The Study On The Right Of Publicity

Personal indicia which has identification, such as one’s name or portrait, belongs to the right of personality in our existing civil law. The traditional right of personality mainly focuses on the protection of mental interests, while ignoring the property interests. However, with the continuous development of market economy, the commercial appropriation of one’s name, portrait and other personal indicia has been raising. At the same time, it appears tort disputes that enterprises appropriate one’s personal indicia without his or her consent. Through the analysis of relevant cases in the judicial practice in our country, we found that the infringement of personality right involves not only the mental interests, but also the property interests. In view of the existing legislation and relevant judicial explanation in our country, ambiguity of the-provisions that protect the property interests of the right of personality results in difficulty in law application, different courts or the same court make different decisions as to similar cases. In order to apply the law accurately in the judicial practice, and protect the property interests of the right of personality better, it is necessary to perfect the existing provisions. The right of publicity is developed from the right of privacy in America, as a property right, it protects the property interests on one’s name, portrait and other personal indicia. The system of the right of publicity has a history of more than60years, the United States has an extensive and in-depth research both on theoretical and practical, now, it has developed into a relatively mature system. Therefore, it is worthwhile to study. This paper will be divided into five parts. The first part mainly about an overview of the right of publicity system, it introduces the concept, characteristics, scope of protection of the right of publicity and the differences to the relevant rights. The right of publicity refers to a right that a natural person can control and profit from the commercial appropriation of his or her personal indicia, like name and portrait. Since it has been developed from the right of privacy, the object that it protects is of personal attributes. Also, as a property right, the right of publicity is alienable and inheritable. The second part mainly introduces the historical development of the right of publicity system, including the background of development and historical evolution. The development of the society (such as the development of advertising and media, the change of social ideology) and the legal lag (such as the weaknesses of the right of privacy, unfair competition and contract theory) have given rise to this right. The third part is the analysis of the legitimacy of the right of publicity. Mainly from the angle of value, economics, consumer protection and personality theory to discusses, and comes to the conclusion that although the first three are reasonable to some extent, the personality theory is more suitable as the legitimate basis of the right of publicity. The fourth part mainly introduces the constitutive requirements and legal effects of the infringement on the right of publicity. In America, it is universal to adopt no-fault liability imputation principle, and the punitive damages will be considered when the actor behaves with intentional tort. The commercial appropriation is deemed as the key factor of the infringement. There are two relief ways, including damages and injunction relief. The calculation standard of damages contains fair market value, unjust enrichment, and potential future earnings. Some states also require a minimum compensation. Injunction relief is relatively simple, can be divided into temporary injunction and permanent injunction.The fifth part introduces the problems of the existing legislation and judicial practice in our country, and the enlightenment that the right of publicity brings to us. Through the analysis of the right of publicity, we should perfect the existing legislation on the basis of acknowledging that personal indicia has the property interests. First of all, perfect the relevant provisions of the right of personality:firstly, increase the new type of concrete right of personality (e.g., the right of sound and the right of image); secondly, increase the permitted power of the right of name, and clear the permitted power of the right of portrait. And then, clear the relief to the infringement on the property interests of the right of personality in tort liability law, mainly including property damages and cease the infringement. For the determination of damage compensation, celebrity may refer to the fee that he licenses before or other person whose position is equal to him. As for non-celebrity, he can determine a minimum compensation according to the "product sales" of the infringer. In our country, the punitive compensation should not be adopted.