퍼블리시티권과 표현의 자유 - 미국법상 논의를 중심으로 -

The right of publicity is the right of a person to control the commercial use of one’s own identity. Nevertheless, it is inevitably necessary to use other’s personal identifying characteristics in news, biography, novel, movie etc. and the right of publicity can disregard social necessity. Therefore, the right of publicity values should be balanced against freedom of expression values. In the United States, defendants of the right of publicity cases have often argued that they have freedom of expression. As a result, case laws balancing the right of publicity against freedom of expression have developed. According to that, use of personal identity in news or arts is immune from liability for infringement of the right of publicity in principle. On the other hand, use of personal identity in advertisement or on products is not immune from liability in principle. These results seem to be influenced by commercial speech category in the first amendment free speech analysis. In Korea, defendants of the right of publicity cases rarely argued that they have freedom of expression. Accordingly, judgments balancing the right of publicity against freedom of express are small in number. Furthermore, some judgments do not recognize the right of publicity and apply personality rights in protecting the commercial interests of a person’s identity. However, both the right of publicity and personality rights should be balanced against freedom of expression.