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Easy to Violate, Hard to Protect: The Right of Publicity
  • 최보윤 기자
  • 등록 2022-09-02 13:39:51
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 Recently, the song “A Most Private Evening,” which was scheduled to be released by the famous Korean composer Yoo Hee-Yeol, has become a hot topic because it plagiarized the song “Aqua” by world-famous composer Sakamoto Ryuichi. The public is raising their voices in criticism of plagiarism resulting from low awareness of copyright law. Many people are still unaware of the scope of copyright laws, leading some to commit copyright infringement. The “right of publicity” is one such concept that is not widely known in Korean society. The right of publicity is the right to control the commercial use of the economic value of names or portraits. Therefore, in order to increase awareness of this issue, Pharos will discuss some actual cases where the right of publicity has been violated.


 The right of publicity is the right to control the commercial use of the economic value of names or portraits. Therefore, if something characteristic of a famous person such as a celebrity or sports player is used commercially without permission, it can violate publicity rights. Legally restricted portrait rights, which are easily confused with the right of publicity, are related to a person’s picture or portrait. However, the right of publicity involves the commercial use of famous celebrities’ names or photos, so unlike portrait rights, commercial use is a defining factor. Naturally, using the name or portrait of a celebrity in advertisements has the effect of promoting the product and increasing sales. Actually, it is not difficult to find companies around us that are violating the right of publicity of celebrities for their own benefit. For example, an online shopping site sometimes writes the advertisement phrase “Clothes worn by celebrity A” in the product description box without permission. Another example is when a company uses a celebrity’s caricature for promotion. Surprisingly, some major companies such as Shinhan Bank and Lotte Premium Outlet used Kim Joo-Young’s caricatures and famous lines from the character of the popular drama “Sky Castle” without permission.


△ ‘S’ Bank’s Viral Marketing Image


 In a similar case, actress Park Mi-Sun directly expressed her displeasure to companies that referenced a popular scene in which she played the role of “Oh Mi-Sun” in the drama “Soonpoong Clinic” without permission, saying, “It makes no sense to use my caricature for commercial purposes without my permission.”


△ Park Mi-Sun’s Instagram


 The names and portraits of celebrities are things that symbolize celebrities and that have consumer appeal and independent economic value. In other words, the names and portraits of celebrities and sports players are different from ordinary people. For this reason, most people who are not celebrities may not easily sympathize with this issue. The thoughtless acceptance and consumption of content by modern people who lack media literacy is also a problem. This is because many people quickly share and enjoy unofficial posts through social media without recognizing violations of the right of publicity. However, the consumer appeal of celebrities is the result of long -term effort and investments by themselves or their agents. The value of their hard work should not be diminished. Companies frequently and illegally get free promotion by violating the right of publicity. However, celebrities’ right of publicity has sufficient ethical and legal grounds to be protected, and both companies and individual citizens are obligated to respect and protect their rights. It is easy to think that the right of publicity is irrelevant to ourselves, but we must act more carefully to protect the rights of others.


 So how are other countries dealing with the right of publicity? The concept of the right of publicity was established in the United States, which advanced in the advertising industry early. The United States does not have a federal law covering the right of publicity since the United States highly regards the autonomy of each state. Therefore, some states have written laws, and some states have case laws. The first time specifying the right of publicity in court was in 1953 on the judgement “Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc” by the US Supreme Court. The defendant of this case made a profit by making cards using a portrait of a baseball player without any permission. The court described the right of publicity as “the right to grant the exclusive privilege of publishing his picture.” In 1970, the concept of the right of publicity developed more. “Uhlaender v. Henricksen” is a case about the unauthorized appropriation of proprietary information of an athlete. This time, the court considered the fame of a person’s name gained as a result of her own efforts. Also, the court expressed that having such fame means that she has acquired property rights for her name and portrait. For this reason, the United States emphasizes the profitable aspect of the right of publicity and allows inheritance of it.


△ Baseball cards from ‘T’ company


 Similar to the United States, Japan has consistently granted the right of publicity under common law. The first judgement about the right of publicity in Japan is the “Mark A. Lester” case in 1976. Mark A. Lester is a popular English actor, and a Japanese company used the phrase “Mark A. Lester loves this product, too.” in their advertisement without permission. For this case, the Tokyo district court said, “Celebrities have the right to make a profit by signing exclusive contracts with their name and portrait.” All of these cases show that the discussions about the right of publicity are continuing, and the basis of judgements related to it has deepened as well.


 In Korea, the protection of the right of publicity started to be guaranteed by law this year. Article 2, Section 1 of the Unfair Competition Prevention and Trade Secret Protection Act stipulates that “an act of using another person’s trademark such as name, portrait, voice, or signature in an unfair way for commercial profits” is an unfair act of competition. This clause has been executed since June 8th. Before revising this law, there wasn’t any legal basis like a positive law or a customary law. In July 2014, there was a case ‘2013Ga-Hab32048 A Claim for Damages’ which was judged by Seoul Western district court. The judgement said, “The necessity of granting the new concept of rights called the rights of publicity is agreeable. However, a codified right cannot be explicitly found according to Section 185 of Civil Law.” This case shows that the right of publicity was not able to be protected before. Legalization of protection of the right of publicity is meaningful and helpful to improve civil rights. In fact, there have been many debates about protecting the right of publicity by granting independent rights to names and portraits for several years in Korea. Experts think that the reason why it takes so much time to establish a law for publicity is that the right of publicity is primarily for some celebrities, not for the general public. Therefore, the general public is not interested in publicity.




Media content such as K-pop music and TV series are a huge component of Korean society. Therefore, social debates about the right of publicity are essential. Discussions about content ethics are essential in a country that aspires to be world-famous for its media content. Besides, commercial advertisements are getting more important day by day in modern society. Violating others’ rights to make more effective advertisements must be outlawed. Every person should try hard to protect the right of publicity. Such effort will be the key to making our society fairer and more righteous.



76th Reporter • CHOI BO YOUN • invierno.y@kyonggi.ac.kr

78th Reporter • LEE HYEON SEO • zzhs00@naver.com

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