The Protection Of Interests Of The Death’s Personal Identity In Commercial Use

This paper discusses that in the commercial use of the death’ s personal identity,not only the spiritual interests of the death’ s relatives exists, but also the propertyinterests based on the commercial use of the death’ s personal identity such as nameand portrait. On this base, according to the dichotomy of interests, it is concludedthat property interests should be equal but differently safeguarded, and finally thepaper deals with the pattern and concrete measures to strengthen the protection of theproperty interests in the commercial use of the death’ s personal identity.The paper expounds from the following three parts:Introducing from a series of disputed cases in which Lu Xun’s personal identitysuch as name and portrait was impaired, the first part demonstrates that there doesexist a large number of phenomenon that the death’ s personal identity is incommercial use. Through the analysis of theoretical research, legislative and judicialstatus quo on the issue, the paper has given insight into the problems in protectingproperty interest of the death’ s personal identity in commercial use in our country.The second part focuses on analyzing the basic theory of the death’s personalidentity in commercial use. By investigating the concepts and relationships betweenthe right of personality, personality interests and personal identity, it is concluded thatthe object of commercial use is the personal identification of the death’ s name, portrait, sound and privacy, which are identifiable and can be shown by thematerialized form outside body. The commercial use of the death’s personal identitycan be realized by means of transfer and succession. It is necessary to protect theinterests of personal identity in commercial use, not only because of the practicalneeds, but also the respect for the deceased personality, furthermore, it is alsobeneficial for protecting the interests of the death’ s relatives, maintaining good socialorder and promoting social harmony.The third part analyzes three typical patterns of protecting personal identity incommercial use, including that the United States adopts dual rights protection ofrights of privacy and publicity, Britain adopts the indirect pattern for the protection ofintellectual property, and Germany takes the pattern of unified right. Throughanalyzing the significance of dual rights protection pattern and unified rightsprotection pattern to our country, the paper draws the conclusion that under theexisting legal tradition and system, our country should draw lessons from Germanunified right protection pattern, under which handling the problems of commercial useof personal identity is more rational and feasible. Then, this part analyzes the scope ofprotection, the requested principals, the protection period and remedies in detail underthe three kinds of protection patterns for the commercial use of the death’ s personalidentity. Finally, the author holds that our country’s legislation should firstly admitthat the property interest in commercial use of the death’ s personal identity can beinherited, then pay attention to balance the interests of all parties and provideadequate economic relief for the recipients.