Research On The Commercial Exploitation Of Personality Characteristics

The phrase “personality characteristics” epitomizes the external image of identifiablenatural person, and the aim of the general commercial exploitation of “personalitycharacteristics” is to increase the economic benefits, by the virtue of the propagation of“personality characteristics” to help selling products or services. Although the commercialexploitation of personality characteristics is expanding around commercial value, there arelots of cases in which personality interest during the process of commercial exploitation hasbeen infracted. Moreover, this sort of commercial value which connected with the personalitycharacteristics can hardly been cut off the personal benefit, so this thesis employed a dualperspective review of personality interests and commercial interests to analyze the problem ofcommercial exploitation. Because of commercial interests appertained on personalitycharacteristics is in the midst of traditional personality rights and property rights, this sort ofthe special status made it became the new problem of Public Law Research, also the keynoteof this thesis. The understanding of the relationships of the property interests and thepersonality interests lies in personality characteristics, while property interests understandingof the relationship of the property interests of the personality characteristics is essential toadopt positioning and protection mode. This thesis focused on the problem of the personalitycharacteristics of commercial exploitation, used the logical clues to ask questions and thensolved them, it adopted comparative research methods as spindle, in efforts to deepen theunderstanding of the personality characteristic personality interests and property interests, andthen found answers to the current system, finally put forward suggestions for improvement, inparticular, the author tried to provide a legal basis for the protection of property interests ofthe personality characteristics.Divided into three parts, this thesis includes seven chapters except the introduction. Thefirst part (Chapters I and II) is basic research, including the basic problems of personalitycharacteristics of commercial exploitation and legitimate grounds of the property interests protected of personality traits; The second part (Chapter III, Chapters IV and V) is theresearch part, about the unfair competition mode, the mode of privacy and publicity rights,general personal right mode; Part III (Chapters VI and VII) is on the basis a comparativestudy to understand the current situation in China under the topic of personality characteristicsof commercial utilization and to propose solutions to solve problem.Chapter One is discussing the main issues of commercial exploitation of personalitycharacteristics. Nowadays, domestic theory research lacks of consensus on basicunderstanding of the commercial use of legal personality characteristic, the full text of thestudy on term selection, concept definition, the type of analysis and involved legal issues andother aspects are also the basic points of this thesis. First, this chapter starting from thewidespread social phenomena of “represent” and “been represented”, arranging andcomparing domestic scholars’ terms of such phenomena, adopting semantic interpretation tosynthesize the nature of legal phenomena, and choose the phrase of “personalitycharacteristics of commercial exploitation”. Second, on the basis of understanding theconnotation and denotation of “personality characteristics”“commercial exploitation” and“personality characteristics of commercial exploitation”, the chapter focused on analyzingpersonality characteristics of commercial exploitation. The commercial exploitation ofpersonality characteristics upcoming natural person identifiable individual signs used aspublicity or promotion of products or services. The paper selected the following three criteriatypes of analysis:1. to take advantage of the standard commercial utilization of personalitycharacteristics reflect the natural person product support use of the support orrecommendation to support use of the attitude and the mere mention of the personalitycharacteristics of natural persons authorized;2.by a standard that whether the wills of theexploitation of personality characteristics obtained can be divided into usage withunauthorized consent and without unauthorized consent.3.another way of division whichmight not be so comprehensive but very helpful in understanding the nature is based on thenature of the interests involved in the personality characteristics of commercial exploitation isdivided into commercial utilization of personality characteristics:(1) violating personality characteristics of all property interests of commercial exploitation at the same time.(2)violating the commercial exploitation only.(3) only involves the violation of personality traitsof the spiritual interests against commercial exploitation. Moreover, the author made aconcrete understanding of personality characteristics of commercial interests-personality,interests and property interests of the general understanding and for personality traitscommercialized using specific understanding. Finally, it analyzed the commercial exploitationof the personality characteristics involved basic legal issues. The thesis aimed is theprotection of the personality interests with the interests of property involved in thecommercial exploitation of the personality characteristics. And the protection of propertyinterests is key point and difficult point, also the personality interests protected exposition.The second Chapter about the legitimate reason of protection of the property interests ofthe personality characteristics. This chapter is on the basis of the first chapter, on the basis ofthe personality characteristics of the property interests protected-justifying reason to dopre-introduction. Labor theory of allocation efficiency theory, Kant’s theory of property,personality autonomy theory is academic research highlighted the legitimate reason.1. thelabor theory. Labor theories of value, to prevent unjust enrichment theory, stimulus theory areall from Locke’s labor theory. In addition to the labor theory of value from outside theproperty interests of rationality of the internal argument personality characteristics, otherdoctrines are to be demonstrated from the perspective of external demand (social needs). AsLocke’s labor theory based on the theory of unjust enrichment, the labor theory of value andeconomic stimulus theory, are more or less the legitimacy of the basis of the personalitycharacteristics of property interests focus on labor. The theory of unjust enrichment oppositeemphasized not pay an employee may not enjoy the rights; labor theory of value is a positiveemphasis on pay laborers shall enjoy rights; stimulus theory stressed out to increase thewealth of society consider active labor rights stimulate rights. They overestimate the role ofthe individual in the economic value of personality characteristics, gave this as the basis forthe establishment of the system caused many difficulties.2. the allocation efficiency theory nolonger depends on Locke’s labor theory, but its weakness is very similar to the stimulus theory, the first in a non-confrontational and non-exhaustible personality traits on the premise cannotgive convincing answers.3, there’s something in common with Kant’s theory of property andpersonality autonomy theories: that both the interests of the property on the personalitycharacteristics and personality interests in Kant’s theory of property connected to the property,and freedom, personality.4. In contrast, the theory of personality autonomy does not need totangle with in the issue of labor rights and whether the value of the property to pay thepersonality characteristics, personality characteristics can also avoid non-confrontational andnon-exhaustible character.The third chapter describes the unfair competition mode in United Kingdom, Australiaand Canada, Quebec. Unfair competition model firstly admits that the unauthorizedcommercial use of another person’s personality makes it an infringement, and secondly admitsthat the infringement of the right to property has been made. Such property rights incounterfeit system are interpreted as a goodwill property rights under the misappropriationtheory to explain the property rights. Compared with traditional counterfeit theory which isnot quite suitable for local conditions, a new counterfeit theory has been established,personality traits for commercial exploitation in counterfeit system despite of being limitheavily, there are still substantial soil system background, thus counterfeiting is still unfaircompetition mode. To be true, personality characteristics of commercial use still remains thecore system.The fourth chapter is about the subject of privacy and publicity mode in US. This chapterbegan along the main line of the historical development, introduced innovative history ofAmerican common law system from privacy to publicity rights. Institutional basis beginningwith the libel system and the intellectual property system, and ultimately the formation of anindependent system of property rights protection of the interests of the pure spirit of thePrivacy generated from the jurisprudence of the protection of intellectual property to thecommon law to seek the protection of personality interests. Seeking personality characteristicsof the institutional basis of the property interests protected right of publicity generated by thecommon law privacy jurisprudence began the final formation of the public the right to protect the property interests of the personality characteristics independent privacy system. Privacyand property rights of independent each scoping to be clear, but the various entangled in themoment in both the history of the still embodied, for example, there are still some states thatthe infringement of the right of publicity is only one type of privacy infringement.The fifth chapter is about the German general personality right mode. Germany deemsgeneral personality right as a understructure right, it is not specific statutory protection ofpersonality interests and property interests through§823:1of the German Civil Code, in the"other rights". This chapter first introduced the provisions of the German Civil Codepertaining to personality rights and deficiencies introduction creation of general personal rightin the context of judicial law-making. Second, exposited the name rights and portrait rightsstatute provisions and applicable as well as the general personal right supplement for both.Finally, it introduced the general personal right in supplement of other aspects.The sixth chapter is about the problems of the personality characteristics of thecommercial utilization in China’s current situation. This chapter aims to explore this issue byjudicial way, and employs analysis method to classify and organize the case to draw such aconclusion: the judiciary profession because of lacking in systematic theoretical support,facing to a gradual increase of the personality characteristics without consent by thecommercial use of the case, they have to use a broader interpretation for present legislation,barely acknowledging the property interests, and personality characteristics, unconvincing butbold exploration of its infringement damage compensation computing, embodies condensedreasoning in a new rights common development process.The seventh chapter is about what options on the personality characteristics ofcommercial utilization for China. With the awareness of the problem in the first chapter, byunfair competition mode, privacy and publicity rights mode and a Comparative Study of theGerman general personality right mode, at least we can be learned there are two problems incommon: First, the comparative study objects in modern times the legal level showed greaterrespect for personality autonomy and human dignity, and continue to broaden the scope ofpersonality interests protected by law. Second, comparative study in the personality characteristics of property interests’ subject to protect the basic point is to reach a consensus.