On The Derivative Interests From The Right Of Personality

Personal indicia, such as the name or the portrait, are considered as the personality interests in our nation, and should be protected by personality rights. In tradition, the personality rights are defined as the right to protect spiritual interests. With the transformation of technology, society, and the economy, the personal indicia has become an important part of our daily life in the aspects of commercial advertisement and commercialization and other commercial behavior; therefore, the personal indicia also possess the property value, which belongs to the derivative interest of personality right. In order to correctly understand the related legal issues triggered by the commerical use of personal indicia, the following four items should be taken into consideration:A) determining the nature of such interest or right, B) pension for damages, C) the issue of transfer and heir, D) the defense of legel use. To resolve the above four issues, we must glue three aspects to seek for the legal system fit for our nation:the first is the development process of the major two genealogies of law; the second is the evaluation of the advantages and the shortcomings of our present legislation; the last one is the cases conducted in our courts concerning the issue of personal indicia. The value of property of personal indicia has become independent from the original right of privacy and become acknowledged as the right of publicity, which is a new type of property right with half a century's effort in America. Whereas in Germany, the value of personal indicia have been put into the rang of personal rights and protected by the right of claim (the damages, unjust right and the illegal management). The value of property in personal indicia had been affirmed to be inherited by the heir in the judgment of the two cases involving the famous star Marlene Dietrich. The judgments in the above two cases enlarge the system of protecting the personality after death and establish the dual content and the structure of it. In China, the court still keeps to the traditional definition of personal indicia, which result in the limitation of pension as compensation and other distortion of application. After the evaluation of legal systems of other nations, it is not difficult for us to conclude that no matter how the nations protect the derivative interests of the personality right in whatever form, the common feature is the analogy of copyright's constuction theory by which they protect. Taking all of the factors into consideration, the most fitful form for our nation is to choose the direct legel transplantation as far as in this paper. Hereby I will offer some details about how the right of publicity construct in our nation involving the constitution of the encroachment of right, the calculating method for damages and the plea about the encroachment of right.