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Comparative Study of the
Right of Publicity
- United States & South Korea -
Stanley Kang
Skang@ipfirm.com
Suite 1400
2318 ...
2/19
1. Introduction of right of publicity
2. Right of publicity in the United States
3. Right of publicity in South Korea...
Introduction of right of publicity
• What is the Right of Publicity?
The right of an individual to control the use of
his ...
Introduction of right of publicity
-Doctrines Protecting “Publicity” Interests-
4/19
Statutory
Right of
Publicity
- name, ...
Right of publicity in the United States
5/19
Development of the Right to Privacy
The Right to Privacy
- Samuel D. Warren a...
Right of publicity in the United States
- Today the right of publicity is accepted by 28 states at common
law and 19 state...
Right of publicity in the United States
• Common Law Right of Publicity
– Elements:
1) Defendant’s use of plaintiff’s iden...
Right of publicity in the United States
• Common Law Right of Publicity
– Elements:
1) Defendant’s use of plaintiff’s iden...
Right of publicity in the United States
• Statutory Right of Publicity
– Cal. Civ. Code § 3344, protects a person's: name,...
Right of publicity in the United States
• Issues – Scope of the protection
– Who is protected?
– What is protected?
– Is i...
Right of publicity in South Korea
Korean legal society began to
theorize the concept of right of
publicity
1980
The Right ...
Right of publicity in South Korea
The concept of the "right of publicity" was firstly
introduced into the Korean courts wh...
Right of publicity in South Korea
The Seoul district court recognized the right based on customary law,
but held that the ...
Right of publicity in South Korea
The court rejected PSY’s the right of
publicity infringement claim by holding
that the t...
Right of publicity in South Korea
• The lower courts of Korea approved the right of publicity, as a
exclusive right.
• In ...
Right of publicity in South Korea
Discussions for legislation of the Right of Publicity is
currently being held at nationa...
Future Issues
• Jurisdiction Over Activities on the Internet
– If a website allows visitors to enter into contracts for th...
Future Issues
• Infringement of the Right of the Publicity can be
occurred internationally
- U.S. celebrity can consider b...
Q&A
19/19
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Comparative study of the right of publicity

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Comparative study of the right of publicity
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Comparative study of the right of publicity

  1. 1. Comparative Study of the Right of Publicity - United States & South Korea - Stanley Kang Skang@ipfirm.com Suite 1400 2318 Mill Road Alexandria VA 22314 Tel. (703) 684-1111 Fax. (703) 518-5499
  2. 2. 2/19 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
  3. 3. 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 3/19
  4. 4. Introduction of right of publicity -Doctrines Protecting “Publicity” Interests- 4/19 Statutory Right of Publicity - name, voice, signatures, photograph, or likeness - Common Law Right of “Identity” Publicity Unfair Competition Trademark
  5. 5. Right of publicity in the United States 5/19 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 rights Zacchini v. Scripps-Howard Broadcasting Co. 1977
  6. 6. 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 6/19
  7. 7. Right of publicity in the United States • 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; and 4) 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) 7/19
  8. 8. Right of publicity in the United States • 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; and 4) 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) 8/19
  9. 9. Right of publicity in the United States • 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.” 9/19
  10. 10. Right of publicity in the United States • Issues – Scope of the protection – Who is protected? – What is protected? – Is it transferable? – Right for the Deceased – Compensation for damage – Injunction 10/19
  11. 11. 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 11/19
  12. 12. Right of publicity in South Korea 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. 12/19
  13. 13. Right of publicity in South Korea 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 13/19
  14. 14. Right of publicity in South Korea The court rejected PSY’s the right of publicity infringement claim by holding that the toy does not resemble PSY. (2014) 14/19
  15. 15. 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. 115/19
  16. 16. Right of publicity in South Korea Discussions for legislation of the Right of Publicity is currently being held at national level 16/19
  17. 17. 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. 17/19 Customer in the United States PSY can bring a suit in the U.S. court!
  18. 18. 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 18/19 Advertisement in Korea ?
  19. 19. Q&A 19/19

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