comparative study of the right of publicity

Comparative Study of the Right of Publicity- United States & South Korea -

Stanley [email protected]

Suite 1400 2318 Mill Road

Alexandria VA 22314 Tel. (703) 684-1111 Fax. (703) 518-5499

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1. Introduction of right of publicity

2. Right of publicity in the United States

3. Right of publicity in South Korea

4. Future Issues

Contents

Introduction of right of publicity• What is the Right of Publicity?The right of an individual to control the use of

his or her name or image in advertising or other commercial enterprises

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Introduction of right of publicity-Doctrines Protecting “Publicity” Interests-

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StatutoryRight ofPublicity

- name, voice, signatures, photograph, or likeness -

Common Law Right of “Identity” Publicity Unfair

Competition

Trademark

Right of publicity in the United States

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Development of the Right to Privacy

The Right to Privacy - Samuel D. Warren and Louis D -

1890

1st Restatement of Torts recognized a right to be free from

“interference with privacy.”

1939

The right to privacy was firmly established, with over three

hundred cases filed

1950

Development of the Right of Publicity

The Right of Publicity is firstly judicially recognized

Haelan Lab. v. Topps Chewing Gum

1953

The Right of Publicity- Melville B. Nimmer -

1954

Privacy- William L. Prosser -

1960

U.S. Supreme Court distinguished the right of publicity

from other privacy rightsZacchini v. Scripps-Howard

Broadcasting Co.

1977

Right of publicity in the United States- Today the right of publicity is accepted by 28 states at common law and 19 states by statute.

Common law & Statutory law

Common law

Statutory law

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• Common Law Right of Publicity– Elements:

1) Defendant’s use of plaintiff’s identity;2) The appropriation of plaintiff’s name or likeness to defendant’s advantage or otherwise;3) Lack of consent; and4) Resulting injury.

See Eastwood v. Superior Court, 198 Cal. Rptr. 342 (Ct. App. 1983); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1398 (9th Cir. 1993)

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• Common Law Right of Publicity– Elements:

1) Defendant’s use of plaintiff’s identity;2) The appropriation of plaintiff’s name or likeness to defendant’s advantage or otherwise;3) Lack of consent; and4) Resulting injury.

See Eastwood v. Superior Court, 198 Cal. Rptr. 342 (Ct. App. 1983); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1398 (9th Cir. 1993)

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• Statutory Right of Publicity– Cal. Civ. Code § 3344, protects a person's: name, voice,

signature, photograph, and likeness.– “(a) Any person who knowingly uses another's name, voice,

signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.”

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• Issues – Scope of the protection– Who is protected?– What is protected?– Is it transferable?– Right for the Deceased– Compensation for damage– Injunction

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Right of publicity in South Korea

Korean legal society began to theorize the concept of right of

publicity

1980

The Right of Publicity is firstly appeared in the written judgment

- In re Whisoh Lee

1995

Issues related to the right of publicity were considered in over

hundred cases filed

2000~

The right of publicity is neither enacted in statute nor ruling from the Supreme Court.

The right of publicity is recognized in 16 cases filed.

The right of publicity is not recognized in 17 cases filed.

2012~ 2014

The legal concept of right of publicity is relatively new one in

South Korea

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The concept of the "right of publicity" was firstly introduced into the Korean courts when a Korean manufacturer's trademark of "James Dean" was disputed by the heirs of James Dean.

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The Seoul district court recognized the right based on customary law, but held that the right cannot be inherited.

1997 – In re James Dean I

The Patent Court of Korea held that the right of publicity can be inherited, transferred, and entrusted.

1998 – In re James Dean II

The Seoul district court held that the right of publicity can be inherited, but the court held that the right must be used before James Dean died.

1999 – In re James Dean III

The Seoul district court held that the court may not admit the plaintiff’s claim without enacted statutory laws regarding the right of publicity.

2000 – In re James Dean IV

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The court rejected PSY’s the right of publicity infringement claim by holding that the toy does not resemble PSY. (2014)

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https://youtu.be/C52xF30nV3I

Right of publicity in South Korea• The lower courts of Korea approved the right of publicity, as a exclusive

right.

• In 2013, the Seoul Central District Court, and, in 2014, the Seoul Western District Court held that the claim based on the Right of Publicity cannot be admitted as long as there is no statutory law regarding the Right of Publicity, even there is a need of recognizing the Right of Publicity.

• In 2014, the Seoul Central District Court held that the claim based on the Right of Publicity is admitted since there is a need of protecting a commercial interest created by a celebrity’s activity, even there is no statutory law yet.

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Discussions for legislation of the Right of Publicity is currently being held at national level

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Future Issues• Jurisdiction Over Activities on the Internet

– If a website allows visitors to enter into contracts for the purchase of goods or services without requiring the performance of some additional non-internet activity, the operator of the website can be sued in a foreign jurisdiction.

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Customer in the United States

PSY can bring a suit in the U.S. court!

Future Issues• Infringement of the Right of the Publicity can be

occurred internationally- U.S. celebrity can consider bring a suit against foreign company who infringed the right of publicity

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Q&A

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