A Preliminary Study On The Right Of Publicity Of Natural Person

Economic development leads to the burst of a large number of related industrial and in a market economy environment, almost every item can be labeled as merchandise. Commercial use of famous people's names and images can be seen everywhere. Celebrity portraits advertising disputes are becoming a hot issue. However, the existing Chinese civil law system does not give a positive response to this issue. The existing personality right law or proprietary law has shown unsuited to this problem. The portraits market of natural person, especially for celebrities is in particular disorder. Natural person's interests, the business interests and public interests have not been effectively protected. Therefore, clarification of this right in the legislation process and subsequent protection is an urgent issue. In this context, a detailed survey of the legislation and practice of the advanced countries such as United States for the protection of personal image in the commercial exploitation become very important. In this paper, the authors use the system and comparative study way, use issues raised in the case as a starting point for analysis of the defect of the existing laws to protect the natural person's Right of Publicity. The author researches the USA's legal attributes of the Right of Publicity, the content of legal relations, the tort protection and restriction, and the protection of the right of the publicity of the decedent. Through analyzing the background of the birth of this right and comparing with Chinese reality, the author points out that in our country the regulation about the natural person's Right of Publicity should be established. In the end, the author put forward of her idea of how to establish the system of the natural person's Right of Publicity.This thesis is divided into seven parts.The first chapter introduces the concept of the Right of Publicity of natural person. On the basis of analyzing the three kind of typical cases, the origination of the United States' Right of Publicity are presented. The Right of Publicity was evolved from the privacy right when privacy law can not satisfy the requirement of the social development. The natural person's Right of Publicity is such a right that natural person can make benefit by control the business use of its own identified characteristic such as name and image.The second chapter is one of the key elements in this paper. The author analyzes the existing legal system in China to figure out what kind of protection it can provide against the Right of Publicity of natural person now. It can be concluded that this kind of protection in fact is a cross-protection from the aspects of civil law, intellectual property law and anti-unfair competition law. Also legal loophole and competing occurred in this kind of protection. Then the necessity and feasibility of the establishment of such a Natural Person's Right of Publicity system in China has been discussed in depth. Since China's existing laws do not provide sufficient legal protection for the commercial utilization of Right of Publicity of natural person, the author calls for the establishment of an independent legal right for the Right of Publicity of natural personThe third chapter starts from the analyzing of the legal attributes of the natural person's Right of Publicity. Then the four existing academic perspective about the nature of the Right of Publicity of natural person are outlined. They are the new personality right, the commercial rights of the personality right, the new intellectual property and the intangible proprietary right. It is quite obvious that the natural person's Right of Publicity and personality rights are closely linked. However the new personality right theory and the commercial rights of personality right theory in nature lack of the elaborate logic thus confuse the limits between the personality right and the proprietary rights. Including natural person's Right of Publicity into the intellectual property rights system is also not a good idea, because such practices would lead to unlimited expansion of intellectual property rights system, which is a misnomer of the word "Intellectual". In one word, natural person's Right of Publicity should be an intangible property right that been derived from the traditional personality rights.The fourth chapter analyzes the legal relations exiting in the Right of Publicity of natural person. Its subject includes, but not limited to, celebrities. It is a natural right and all natural persons are entitled to this right. Also a main classification of different types of subjects is introduced alone with which kind of subject corresponding to which kind of right. Then the author analyzes the relationship between the object and the subject of the Right of Publicity, and points out that name and image is only the subject of this right and not the object. The object of this right is the overall image of natural person. The content of the Right of Publicity contains the positive right and the negative right. As an exclusive right, the obligee of Right of Publicity can make use of various kinds of its own image characteristics by personal or grant others to do it, in order to obtain direct interests or transfer fee and/or license fee. The Right of Publicity of natural person also can be inherited. At the same time the obligee has the fight to forbid others from making use of all kinds of his own images without permission.In the fifth chapter, the author analyzed the infringement protection and infringement contradictions of the Right of Publicity of natural person. The Right of Publicity of natural person should be under the protection of the tort law and apply the no-fault liability doctrine to strengthen the protection of the right holder. Considering in ordinary circumstances, the right holder is always in weak status when facing tortuous behaviors. The liability mode of tort includes stopping tortuous actions and paying for the loss. This paper doesn't claim to apply the spiritual damages. Moreover, the Right of Publicity of natural person expires 50 years after that person's death, which is enlightened from the deadline of the copyright. The Right of Publicity of natural person is an absolutely right, but not a monopolized right. Based on the balance of benefits, the author lists four kinds of infringement contradictions: because of the agreement of victims, non-commercial using, incidental using, and right exhaustion.The sixth chapter tried to construct a legal system of the Right of Publicity of the natural person. First, the legislation practice of the Right of Publicity of the countries such as the United States, Britain, Japan and Germany are introduced. Based on the laws of the United States, the regulation about the law relationship of natural person has been discussed. Through comparison, the road for China's corresponding regulation has been paved. In sectionâ…¡, the author put forward her own ideas, established this system from seven aspects. It is the alternative of the legal content, the determination of the concept defined in the law, the determination of the attributes defined in the law, legal characteristics, the establish of the legal relations, the responsible for the infringement, and the legal protection related issues.In the seventh part of discussion, the author uses the Right of Publicity regulation re-analyze the cases mentioned in the beginning of this thesis. It is been demonstrated here that the import of the Right of Publicity of natural person can resolve the similar problems both in theory and practice.The last part summarizes the research conducted in this paper and leads to the conclusion of the compulsoriness and urgency of the implementation of symmetrical protection of the Right of Publicity for the natural person. The author will continue researching on this field more deeply.