In a case where Company A, when photographing and inputting face of communications equipment users, such as smartphones, developed a flock to find a flock artist, and distribute it to users free of charge, thereby using the photograph and name of an celebrat Eul, etc. disclosed on the Internet, the case holding that Company A, without permission, has the obligation to pay consolation money, to Company A, etc., on the ground that the use of the photograph and name of Party B, etc. through the above fl

In a case where Company A, in the event that communications equipment users, such as smartphones, have taken and entered his/her face and distributed them free of charge and without compensation, and used the photograph and name of an artist Eul, etc. already disclosed on the Internet through this process, the case holding that Company A, even if Party B, etc.’s photograph used by Company B, etc. was already disclosed on the Internet with Party B’s permission, it should be deemed that Party B, etc. had made it available to the Internet users to the public to the extent necessary for his/her publicity, on the ground that Party B, etc.’s photograph and name was beyond the scope anticipated or permitted by Party B, etc.’s unauthorized use of the photograph and name for profit-making purposes, such as the above fishing case, exceeds the scope anticipated or permitted by Party B, etc., and thus, the control right and portrait and name of Party B, etc.’s own information was an unlawful act infringing upon the rights that would not be used for profit-making purposes, and thus, Company A, etc. was obligated to pay consolation money to Party B, etc.

Article 10 of the Constitution, Article 751 of the Civil Act

See Attached List of Plaintiffs (Law Firm Dadam, Attorneys Ansan-Gyeong et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant-Appellee] KTWel Co., Ltd. (Law Firm KSEL, Attorney Kim-hee, Counsel for defendant-appellant)

Seoul Central District Court Decision 2013Gahap509239 Decided October 1, 2013

March 13, 2014

1. All appeals by the defendant against the plaintiffs are dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiffs 50,000,000 won with interest of 20% per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. Quotation of the first instance judgment

The reasoning for this Court’s reasoning is as follows: (a) the Defendant’s assertion in the trial is identical to the judgment of the court of first instance, except for an additional determination as to the matters asserted in the trial as stated in the following (2).

2. Additional matters to be determined;

A. The defendant's assertion

1) Non-requirements for the occurrence of consolation money

In full view of the following circumstances, the defendant's act of using the plaintiffs' photographs or names in the instant app does not constitute illegality, and therefore, it cannot be deemed that the plaintiffs suffered mental pain. Therefore, the obligation to pay consolation money is not recognized.

The photograph used in the instant app is already disclosed on the Internet with the permission of the plaintiffs, and the plaintiffs have sufficiently predicted that the above photograph will be freely exposed to the public and used.

○ The Defendant did not directly sell the Plaintiff’s photograph in the instant app, but did not use it for the sale of goods or services, and did not distort or modified it. The Plaintiffs’ name was used only for the purpose of expressing who is the relevant photograph. Even if the Defendant obtained the incidental advertising income by using the Plaintiffs’ photograph and name, it does not interfere with the freedom of publication and expression. In other words, the Defendant offered the instant app for the sake of the public’s sound amusement, not for profit-making purposes. The Defendant’s tort liability in the instant case goes against the equity between the Internet portal site that raises profits, such as advertisements, through the artist’s display and search.

The Plaintiffs also considered the benefits of publicity and public disclosure through the instant app. Some Plaintiffs, while showing the corresponding response to the instant app, used it for publicity by themselves to the public, such as disclosing the search results. The Plaintiffs did not raise any objection to the instant app for three years from the date of the instant app issuance to the date of the instant lawsuit, and therefore, they were impliedly approved for their photograph and name use.

Among the instant app users, the photograph of the Plaintiffs is presented only in cases where there was a person with a face similar to the relevant artist. As such, the names of the Plaintiffs through the instant app and whether or not the Plaintiffs actually have been presented or the number of times is not specified. The liability for the payment of mental pain and consolation money is not recognized solely on the remote possibility.

○ The Plaintiffs are public figures, and their pictures, names, etc. should be expressed to a certain extent. Therefore, in order to recognize the Plaintiffs’ mental suffering, their names or pictures should reach the degree of impairing or impairing the Plaintiffs’ assessment, reputation, appearance, etc., but the Defendant’s act of using the Plaintiffs’ pictures and names in the instant app cannot be deemed to have reached such degree.

2) Amount of consolation money

The same consolation money cannot be recognized uniformly in the absence of distinction between the Plaintiff’s respective nominations and the specifications, and even if each photograph has been actually submitted or disclosed, the same cannot be recognized.

In addition, consolation money should be recognized as a small amount of money less than three million won per capita, in light of the nature of the instant app, public perception, defense response of the plaintiffs over a long period of time, the plaintiffs also obtained intangible benefits, such as de facto publicity, etc. through the instant app, the photographs used in the instant app are already made public on the Internet, and the defendant did not take the plaintiffs' photographs as direct profits.

B. Determination

1) Infringement of portrait rights and occurrence of consolation money

Any person has a right not to photograph, describe, or publish without permission, his/her face and other physical characteristics recognizable as a specific person by social norms, and not to be used for profit. Such portrait rights are constitutionally guaranteed by Article 10(1) of the Constitution of Korea. An individual has an active right not only to engage in private activities but also to actively control his/her own information in today's highly informatization society (see, e.g., Supreme Court Decisions 2004Da16280, Oct. 13, 2006; 2010Da39277, Jan. 27, 2012; 2012Da316286, Jun. 27, 2013). Therefore, unjust infringement on portrait rights constitutes tort (see, e.g., Supreme Court Decisions 2010Da39277, Oct. 13, 2006; 2012Da31268, Jun. 27, 2013).

For the following reasons, the Defendant’s use of the Plaintiffs’ pictures and names without permission through the instant app is illegal, and the Plaintiffs suffered emotional distress thereby.

Even if the photograph used in the instant app is already disclosed on the Internet with the permission of the plaintiffs, it shall be deemed that the plaintiffs, an artist, made public to the Internet users to the extent necessary for their publicity. The unauthorized use of the photograph for profit-making purposes, such as the instant app, exceeds the expected or permitted scope, and thus, it constitutes an unlawful act that infringes upon the plaintiffs' right to control, portrait and name of the plaintiff's own information for profit-making purposes.

○○ The Defendant’s act cannot be justified on the sole basis of the fact that the Defendant did not sell the Plaintiffs’ photographs directly or use them for the sale of goods, etc., and that the pictures were not distorted or modified. The instant app is directly connected to advertising proceeds from the exposure of distribution advertisements displayed on the execution screen of the instant app, and the number of users increased by taking advantage of the recognition level of a famous artist, such as the Plaintiffs, and customer attraction. In light of the circumstances where the Defendant’s advertising sales in 201 and 2012 up to approximately KRW 2 billion in total through the instant app (see, e.g., attached documents of the Defendant, June 27, 2013), it is difficult to view that the Defendant provided the instant app only for the sound entertainment activities of the users, and it is difficult to deem that the Defendant provided the instant app to provide the Internet portal service not for a specific type of service using the guide, but for a specific Internet search service on the Internet website.

○ In fact, the circumstances that the Plaintiffs may see the incidental publicity and the benefit of public disclosure through the instant app, such as using the search results by themselves to the public for publicity, etc. cannot be a ground to deny the Defendant’s tort liability even after considering the amount of consolation money. The mere fact that the Plaintiffs did not raise any legal objection for three years after the issuance of the instant app, it is insufficient to deem that the Plaintiffs impliedly approved the use of their pictures and names on the instant app, and there is no other sufficient evidence to acknowledge it otherwise.

As seen earlier, using the Plaintiffs’ portraits and names in the instant app is an act that infringes on the Plaintiffs’ right to control their own information and the right that the portraits and names are not used for profit-making purposes, and such fact alone does not necessarily lead to mental pain, barring special circumstances. It does not necessarily lead to recognizing mental pain only when the actual display or frequency of the Plaintiffs’ pictures through the instant apps is specified.

○ Even if the Plaintiffs were to have certain degree of publication of portraits, names, etc. as well as their public figures, their pictures, etc. should not be deemed as being used for profit-making purposes as in the instant case. Rather, the Plaintiffs’ primary occupational activities are to gain economic benefits by making use of their portraits, reputation, etc. for profit-making purposes. As such, in a case where the use of their portraits or names without permission is made for profit-making purposes, even if the use does not reach the degree of defamation, it should be deemed as a serious infringement on the rights held by the Plaintiffs with respect to their portraits and names.

Ultimately, this part of the defendant's assertion is without merit.

2) Amount of consolation money

The amount of consolation money for mental suffering caused by tort can be determined at the discretion of the fact-finding court in consideration of various circumstances (see Supreme Court Decision 2003Da8503, May 11, 2006, etc.).

In light of the aforementioned circumstances, particularly the characteristics of the plaintiffs' portrait, the contents of the service provided by the instant app, the ratio of the plaintiffs' pictures to the service and the form and degree of infringement, such as the plaintiffs' portrait rights, etc., and the period of operation of the instant app and sales sales made by the defendant, and the fact that there is a possibility that the plaintiffs can obtain the incidental publicity effects through the instant app, etc., consolation money against the plaintiffs shall be set at KRW 3,00,000, respectively, as determined earlier, and the nature and its infringement of the portrait rights recognized earlier, and the contents of the infringement thereof, and the method of service of the instant app (not only an entertainment with the high level of designation but also an entertainment with the users), etc., it cannot be deemed that consolation money must be determined differently depending on the plaintiffs' designation or statements, and the frequency of exposure in the instant app.

Therefore, this part of the defendant's assertion is without merit.

3. Conclusion

Since the judgment of the court of first instance is justifiable, the defendant's appeal against the plaintiffs is dismissed (the defendant, through reference documents submitted on March 28, 2014, which was after the date of the argument of the court of first instance, by the defendant's argument about the infringement of his/her name and portrait rights in the court of first instance, and again asserted it, which constitutes a withdrawal of part of the lawsuit, and this cannot be asserted again without resorting to a separate lawsuit. However, as determined earlier, even if the plaintiff only maintains the claim for property damage arising from the infringement of the right of publicity and withdraws the claim for consolation money due to the infringement of his/her name and portrait rights at the date of the first instance court of first instance, it shall be permitted to re-claim it as the cause of claim unless there are special circumstances, and it shall not be deemed that a separate lawsuit should be brought on this matter before the date of argument of the court of first instance.

[Attachment] List of Plaintiffs: omitted

Judges Lee Tae-tae (Presiding Judge)