On Commercialized Personality Rights

The commercial utilization of personality has become a common phenomenon in nowadays society.The way to protect property interests of personality rights is the problem that should be solved.Two representative ways to protect personality rights has been established by American law and German law.Americans protect property interests of personality rights using the right of publicity,an independent property right,while Germans regard property interests as interests within personality rights.In the judicial practice of our country,the protection of the property interests of personality rights is affirmed,but the basis of the claim is unclear.The scope of damages is also difficult to determine.Scholars have made argument about the nature of commercialized personal:ity rights,each holds different opinions.This paper analyzes the nature and the position inside the theoretical system of rights.There are also relevant provisions on the property interests of personality rights in intellectual property law and the competition law.Concurrence of claims exists between civil law with intellectual property law and competition law.But neither intellectual property law nor competition law can fulfill the task of protecting the property interests of personality rights.Commercial personality rights remain civil rights.Whether the nature of personality right or property right is adopted,the protection of commercialized personality right can ultimately be achieved,and they both own some shortcomings.The civil law constructs the right theory centering on property,and the right of personality emerges with the opportunity of externalization of the subjectival elements.Combining the theory of rights and the development of personality rights,we should divide personality rights and property rights by whether the object is externalized from the subject.Because the object of the commercial personality right still contains personality elements,the obligee can not completely transfer the commercial personality right.In the infringement and relief of rights,commercial personality rights and personality factors are inseparable.Commercial personality right does not possess independent property right character.On the premise of maintaining the division of"personality right-property right",commercial personality right should be protected within the framework of personality right.The commercialized personality right should not be regarded as a specific personality right,not as a power of personality right,but as a classification of personality right.Personality rights can be divided into spiritual personality rights and commercial personality rights according to the types of interests.The right of spiritual personality has only spiritual interests,while the right of commercial personality has both spiritual and property interests.Commercialized personality rights have more powers than spiritual personality rights,such as limited right of disposition,power to profit from.Article 20 of the Tort Liability Law should be interpreted to protect the right of commercialized personality.Legislation should clarify the scope,permission and compensation for damages of the right of commercialized personality.