In this blog post, we will explain in simple terms the concept of publicity rights and the issues surrounding them, including the extent to which the use of celebrities’ names and likenesses is permitted.

The boundary between publicity rights and personality rights

Personality rights are rights recognized for the purpose of respecting the personal existence of human beings, and they have unique characteristics that cannot be separated from the rights holders. Typical examples of personality rights include the right to name, the right to portrait, and the right to reputation, which refer to the right of individuals to be protected from unauthorized infringement of their name, face, and social reputation by others.
In particular, due to the special nature of celebrities, who are the subject of high public interest, their names and portraits are frequently used in media reports and for personal purposes. However, such use can easily lead to infringement of personality rights, which often gives rise to legal issues.
However, this does not mean that personality rights take absolute precedence in all cases. Constitutional values such as freedom of expression and the right to know must also be respected, and therefore, use at a certain level must be socially acceptable. For example, when the names or portraits of celebrities are used in the context of media reports for the public interest, this is considered to be a public interest value that takes precedence over personality rights.
However, unlike this, using the name or image of a celebrity to advertise a product or inserting images that remind people of that person into a product to promote sales is different from private use or reporting. This is because such acts are not simply for the purpose of conveying information, but clearly intend to obtain direct economic benefits through the image or symbolism of the celebrity.
When the name or portrait of a celebrity, or other elements symbolizing that person, are used in products or services, this goes beyond mere “use” and functions as a marketing tool that effectively induces consumers to purchase. The profits generated by the commercial use of elements that symbolize the identity of another person are based on the efforts and reputation of that celebrity, and therefore, unauthorized use of such elements can be considered not only a violation of personality rights but also a violation of property rights.
The right of publicity stems from this concept. The right of publicity is the right to protect the property value of a name or portrait rather than the name or portrait itself. In other words, it guarantees that individuals can control the commercial use of their names or portraits and obtain economic benefits from them. In this respect, the right of publicity is clearly distinguished from personality rights.

Right of publicity, its introduction and controversy in Korean society

In Korea, since the concept of right of publicity was introduced from the United States in the 1980s, there have been various academic papers and legal discussions. In the United States, right of publicity is already recognized as a type of property right, and commercial use of a celebrity’s name or image without their consent is subject to legal liability.
In Korea, there are gradually emerging court precedents recognizing the necessity and legitimacy of publicity rights, but there are still no legal provisions that explicitly stipulate this. As Korea is a country with a codified legal system, the absence of a clear legal basis acts as a certain constraint on the recognition of publicity rights.
Those in favor of recognizing publicity rights argue that, based on the theory of natural property rights, humans inherently have the right to use their names and images commercially. Even if the law does not explicitly stipulate this, the right itself should be recognized as compensation for human effort and self-expression.
In addition, proponents believe that publicity rights will enable people to manage their images more responsibly and, furthermore, encourage the creation of positive images in society. This process could ultimately contribute to the cultural values and industrial development of society as a whole.
On the other hand, there is also a view that the recognition of publicity rights has a positive effect on consumers. When the name or face of a celebrity is used commercially, consumers may mistake it for a recommendation or endorsement by that person. By preventing such confusion among consumers in advance, publicity rights can contribute to ensuring market reliability and transparency.

Arguments against publicity rights and their limitations

Nevertheless, there are still views that maintain a negative stance on the recognition of publicity rights. A representative counterargument is that publicity rights are limited to “celebrities.” In other words, the fact that these rights are granted only to certain individuals who have gained social fame raises issues of fairness.
Some argue that publicity rights provide excessive protection to individuals who have become famous by chance.
In particular, with the spread of the Internet and social media, ordinary people can now gain temporary fame due to specific events, and in such times, clear standards for the scope and subject of publicity rights may become even more ambiguous.
Furthermore, opponents believe that even without publicity rights, existing personality rights, such as portrait rights and name rights, provide sufficient protection. Therefore, they argue that there is no need to introduce new rights and that conflicts can be resolved through interpretation and application within the existing legal system.
Furthermore, the abuse of publicity rights may infringe on freedom of expression. In a democratic society, the fact that even comments or satirical expressions about public figures may be considered commercial use and thus restrict freedom of expression is an issue that cannot be taken lightly.

Conclusion: The Future of Publicity Rights and the Need for Legislation

Amidst this heated debate, the right to pursue financial gain based on fame acquired through statements or images is gradually gaining social acceptance. In particular, for celebrities, athletes, content creators, and other professionals whose image is the basis of their livelihood, publicity rights are a matter of survival.
However, certain restrictions are necessary to prevent these rights from being freely transferred or inherited like existing property rights. This is because publicity rights, while having a property nature, are still rights based on personal elements such as names and portraits. They have a complex nature that is difficult to treat as simple ownership, and it is precisely this point that causes much confusion and legal ambiguity.
Ultimately, publicity rights are unique rights that combine personality rights and property rights, and clear legislative measures are essential to ensure legal stability and predictability. It is time to establish a balanced legal system that prevents the abuse of rights while protecting the legitimate economic value of individuals.