The Right Of Publicity

In traditional theory of civil law, the identities, such as the name, image, sound and so on, are the spiritual interest belonging to humans. However, the merchandization of personal identities is expanding in modern society and the pecuniary interest is increasing correspondingly. The interest alters how people treat others who explore and use their identities commercially and disputes springs up. How to protect personal identities against being used commercially without authority comes into light. The thesis consists of three parts.The first chapter introduces the right of publicity and discusses the jurisprudent foundation of the right of publicity.The thesis discusses how to protect merchandised personal identities based on the institution of the right of publicity in America. There are several theories of the right of publicity: labor theory, economic stimulating theory, undue gain theory, rent dissipation theory, protecting consumer theory and moral theory.The labor theory believes that everyone is entitled to have the fruit of their own labor. The celebrities make efforts to be famous, therefore, they are entitled to have the pecuniary interest of merchandizaiton of their identities. But the limitation of labor theory lies on that many people become famous not because they make an effort and being famous is the consequence of interaction of celebrities themselves and others in the society which means labor is not the only factor.The economic stimulating theory believes that the appropriate protection of fruits of labor leads people to invest and produce further and protecting the interest of personal identities can enhance the efficiency. But the economic stimulating is not the only reason people want to be famous and utility of others does not definitely lower the efficiency. Protecting consumer theory believes that the purpose of right of publicity is to protect consumer from being misled, but it does not explain the essence of the right which focuses on the control of and gain from personal identities.Rent dissipation theory comes from judicial practice which divides the torts into two types. One devalues the personal identities and the other does not, even increases the pecuniary value and the law does not protect the later one.Undue gain theory believes people gain undue profit by means of using others personal identities without authority, but it seems a kind of circular demonstration.Moral theory consists two types. According to Hegel, the property is the reflection of consciousness and a kind of tool, with which personality can be expressed. This opinion goes with the intellectual property theory which protects human's personality and identity. While according to Kant, people have right to control their own personality, and the property is the expansion of freedom. However, neither can explain the inheriting and transferring of the economic interest of personal identities.Chapter two analyzes some main problems of the institution of right of publicity, such as subject, object, content and range.In terms of subject, the focus is whether all the people have right of publicity. Although usually the personal identities of celebrities has more commercial value than that of ordinary people, it cannot infer that ordinary people's personal identities have no pecuniary value. Actually the utility itself proves that the personal identities have economic value.In terms of object, the dispute lies on whether the right of publicity should protect other identities that cannot express personality and the types of object to be protected. The right of publicity origins in right of privacy and fictitious images can be protected by other law, therefore, the object of right of publicity should be limited to merchandised personal identities, consisting of image and likeness, name and nickname, sound and the other identifiable objects, in American law there is non-copyright live performance included.In terms of content, the problem is which action infringes the right of publicity. The key is how to define the commercial use. Commercial use includes: use of identity in connection with commercial products, use of identity in ads for products; use of identity in media and use of identity in ads for media. When it comes to the non-copyright live performance it includes replay and imitation.The range of right of publicity is how to judge the identification of use of identity. Even if the identity used is not exactly the identity of plaintiff, as long as the plaintiff can be identified, the defendant infringes the right of publicity. However, there is difference between the identification of celebrities and ordinary people.Chapter three provides some suggestion for constructing institution of right of publicity in our country.Current law dealing with personality, such as laws on name, portrait, reputation and privacy, cannot solve disputes coming out; law dealing with property, intellectual property, and fair competition cannot, either. Therefore, introduction of right of publicity is an option.In order to connect right of publicity and current law, scholars provide following patterns: personal law pattern, intangible property law pattern, intellectual property law pattern and synthetical pattern.Personal identities has the closest relationship with personality, which is the most important reason why we put the right of publicity in personal law. However, the interest on personal identities is economic interest. To expand the connotation of personal interest is not appropriate.Intangible property law is an open institution and the personal identities can be one of its objects. But the compatibility is both the advantage and disadvantage, which makes the problem more blurMany scholars put the right of publicity into the merchandising right, then the field of intellectual property law. But the core of right of publicity is to protect the pecuniary value rather than creativity of human, which is the purpose of intellectual property law.Synthetical pattern is a contemporary method but if we want to protect personal identities more it is necessary to alter many current laws which means high cost of legislation and litigation.Nevertheless, none of these pattern is perfect. Probably putting right of publicity into intangible property law or intellectual property law is reasonable, because it is reasonable logically and comparatively simple to legislate.The right of publicity is the right of everyone to gain interest from the commercial use of their own personal identities. The subject is everyone and the object is personal identities, including name (real name, nickname, penname and so on), image (including likeness), sound and other identifiable personal identities. Only when plaintiff is identifiable from the commercial use, there is infringement.