실존 인물의 모델화와 인격권 보호 = Does Movie-making Based Upon a Real Life Story Harm the Right of Personality?

다국어 초록 (Multilingual Abstract)

These days we can see a considerable number of movies based upon real life stories. Take an example of foreign-made movies, there are "Malcom X"(1992), "Shindler's List"(1993), "Nixon"(1995) and "Ray"(2004), among others. In Korea, we can count "Mr. Gam's Victory"(2004), "Rikidozan: A Hero Extraordinary"(2004), "Mal-a-thon"(2005) about an autistic young man, "Barefoot Gi Bong"(2006), and "Blue Swallow"(2006) regarding the first female pilot in Korea, Park Kyungwon.
This phenomenon gives rise to a series of questions:
- How to deal with some discrepancies between the historical facts and the movie-maker's story line or description of characters in the movie;
- How much to ensure the freedom of expression in the movie-making against the appropriation or commercial use of the names and likenesses of real people; and
- How to provide remedies to the affected people on account of alleged defamation or merchandising.
Remedies include criminal actions in defamation, civil damages in tort such as threatening the right of personality. The United States courts have developed the concept of the right of publicity, which protects the names, images, voices, other likenesses of the celebrity like an intellectual property right.
It would be unfair to allow unauthorized people gain economic benefits by means of commercial use of names and likenesses or deceptive appropriation of the identities of celebrities, Therefore, the affected people should be provided with the right to control the use of their names and images for commercial purposes, including movie-making. While the right of personality is protected on the ethical ground, the derivative right of publicity is usually invoked like an intellectual property right of celebrity because their fame could be treated as property. The concept of the "right of publicity" was first introduced into the Korean courts when a Korean manufacturer's trademark of "James Dean" was disputed by the American movie star's survivors.
As Professors Dogan and Lemley asserted in their article, "What the Right of Publicity Can Learn from Trademark Law"(58 Stan. L. Rev. 1162), copyright is the wrong analogy because there is no utilitarian cause in promoting and marketing celebrity images. Though copyright's fair use doctrine involves trade-offs between the interests of original creators and the users of their creative works, the right of publicity has no similar trade-offs. On the contrary, the right of publicity protects a celebrity's interest in her name and likeness, much as trademark law protects a business's name and other trademarks.
Movie stars, talents, pop singers and professional sportsmen need to prevent commercial use of their names and likenesses that are likely to confuse the public, to dilute or merchandise their reputation rather than monetary incentives. On the other hand, what types of remedies could be provided to non-celebrity? They may resort to causes of action such as privacy infringement, or libel or defamation.
It is noteworthy that, in November 2006, some lawmakers in the Korean National Assembly initiated to amend the Copyright Law in order to include the property-like right of images of celebrities. As mentioned before, the celebrity identity or images are quite different from their commercialized character. It's because the celebrities have done little to create or improve their own identity or images. Once such a right is protected like a property right, it might discourage cultural and creative activities using celebrity names, images and so forth.
In conclusion, it would be better to treat the right of publicity like trademark rather than copyright. Thus any confusion, dilution or merchandising of celebrity identity in the context of business transactions will be controlled. Then it could lead to a win-win resolution in this diversified borderless world which is connected by the Internet or satellite broadcasting service. The more the citizens around the world can enjoy the Korean media content on celebrities, the longer the current Korean Waves will last.

목차 (Table of Contents)

• 〈목차〉
• Ⅰ. 머리말
• Ⅱ. 문제의 소개
• Ⅲ. 퍼블리시티권에 대한 지재권적 접근
• Ⅳ. 맺음말