On Protection Of Financial Interests In The Commercial Appropriation Of Characteristics Of Personality

Characteristics of personality,such as one's name or image,falls within the range of right of personality in our existing civil law,and is deemed as interest in dignity which is contrary to the interest in property. However,the commercial appropriation of characteristics of personality has been raising ,resulting from the promotation of modern commerce and the development of media technology,I am sure that everyone is familiar with the advertisement of product,which refer to the commercial appropriation of celebrity's image .with the famousness,businessmen make their product more widespread,while the celebrities get financially rewarding. In this circumstances,I collect thirty-five cases about the commercial appropriation of image or name from the four corners of our country.After analysising carefully,I find that, courts are unconsistent with each other on likely case,the reasoning of judgement is as well as rich in variety,for the absence of legal ground and academic support.At the same time,we can also conclude that, voluntarily or unvoluntarily, the judgments have tend to recognize the property interest in characteristids of personality in practice.On the other hand ,the lack of concerning theory and legal provision is anxous.For those reason,this article present the general right of personality in German and the public right in American on a comparative perspectives,and attempt to contribute to the theory and rule of the commercial appropriation of characteristics of personality in China.The right of publicity in American is established by Justice Frank in Haelan Laboratories Inc.v.Topps Chewing Gum Inc.,in 1953,and is ariginated and developed from privacy doctrine.the right of privacy is the right to be let alone and protect the interests in spirit.Because of this ,the right of privacy is short of concerns on the finicial interest in characteristics of personality,Subsquently,the right of publicity appeared on demand.the right of publicity is a kind of itellectual property,grounded on the Lock's Labor Theory.So,it is transible and heritable.Generally,all of natual person are entitled to the right of pubulicity.The object of the right of publicity has being expansing in case law, Initially ,it just contained images and names,and currently,it includes everything identifiable ,such as nickname, posture,from which somone can associatie special one.where we try to determine something is the object of the right of publicity,it is necessary to view its identifiability and associability.Simultaneously,the limit from First Amendment Constitutional law accompanied with the emergement and development of the right of publicity.Cotemporaneously,the right of pubulicity, which is basised on the Lock's Labor Theory, was challenged.The most obvious difficulty is ,how to control the perpetual expansion of the object of the riht of publicity,and accoding to the Lock's Labor Theory,whether the protection of uncelebrities'public right is justice.Based on said difficulty,some of scholars in American take a broad view and concentrated on the general right of personality in German which is ground on the the individual's autonomous right to self-definition,and attempt to get rid of current trouble.Compared to the right of publicity,the general right of personality in German is less flourishing,but eqully reflects the indispensable role of court.In 1954,the Federal Supreme Court took the final step in developing an overall protection of personality by recognizing a gerneral right of personality.As a result,we cannot understand the gerneral right of personality unless appealing to special case.It is generally acknowledged that, the finacial interests in the commercial appropriation of images or names is protected in German.Moreover,German is conservative in the recognization of finacial interestes in personality than their companion,for the restrictation of the old theory that right of personality is contrary to the right of property.General right of personality ,which is grounded on the the individual's autonomous right to self-definition ,is within the limits of the right of personality.It's purpose is to prevent dignity and freedom from being infringed.Thence,the application of the general right of personality remains typically restricted to features inherent in the individual,on the other side,it also lead to a new problem that how to explain the transibility of the finicial inerestes in characteristics of personality.In this paper,I set forth the right of publicity in American and the general right of personality in German on a comparaative analysis,and claim that we should establish our own rule to recognize and protect the finacial interests in characteristics of personality,just based on the individual's autonomous right to self-definition.