The Reference Of The Publicity Right And The Relevant Justice System In American Law

Right of publicity can be said to be the most active field of the law over the past 50 years, which is one of the property rights that derive from the private right. The object of publicity right only covered narrow scope and protected the portrait of right subject when it was established. It aims at guaranteeing the self-control of the natural person’s personality out of interference. With the admission to the right of publicity from a growing number of states, the protection of legal interests has been understood widely and well-protected.Part one-the generation and confirmation of publicity right in America. California first confirmed the conception of publicity right in the case and the scholar Nimmer refined the connotation in his book. There are three aspects of its jurisprudence origin, which concluded Locke’s Labor theory, Hegel’spersonality theory and two visual angles in Economics of Law. It concluded the necessity and inevitability from the differences between the publicity right and privacy right and also between the publicity right and intellectual property. The right of publicity reflects people’s economic freedom and comprehensive development in the future, and also manifests the right of self-control of the personality.Part two-the development of right of publicity from commom law. The commom law of the United States made a major boost in promoting the scope of subject and object of publicity right. The right of publicity, which is one of the property rights, also has a right boundary and the corresponding adversary system when as the basis of the claims. The press freedom and expression freedom which confirmed in The First Amendment were basis of defensing publicity right which were often raised by defendants. In the process of advancing the right of publicity by jurisprudence, a number of effective measurement criteria were retained. The criteria of image value refers to measuring the value of protecting and infringement from the right of publicity in the process of fact finding. Transformative criteria refers to measuring whether others add enough individual creativity to the use of personality traits. Direct correspondence refers to measuring whether the statement makes audience associate the subject with the relevant personality traits. Having enough conference may constitute the illegal use of others’ personality traits. And extra publicity refers that there has been no infringement if the information of name, portrait and voice of subject are in the well-known scope. All the factors should be combined with other standards to get the most objective affirmation.Part three-three controversial details in the case law of the publicity right. There are some confused application fields caused by different standards in different states since the development of right of publicity in United States. First of all, the author suggests that the purpose for profit can’t be the boundary of the publicity right and constitutional rights. Secondly, the relevant applications of law between publicity right and intellectual property remain to be resolved. At last, we could cast around the solutions to the improvement by combining artistic expression fields with jurisprudence which takes artistic expression fields as main body.Part four-the significance to China’s juridical practice of publicity right. There are not sufficient relevant legal basis about protecting commercial exploitation of personality. The law protects publicity right based on relevant provisions of personal right or take intellectual property and anti-unfair competition law as the supplementary applications. However, it is still in the stage of development, which is a bit premature that the right of publicity is not appropriate to carry out the law transplant in China. But we could develop the understandings of personality legal interests to confirm abundant property values with an open view under the new situation. With the reference to the valuable practical experience accumulated in the common law, it’s helpful to take factors of conversion reference and direct correspondence and also to draw a border by using constitutional rights such as expression freedom. The most appropriate approach is to expand the connotations of relevant property interests of personality rights under the present situation, thus protecting publicity right of subject well.