A Study Of The Right Of Publicity In The View Of Intellectual Property Rights

The Right of Publicity which originated in the United States is a new type of right established and developed in judicial precedent. In our country, the Right of Publicity still belongs to a"should be"legal interests rather than a"to be"legal rights. Therefore, the rights of publicity of relative subjects are difficult to be fully and effectively protected. Especially in these years, as a continually development of the market economy, all kinds of behaviors of infringing on the Right of Publicity have been arisen in an endless stream. As a result, establishing and perfecting the legal protection system of the Right of Publicity as soon as possible have become an extremely urgency. At the same time, it is also the need of harmonious society. Based on the clarification of concept feature to the Right of Publicity, the essential attribute of the Right of Publicity, this thesis, combines China's legal system on the basis of analysis and comparison on conservation status of the Right of Publicity, has put forward an suggestion on perfection of the legal protection system of the Right of Publicity with a core of Intellectual Property Law.This thesis is about thirty thousand words. Except the introduction, there are four parts in this article.The first part gives an overview of the Right of Publicity. According to a comparative analysis of the Right of Publicity in the United States, Japan and the World Intellectual Property Organization (WIPO), legal attributes of the Right of Publicity have been concluded and extracted, hence the concept and features of the Right of Publicity have been clarified. The substance of the Right of Publicity lies not only in the commercial use of real figure image and virtual character image with certain influence and attraction but also lies in the transfer of the attractive and influential images to a commercial field to have effect on potential consumers. Therefore, the author defines the Right of Publicity as: a civil subject conducts a commercial use and enjoys the right of profits to his own real figure image and virtual character image with certain influence and attraction. After that, this article has introduced the evolution of legal protection of the Right of Publicity so as to make further inquiry to the essential characteristics of the Right of Publicity.The second part is mainly on describing the existing condition analysis of the legal protection of the Right of Publicity. This part aims at the analysis and comparison of the protection status and existing problems of the Right of Publicity under the Basic Civil Law, Anti-unfair Competition Law and Intellectual Property Law for pointing out the deficiency of the current Right of Publicity and make it clear that the perfection of the legal protection system of the Right of Publicity with a core of the Intellectual Property Law is necessary.The third part concerns on the assessment on theoretical basis of the Right of Publicity under the protection of the Intellectual Property Law, that is,"theory on fruit of labor","theory on consumer protection"and"theory on incentive to copyrights". Those theories have their own merits and faults in the protection of civil subjects. No matter if the obligee been rewarded by their labor work, or the protection of consumers right has been taken into consideration, or the obligee was encouraged to create more social material well-being and intellectual treasure, the Right of Publicity has attached much importance recently. The existing of Right of Publicity represents the interest value and justice value of law. Law neither create or invent interest, it makes a choice in social benefit-based relationships, it admits or refuses some certain one, and make a evaluation of the importance of various interests and provides the coordination in conflicts a criterion as well to improve the unfair pattern and realize every one's benefit.It is an action that against social justice that the infringing party makes use of others'image without any paying. Law rules this situation and normalizes and clears the Right of Publicity system to offer obligee an institutional guarantee of their benefit. Besides, law enforcement agencies publish the illegal actions and compensate the obligee by law which bring about the justice and achieve the justness of law. The obligee originally enjoys the rights to his image associating with commercial values. Any use of his image associating with commercial values without permission of the obligee is an infringement act. And the obligee have right to pursue the liability of infringer. With the feature analysis of the Right of Publicity, the author considers the best choice is that the Right of Publicity shall be bought into the category of Intellectual Property Law and be protected under the current legal system. The last part elaborates on how to perfect the legal protection of the Right of Publicity with a core of the Intellectual Property Law. 1) Expand the range of copyright protecting law; (2) Add the Right of Publicity to copyright and property right; (3) Expand the interpretation of copyright law, clear that image of the commercialization and utilization of works are works related to the use of means; (4) Formulate the standard of compensation for the obligee who suffer infringement behavior, make sure they will receive a reasonable compensation. In addition, the Right of Publicity of Trade-mark ACT protection law should be perfect: (1) simplify procedures of trademark registration; (2) guard against cyber squatting, protect the image of the registered trademark; (3) reduce the standard trade mark registration; (4) establish defensive trademark system. Last but not least, improve the Anti-Unfair Competition Law: (1) expand the explanation to the adjustment of the main area of Anti-Unfair Competition Law; (2) increase general terms, to expand the scope of unfair competition; (3) Rebuild the implementing agencies. It launches a discussion with regard to Copyright Law, Trademark Law and Anti-unfair Competition Law, and then proposes practical legal protection measures to the Right of Publicity to further perfect the Right of Publicity to safeguard our legal rights.