Comparative study of the right of publicity US and KR

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. 2/19
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Right of publicity in South Korea
Discussions for legislation of the Right of Publicity is
currently being held at national level
16/19

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. 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. Q&A
19/19