Main characters and their lines of popular drama “SKY Castle” are used for public information campaign. However, a lot of parody products are now used in commercials for their private interest.
/Extracted from the Ministry of the Interior and Safety Twitter
Imagine a female character who is dressed in black clothes and has updo hairstyle. Did you come up with Kim Ju-young, the main character of the Korean drama “SKY Castle?” Then, you got the right answer. If someone uses this kind of familiar image or feature and makes any creations, we call this “Parody.” However, people are now raising their voices in criticism of using parody in commercials without paying an author or actor. “The right of publicity” is the term or concept supporting these voices. Since it is not specified in the law, the standard of precedent is unclear, too. Therefore, in Korea, the discussion of the right of publicity is going round in circles while related law suits are still increasing.
The right of publicity is not yet a familiar notion in Korea
The right of publicity might be confused with the portrait right. The portrait right includes the right of privacy and the right of publicity. In detail, the right of privacy focuses on moral part and the right of publicity is based on monetary part. Compared with the portrait right which has both moral and monetary traits, the right of publicity only focuses on the property right. According to former judicial cases, judges had tendencies not to admit the portrait right of celebrities as the judges think their popularity is implicitly allowing their portraits to be used in public. Therefore, opinions of introducing the right of publicity came up to ensure celebrities’ property right. For example, suppose one photographer took a picture of a singer. Then, the singer has the portrait right and the photographer has copyrights of the photo. If this photo was used in commercials, the singer now has the portrait right and also the right of publicity.
As mentioned above, although celebrities sue the company which used their portraits without permission or contract, it is hard to judge if their portrait rights were actually violated. For this reason, some celebrities and lawyers insist that the right of publicity should be adopted in Korea, too. The origin of this right is from one of the judges in the United States of 1950s.
Compared to Korea, we should briefly look up the difference between the statute and unwritten law system. While Korea is based on statute law, the United States follows unwritten law system which includes judicial decisions and custom law. In accordance with this rule, judges in the United States started to cite the right of publicity in a lot of cases. On the other hand, statute law means the written law adopted by legislative body and it does not accept judicial decision in principle. Thus, there is no reason for judges to accept the right of publicity that is not specified in law. Consequently, judgements depend on judges whether to acknowledge the right of publicity or not, so it cannot be consistent either.
National Gugak Center is promoting the performance by using parody of drama “Sunpoong Hospital.”
/Extracted from National Gugak Center NAVER blog
Law suits show incoherent judgements on the right of publicity
The issue of the right of publicity has just made a start in Korea and there is no standard. Recently, one comedian Park Mi-seon expressed dissatisfaction about commercials using her line in drama called “Sunpoong Hospital.” Moreover, there are quite a few cases among the right of publicity that verify inconsistent judgements.
For instance, in 2014, 56 celebrities sued SK Communications of using their names in commercials without notice like “Kim Nam-gil Pants,” “Bae Yong-jun Glassses,” and more. They asserted that SK Communications used their name in the purpose of getting profits. However, SK Communications won the suit with the sentencing, “The right of publicity is not specified in the law and commercials with such keywords cannot be regarded as infringing celebrities’ financial gain.”
Also, there was a similar case about Suzy who is a famous singer in Korea. One website advertised their product by naming “Suzy’s hat,” while Suzy had never worn it before and even there was no contract between them. On the first trial, she lost the case. However, on the trial of an appeal case, the judge admitted there was a partial infringement of the right of publicity on Suzy. What on earth decides partial or none of infringement?
Is the right of publicity necessary in Korea?
For such inconsistency, some lawyers claim that the right of publicity should be enacted as a law whereas others think that laws which are already constituted can ensure celebrities’ properties without using the word “the right of publicity.” Lee Sang-young, the professor from Department of Law said, “Recently, many celebrities are taking legal actions regarding the right of publicity, but there is a controversy due to no exact criteria of the law. However, we should not debate with the term, the right of publicity, which is not even written in the law but rather discuss under Civil Code Section 751. In other words, we should consider that using celebrities’ properties accords with public or personal interest.” He added, “Admitting the right of publicity that only applies to celebrities goes against equity. I doubt separating the right of property from the portrait right only for celebrities is a proper decision.”
In contrast, Park Se-rin (Senior, Piano Major) of Sangmyung University commented, “Is it a right thing to use others’ product without leave? If I were them, I would feel that everything comes to nothing. There should be the right of publicity to protect celebrities' rights.”
Meanwhile, Bae Seon-woo (Junior, Department of Convention Management) of Kyunghee University said, “I agree with the necessity of the right of publicity. However, I am not sure to what extent should the law regulate. It must be rough to find the middle ground.” Like these, there are a lot of different opinions about the right of publicity. Although the opinions have in common with guaranteeing celebrities’ and producers’ rights, it needs a long time to settle the controversy as there is a sharp conflict of opinion. These still leave questions behind us.
Seo Yoo-jeong firstname.lastname@example.org
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