Legal Empirical Research On Commercial Exploitation Of Personal Indicia

To merchandise personality indicia means to make use of one’s charm or attractiveness to promote sales.In China, this is some kind of social phenomenon other than a given civil right. There is no necessity to legislate the phenomenon and promote an individual legal right following the example of Publicity Right. Such kind of legislation can’t suit the current system of civil law. Along with the technical advances of media, especially, say, the popularization of internet, the use of personal symbols becomes more and more frequently as well as randomly. This phenomenon is familiar to most audience, with various kinds of manifestation, and keeping evolving new forms. Thanks to the developed market economy, innovative marketing mode, flexible forms of case law and leading institution of intellectual property, common law countries are the first to provide efficient protection and regulation on this phenomenon. Civil law countries hold a relatively conservative point of view. However, they are also exploring the general personality right system to provide summery protection. Where there is an interest, there is a conflict. That’s why we need regulation.The author used case research to induce several issues concerning commercial exploitation of personal indicia, and made preliminary comment on the said:the scope of the object, collective portrait, the commercial exploitation of the role in movies and television programs and the relation between reputation right and commercial exploitation of personal indicia. The said issues should be blamed to our misunderstanding on right of publicity confounding with the specific personal rights such as portrait right, name right and privacy right.Next, the author discussed the theory on commercial exploitation, made a distinction among personality, personality element and personal indicia. The author also discussed the category of personality interest, trying to clarify the relation between the dignity interest and property interest within personality. As for where the legitimacy is concerned, the author criticized the legitimacy basis of merchandising personal indicia, which is a premise for legal protection. Philosophy of natural law likes to resort to intuition and feeling, which seems too abstract and lacks precise reasoning. Legitimacy based on economics takes orders of utilitarianism, regarding the theory of efficiency and motivation as core ground of argument. Legal protection of merchandising personal indicia contributes to cut down transition cost, motivates people to creative more image values, such kind of legitimacy merely concentrates on the motivation of the outside rules, ignoring the inside limitation of human beings.Concerning the comparative law, the author concluded three typical modes of protection:tort law protection mode, personal right law protection mode and property law mode represented by intellectual property right system. In China, the protection of merchandising personal indicia scattered in tort law and personal right law, which is incomplete and far from enough. The author suggested we could draw lessons from the protection mode of German.The author selected merchandising interest on overlapping portrait as an example to discuss the interest distribution. In order to properly protect the merchandising interest on the collective image and the actor image embodied in a movie role, we should grasp the power of sales promotion in the personal image other than be enslaved by the pattern of manifestation. The so called collective portrait is a fault concept; the merchandising interest on a group photo reflects the property interest on the collective image. Under certain conditions can an actor enjoy the merchandising interest of the specific role which he played in a movie or a TV program. This kind of interest can’t be contained in the neighboring right which an actor can enjoy. The natural person model of the work also has the possibility to share the merchandising interest.Without limit, without free. In order to promote commercial exploitation of personal indicia and realize the win-win of both personal interest and social interest, we should clarify the conflicts between merchandising interest on personal indicia and other legal interests. The limitation exists in intellectual property right system can provides us sufficient materials to refer to. The author summarized the conflicts as follows:conflicts in the public domain, conflicts in the personal right law domain, conflicts in the property law domain and conflicts in the market regulation domain. The concrete limitations are:limitation of the scope of application, time limit, exhaustion of merchandising interest, fair use of one’s personal indicia and the duty of tolerance.