each initial of this case in the game of this case.

3. The dismissed part

Furthermore, the obligees also seek that the obligor should not use letters, numbers, or codes that can identify the same person as the obligees in the game of this case. However, the purport of this part of the motion alone is that it is difficult to regard certain characters, numbers, or codes as being included in the subject of the motion to the extent that it is possible to execute the application, and there is no evidence that there is a risk that the obligor may perform the act identical to the purport of this part of the motion. Therefore, the motion

In addition, the creditors also apply for indirect enforcement seeking monetary payment in preparation for the case of the debtor's violation of the provisional disposition order of this case. However, this is likely to achieve the purpose of the application by ordering the duty of omission, such as the entry of the order No. 1-A, and if the debtor violates the provisional disposition order of this case, the creditors may seek indirect enforcement again through separate procedures. Thus, it is not necessary to order indirect enforcement in preparation for the case of the debtor's violation of the provisional disposition order of this case.

4. Conclusion

Therefore, the obligees' motion of this case is accepted within the scope of the above recognition on the condition of providing security, and the remaining motion is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 1 and 2] List: omitted

Judges Lee Byung-ro (Presiding Judge)