On The Protection Of The Right Of Publicity

With the development of the society, the progress of technology, the object of intellectual property protection is more and more diversified. However, the development of the society always walks in the front of the law because of the lag of the law, which leads to a problem that rights of the parties can’t get effective protection because there is lack of relevant legal provisions, especially the celebrity’s right always gets impinged. This paper starts from a case, through analyzes the focus problems of the case raises the right of publicity, introduces the origin of the right of publicity and its concept, subject, object and the identification of violations of the right of publicity. Finally, the author puts forward a bit idea on legislation of the right of publicity.This paper is divided into four parts, except the introduction and the conclusionThe first part of the paper is to introduce the case of jinlai Zhang suing Lan Gang online(Beijing) limited company. It analyzes the opinion of plaintiff and the defendant and the legal principle theory of law superior court and second- instance court, then this paper gets the focus problem of the case, that whether jinlai Zhang has the portrait right of the portrait of the Monkey King he played.The second part is to analyze the case. Firstly, the author makes a legal analysis on the focus of controversy of the case, discuss the portrait and portrait right meaning, explore the range of portrait right protection. It comes to a conclusion that jinlai Zhang has the portrait right of the portrait of the Monkey King he played. Then, the paper elaborates the reasons of the sentence which the superior court and the second- instance court have made. This paper believed the first-instance court’s point of view is too conservative, narrow and affirmed the practice of the second instance court.The third part is the results of the study. Firstly, It analyzes the deficiency of the existing laws and regulations(image rights, trademark rights, anti-unfair competition law) for natural image rights protection. Then, the paper introduces the origin of the right of publicity, concept, subject, object and the identification of violations of the right of publicity, on this basis, the author further analyzes how to solve the case using the right of publicity.The fourth part concerns my own ideas about legislation of the right of publicity. Firstly,the paper discussed whether or not we should create the right of publicity. It briefly introduces two views existing in academic circles: One is not necessary to create the right of publicity, the other is that the right of publicity should be established as soon as possible. I agree with the second view: we should create the right of publicity as soon as possible to meet the domestic and international situation. Then I put forward the ways to legislate. Firstly, we should make general provisions on the right of publicity in Intellectual property part of the Civil code, make it clear that the right of publicity is a kind of intellectual property rights, clear it’s private property attribute. Then make specific provisions on concept, object, content, tort relief and the limitations of the right of publicity in Intellectual property law. Finally, the author puts forward that the right of publicity can be specified in intellectual property law on these aspects: make clear the concept of the right of publicity, reasonably definite the object of the right, establish reasonable content of the right, establish infringement judgment standard and relief measures, improve the system of the limits of the right.