퍼블리시티권과 부당이득 - 미국 법에서의 시사 -

When one person’s interests have been infringed or appropriated byanother person, the rightful owner of the interests can be protected byunjust enrichment claim. But in order to pursue unjust enrichment claimbased on infringement of the right of publicity, the claimant first have toestablish that the claimant has an exclusive interest, called right ofpublicity. So to discuss unjust enrichment claim in connection with right ofpublicity, whether a person is entitled to have an exclusive right to controlthe commercial use of one’s name, image, likeness or any other identitywithout any statute recognizing right of publicity should be reviewed. However, even in the United States which allows judges to make law,there is a decision holding that “if such a right is deemed necessary ordesirable, such right should be provided for by action of our Legislatureand not by judicial legislation.”Some Korean courts’ decisions derive the right of publicity from right tothe pursuit of happiness. In addition, though Korea is a civil law country,there are other courts which recognized the right of publicity based onnon-statutory grounds such as most foreign countries recognize right ofpublicity or the need for protection of right of publicity. However, thereare some court decisions which deny to recognize right of publicity. Thus,in order to resolve the conflict between court decisions, statutoryenactment is required. It is doubtful whether the scope of recovery should be limited toclaimant’s loss rather than infringer’s benefit even if the infringer is anintentional infringer whose blameworthiness is much greater than theclaimant. Considering the fact that restitution is recognized as a separateremedy from damages, restitution should be considered as a remedy whichrecaptures infringer’s wrongful gain rather than compensating claimant’sloss. Also, not all recovery of the infringer’s profit is itself punitive. Inaddition, considering that recovery of the infringer’s profit is also allowedin other cases such as infringements of patent, copyright or trademark,allowing recovery of the infringer’s profit in itself is not unfair. Therefore, especially in case of intentional infringer who has profitedfrom commercial exploitation of another person’s right of publicity, moreproper measurement for infringer’s benefit should not be limited to fairmarket value of claimant’s right of publicity, such as royalty, but shouldinclude the profits which infringer has gained and which are attributableto the unauthorized use of the claimant’s right of publicity. Therefore, thestandard for measurement of infringer’s benefit in case of infringement ofright of publicity should be reconsidered.