[1] The meaning of the right of publicity and whether it can be recognized as an independent property right independent from the personality right (affirmative)

[2] The case holding that the act of manufacturing game products using a name of a famous professional camping player without permission and providing them to a commercial mobile communications company constitutes a tort that infringes on the above professional camping player's right of name and right of publicity

[3] The criteria for calculating the amount of property damage caused by the infringement of the right of publicity

[4] In a case where a professional camping player's name is used in the production of a mobile camping game without permission, the case denying the liability to pay consolation money due to mental distress in addition to property damage

[5] The case holding that in a case where a game product using a name of the professional camping player was manufactured and sold without the permission of the professional camping player, the above professional camping player's right to name was infringed and the game product using the professional camping player's name was not manufactured, supplied and sold

[1] The right to pursue happiness under the Constitution and the right to name, which form the content of the right to personality, includes the right not to be used or publicly announced without permission by the method to identify a specific person under social norms, and the right not to be used for profit-making purposes. The right to name, which form the right to pursue happiness under the Constitution, includes the right not to be used or publicly announced for profit-making purposes. In a case where a famous person's name or portrait is promoted by using a famous person's name or portrait or where a name or portrait is attached to a product, the right to use the famous person's name is effective as contributing to the promotion of the sale of the product. Such effect can be understood as an independent economic profit or value arising from reputation, social evaluation, designation, etc. acquired by a famous person's own effort. Thus, the act of commercial use of his name without permission by the famous person constitutes a tort under the Civil Act which infringes on the right not to use his name for profit-making purposes. It is sufficient to understand the right of publicity that is derived from personality, but it should be viewed as an independent property right independent from an independent property right.

[2] The case holding that the act of manufacturing game products using a name of a famous professional camping player without permission and providing them to a commercial mobile communications company constitutes a tort that infringes on the above professional camping player's right of name and right of publicity

[3] Property damage caused by the infringement of the right of publicity is equivalent to the price to be paid in cases where his/her name is used after the consent of the right of publicity is obtained, and in cases where the right of publicity has not entered into a contract for use of his/her name or received any usage fee, the compensation for the generalization in the industry can be considered as the basis for calculating the amount of damage.

[4] The case holding that since a professional sports player's name, etc. is hard to be viewed as suffering from mental suffering as a property right unless there are special circumstances such as where his/her name was used without permission such as the evaluation, reputation, appearance, etc. as a sports player in light of the method of use, purpose, etc., even if his/her name was used without permission, the right to commercially use his/her name, etc. shall be deemed to be recovered from mental suffering by compensation for property damage in cases where the right to commercially use his/her name, etc. is infringed due to other person's tort, and even if he/she used his/her name in the production of a mobile game product without permission, it is not deemed that the professional camping player's name was damaged by the evaluation, reputation, or appearance as a sports player's mental suffering and it is not deemed that he/she had suffered from mental suffering other than the above mental suffering due to his/her own mental suffering.

[5] In a case where a game product using a name without the permission of a famous professional camping player was manufactured and sold, the case affirming the claim that the above professional camping player's personal right was infringed and the right to name was not infringed and the game product using the above professional camping player's name is not manufactured, supplied and sold in the above game product

[1] Article 10 of the Constitution, Article 750 of the Civil Act / [2] Article 750 of the Civil Act / [3] Articles 393, 750, and 763 of the Civil Act / [4] Article 751 of the Civil Act / [5] Article 30 (2) of the Civil Execution Act, Articles 751 and 764 of the Civil Act

Plaintiff 1 and 122 others (Law Firm Hannuri, Attorney Jeong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1, et al. (Law Firm KEL, Attorney Park Sung-hwan, Counsel for the defendant-appellant)

may 22, 2006

1. The Defendants may not use the Plaintiffs’ names or produce, supply and sell game products using the Plaintiffs’ names on the game products “Korea Professional Camp-gu 2005” produced, supplied and sold by them.

2. The defendants shall pay to each of the plaintiffs 238,238 won with 5% interest per annum from February 16, 2005 to April 19, 2006 and 20% interest per annum from April 20 to the date of full payment.

3. The plaintiffs' remaining claims against the defendants are dismissed.

4. 3/5 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendants, respectively.

5. Paragraph 2 can be provisionally executed.

The defendants shall pay to each of the plaintiffs 3,00,000 won with an amount of 5% per annum from February 16, 2005 to the date when the duplicate of the application for amendment of the claim of this case was served on the defendants, and 20% per annum from the next day to the date of complete payment. In case where the defendants violated paragraph (1) of this case, the defendants shall pay to each of the plaintiffs 10,000 won per annum from the date of receiving the original copy of this judgment to the date of the violation.

1. Facts of recognition;

The following facts are not disputed between the parties, or each of the statements in Gap evidence Nos. 1 through 8, Eul evidence Nos. 2, 3, and 6 (including each number), and each of the following facts can be acknowledged by considering the whole purport of the arguments as a whole for the fact-finding with respect to the case law company, the KTFel, the elbcom, and the KS Telecom.

A. Status of the parties

The Plaintiffs are the professional camping players belonging to each of the eight Korean professional camping-gu teams, whose names are well known in the Republic of Korea through the media, and Defendant 1 Co., Ltd. (hereinafter “Defendant 1”) is a corporation established for manufacturing, selling, etc. software, and Defendant 2 Co., Ltd. (hereinafter “Defendant 2”) is a corporation established for the purpose of information and communications service business, etc.

B. Production and sale of the game of this case

(1) Defendant 2 was delegated with the rights of each professional camping district or entrusted with the rights of each professional camping district, and entered into a radio game contract with Defendant 2 to pay 50% of the net sales generated by developing the mobile phone camping district game and selling it through the mobile communications company to Defendant 2, such as insignias, trademarks, logos, Mbrums, Mscoons, and sports-related data (hereinafter “protruding district-related assets”), and Defendant 1, May 10, 2003, Defendant 2 and Defendant 2 provided Defendant 1 with his own professional camping district-related assets, and Defendant 1 entered into a mobile game contract with Defendant 2 to pay Defendant 2 50% of the net sales generated by selling it through the mobile communications company.

(2) Defendant 1 produced a mobile phone game with the name of “Korea professional camping-gu 2005” without the consent of the Plaintiffs (hereinafter “instant game product”). The instant game product is a game product with the content that, if a user selects one of the 8 professional camping-gu teams in Korea, the player who actually used the group’s name, and various personal records appear on the screen, the player who used the group’s personal records appear in the screen to run a camping-gu game. The subscribers of the mobile communications company may use the instant game product with pay-free download.

(3) On February 1, 2005, Defendant 1 entered into a contract with the KSV Co., Ltd. on June 24, 2005 to provide information that Defendant 1 shall pay part of the information usage fees received from the subscribers to the mobile communications who received the instant game products to Defendant 1 at the information rate, between the company on June 24, 2005, and the company on August 1, 2005.

(4) From February 16, 2005, the case telecom Co., Ltd., which is each mobile communications company, began to sell the instant game products to each of its users for fee from Apr. 1, 2005, and from Jun. 24, 2005, the KS Telecom Co., Ltd. began to sell the instant game products to each of its users for fee.

2. The parties' assertion

A. The plaintiffs' assertion

Since the Defendants violated the Plaintiffs’ personal rights and the Plaintiffs’ rights of publicity by jointly producing, supplying and selling the instant game products without obtaining the Plaintiffs’ permission, the Defendants are obligated not to use the Plaintiffs’ names or produce, supply and sell the game products using the Plaintiffs’ names, and due to the Defendants’ aforementioned acts, the Defendants’ respective damages amounting to KRW 3 million to each Plaintiffs (i.e., KRW 2 million for property damage + KRW 1 million for mental damage). Accordingly, the Defendants are obligated to compensate each Plaintiffs for such damages.

B. The defendants' assertion

The defendants can not recognize the right of publicity claimed by the plaintiffs, without legal basis, separately from the right of personal right's name. ② The plaintiffs' right of portrait right and copyright, etc. to enter into the professional camping team and camping club agreement belongs to the group, not the plaintiffs. The plaintiffs belong to the group of players belonging to the group of the group, not the plaintiffs. ③ The plaintiffs' right of name should be limited to a certain degree because their names are publically used due to the professional camping games through the media, races, interview, advertisement, etc. since the game work of this case is merely a mobile camping games using the plaintiffs' names, which are professional camping players, and even if the defendants used their names in the game work of this case, they cannot be said to have infringed the plaintiffs' right of personality right.

3. Determination as to whether the plaintiffs' right to name and publicity infringed

A. Whether the plaintiffs' right of publicity is recognized

In general, the right of publicity, which is explained as a right to commercially use, control or exclusively control the economic benefits or values of names, portraits, etc., began to be protected by the case law of the United States and each state, where the advertising industry has developed, and in Japan and Korea, a majority of the judgment of the lower court that recognized such rights can be found, but it is true that there is no established positive law or established customary law that specifically prescribes the contents, transfer and inheritance of the right of publicity, the object of protection, the duration of protection, remedies, etc.

However, the right to pursue happiness and the right to name, which form the content of the right to personality, under the Constitution, includes the right not to be used or publicly announced without permission, and the right not to be used for profit-making purposes in a manner that enables people to know that they are specific persons under social norms. The right to name, which form the right to pursue happiness and the right to personality, includes the right not to be used for profit-making purposes. In a case where a well-known person's name or portrait is promoted by using a well-known person's name or portrait, or where a name or portrait is attached to goods, the right to use the well-known person's name will be effective as contributing to the promotion of the sale of the goods. Such effect can be understood as an independent economic interest or value derived from reputation, social evaluation, or nomination acquired by a well-known person, such as the plaintiffs' own effort. Therefore, the act of commercial use of the plaintiffs' name without permission constitutes tort under the Civil Act that infringes upon the plaintiffs' right not to use for profit-making purposes. This is sufficient to understand the right of publicity that is derived from the plaintiffs' personality.

B. Whether the right of name and the right of publicity are infringed

(1) Whether the defendants are recruited or not

Defendant 2 not only provided Defendant 1 with its own professional camping-related assets, but also entered into a contract with Defendant 1 to receive 50% of the net sales from the game of this case. In full view of the overall purport of the arguments in Gap evidence 7-1, 2, Gap evidence 8, and Eul evidence 2, the above radio game business contract entered into between Defendant 2 and Defendant 1 shall be deemed as follows: "Defendant 2 shall make every effort to raise the external image of both companies through this business and make every effort to improve service quality and profit-making (Article 8 (1)); "When a third party obstructs the game business which infringes on the assets of the Camp-gu Committee of Korea, Defendant 2 shall make every effort to protect related assets and markets (Article 8 (4)); "Defendant 2 shall make every effort to supply the game of this case to promote the sales of the game of this case; thus, Defendant 2 shall jointly use the game of this case to supply the game of this case, and thus, Defendant 2 shall be deemed as supplying the game of this case's profits to promote sales."

(2) Infringements on the right of name and publicity

Thus, the defendants jointly produced the game product of this case using the plaintiffs' names without the plaintiffs' permission and provided it to a commercial mobile communication company, thereby infringing the plaintiffs' personality rights and publicity rights illegally.

(3) Judgment as to the defendants' assertion

The defendants asserted that the plaintiffs' rights such as their portrait rights, copyright, etc. are belonging to the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group of the group.

In addition, the defendants should be limited to a certain extent that their names are publicly announced because they were public figures, and the defendants' assertion that they cannot be infringed merely because they were used for the camping games for mobile phones. Therefore, even if they were public figures, their names should not be permitted to be used even when they were used for commercial purposes. Thus, the defendants' assertion is without merit.

4. Determination on the claim for damages

(a) Occurrence of liability for damages;

The defendants are obliged to compensate for all damages suffered by the plaintiffs due to the above act of infringement of right of publicity and right of publicity.

(b) Scope of damages;

(1) Property losses

Since property damage suffered by the plaintiffs due to the defendants' infringement of the right of publicity is the amount equivalent to the price that the defendants should pay to the plaintiffs when they use their names with the plaintiffs' consent. If the right of publicity does not enter into a contract for use of their names or receive usage fees, it can be used as a basis for calculating damages. First of all, the defendant's home agrees to pay 50% of the net sales from the game of this case to the defendant 2 as the price for the use of the protruding-gu related assets. Although the right of use is not included in the professional camping-related assets, the defendants believe that the right of use of the plaintiffs' names was included in the professional camping-related assets, and the plaintiffs' names were determined by mutual agreement after considering the influence on the business feasibility of the game of this case, it is reasonable to recognize that 50% of net sales and the right of use of the plaintiffs' names were used in the Internet game of this case as the price for use of the game of this case to some extent that the defendant's name or use of the game of this case can be acknowledged as the above 10% of user fees.

In full view of the purport of the arguments as to Gap evidence Nos. 1 through 4, Eul evidence Nos. 4 and 5 (including various numbers), and each of the above 30,000 won (including the above 30,000 won), the defendants cannot be viewed as being entitled to the above 213,859,855 won in total between the above 30,000 and September 2005, the defendants' damages amount to 30,000 won x 316 won in the above 4,000 won in the above 30,000 won in the above 30,000 won in the above 30,000 won in the above 16,162,816 won in the above 30,000 won in the above 30,000 won in the above 30,000 won in the above 30,000 won in the above 30,000 won in the above 205.

(2) Mental damage

The plaintiffs asserted that they suffered mental pain due to the above acts of the defendants and sought payment of 1,00,000 won as consolation money to the defendants. However, in light of the occupational characteristics of professional sports players, such as the plaintiffs, who work for the public through athletic relay, interview, advertisement, etc., and who wish or desire to make their ordinary names open to the general public, barring special circumstances such as where their own names were used without permission, their evaluation, reputation, appearance, etc. as players in light of the method and purpose of use can not be deemed to have suffered mental suffering. Even if they do not do so, they cannot be seen to have suffered mental suffering. Thus, even if they did not have suffered mental suffering from the above acts of the defendants, they cannot be seen to have suffered mental suffering because they did not suffer from the above acts of the defendant's own mental suffering, and therefore, they cannot be seen to have suffered mental suffering from the above acts of the defendant's use of the game products as property damage by the acts of the defendant's use of the defendant's game products.

(3) Conclusion

Therefore, the defendants are obligated to pay to each of the plaintiffs 238,238 won as well as damages for delay at the rate of 20% per annum as stipulated in the Civil Act from February 16, 2005, which was commenced on February 16, 2005 when the defendants sold the game of this case to users, as they sought by the plaintiffs. The defendants are obligated to pay damages for delay at the rate of 5% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from April 20 to the day of complete payment, until April 19, 2006, when it is recognized that it is reasonable for the defendants to resist the existence and scope of the obligations of this case.

5. Determination on the claim for prohibition of use of name

(a) Prohibition of using the right of name;

The defendants used the plaintiffs' names in producing and selling the game of this case without permission and infringed the plaintiffs' right to name as personality rights. Since the right to name as personality rights is the same as in the case of real rights, the plaintiffs can seek prohibition and prevention of infringement on the ground of infringement on their right to name. Thus, the defendants are obliged not to use the plaintiffs' names or produce, supply and sell game products using them in the game of this case which they produced, supplied and sold.

B. Determination on indirect compulsory performance claims

In addition to seeking prohibition and prevention of infringement of the right to name against the Defendants, the Plaintiffs seek indirect enforcement against the said violation. To ensure effective enforcement of the judgment ordering the said duty of omission, the Plaintiffs are likely to violate this within a short period, even if the enforcement title is established, considering the establishment of enforcement title as at the time of the closing of argument in the litigation proceedings regarding the duty of omission. In a case where the judgment procedure can calculate an appropriate amount of compensation to be ordered under Article 261 of the Civil Execution Act, the judgment procedure may also order compensation in the event that the primary debtor fails to perform his/her obligations under the above Act. However, in this case, the Defendants may order compensation in certain cases when considering the circumstances revealed in the pleadings of this case, such as the fact that the primary debtor produces the game products of this case based on Defendant 2’s professional camping-related assets. In light of the aforementioned circumstances, the Defendants’ request for this part of this case is deemed to have been achieved by ordering the said omission against the Defendants.

6. Conclusion

Therefore, each of the plaintiffs' claims against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as they are without merit. It is so decided as per Disposition.

Judges Cho Young-jin (Presiding Judge) Kim Jong-ho