Transformative Use Under Works Involving The Right Of Publicity

With the development of network technology and self-media platforms,the use of other people’s images to create virtual characters and expression packages has become increasingly common.The economic value contained in the identity elements,such as celebrities’ portraits and names,has continued to increase.In this regard,the United States developed the concept of Right of Publicity,which refers to the property rights of individuals to control the commercial use of image elements such as their names,voices,and portraits.The development of image commercial value needs to rely on a certain form of work as a carrier,so there are often conflicts between Right of Publicity and Copyright.It is worth thinking whether we should completely protect the right of publicity or we should leave room for the public.Since my country’s current closed fair use system cannot provide open adjustment space for such conflict resolution,judges in my country’s judicial practice directly quote the "transformative use" when making judgments to determine which use are appropriate.Therefore,the "transformative use" standard developed by the US courts in practice has played an important role in clarifying the value relationship between right of publicity and freedom of expression.Learning from the mature theoretical system and experience of the United States will help to improve our country’s fair use system.However,because it is derived from the four elements of fair use,there is no cultural regulation,and the definition is non-deterministic,and there is still inconsistency in the application process.Therefore,sorting out the value attributes and application methods of "transformative use" is of great significance for establishing a better connection with the application in the judgment of fair use.Based on this,in order to further enhance the inherent value and function of the "transformative use" standard in works involving right of publicity,on the one hand,to enhance the flexibility of fair use judgment,it is necessary to clarify the status of the "transformative use" in the fair use system,and create a open regulation centered on conversion;on the other hand,to standardize the judicial judgments of "transformative use" and increase the auxiliary judgment standards.The article will start from the improvement of the "transformative use" standard for works involving right of publicity in our country,and expand from the following parts:The first chapter starts from typical domestic cases,summarizes the facts of the case,discusses the fair use issues involved in the case,and discusses the dilemma of the closed and rigid fair use system under our country’s current law,which cannot effectively resolve the conflict between merchandising right and copyright,including the problem of inconsistent criteria for determining conditions.The second chapter focuses on the legitimacy of applying the "transformative use" standard to judge fair use in works involving right of publicity.On the one hand,starting with the right of publicity system,discussing the theoretical support of the legitimacy of the right of publicity and copyright,and analyzing the conflicts of interest between them;on the other hand,starting from the origin and development of "transformative use",introduce the concept and classification of it,and then introduce the intrinsic value and functional attributes of "transformative use",demonstrating it has an important balancing effect.As the focus of this article,through sorting out the facts and main points of the judgment in several typical cases in the United States,then it summarizes the enlightenment of American judicial practice experience and analyzes how the standard is applied to solve the problem of inconsistency in interpretation.In addition,introducing the current situation of our country’s the application of "transformative use",for indicating that our country has the conditions to apply the standard.Finally,based on the mature theoretical system and judicial practice experience in the United States,it puts forward corresponding legislative suggestions for our country’s current situation,and puts forward its own opinions on enhancing the stability and flexibility of the application of the "transformative use" standard.