The right of publicity in the global market: Is James Dean a living dead even in Korea?

摘要

Right of Publicity, which means the right to commercially use the name, likeness, etc. of a famous person, was recognized by a US court only half a century ago. However, the scope of protection of this right has been expanding at a very fast pace. The Right of Publicity is certainly an American right which has its roots in American tradition and culture. The US entertainment industry is controlling the entire world market, and the walls of time and space in the Right of Publicity market have been torn down by the phenomenal dissemination of the Internet, so that the world's entertainment industry is fast being restructured as a single market with the United States taking the central role. Unlike the case where the right is discussed only within the United States, the argument that the American value and tradition that is transformed into a property right should be given a strong protection even in other countries as in the United States, is encountering very strong resistance in other countries from a global market perspective. Unlike other intellectual property rights such as patent, trademark and copyright, the Right of Publicity includes characteristics of "cultural commons" by nature. Nevertheless, the arguments raised in order to protect the US entertainment industry, which is a strong growth industry of the US (policy-based arguments), have been distorted as if they are based on the very nature of the right (doctrinal arguments). This dissertation separates out policy-based arguments in the existing theories from doctrinal arguments, principally in relation to the subjects of descendibility of the Right of Publicity and universality of the right, and will hopefully contribute in forming the international consensus in creating an international legal regime for the Right of Publicity in the future. Further, this dissertation analyzes the Right of Publicity in Korea, which is serving the role akin to the United States amidst the phenomenal development of the entertainment industry in the East Asian region in recent years, through a US-type framework. This analysis will hopefully also contribute to the creation of the international legal regime in the future.