표현의 자유와 퍼블리시티권의 보호범위 - 서적에 관한 일본 및 국내 판결에 대한 분석을 중심으로

To use the celebrity’s name and portrait without permission for sale and advertisement of products can constitute infringement of the right of publicity. Regardless of the non-existence of any express provision, the right of publicity based on the economical value of the celebrity’s name and portrait should be acknowledged. However, when it is used in any act to express such as press reports, the scope of the right of publicity should be limited in relation to the freedom of expression and the right to know, unless such expressions are nothing more than just free-riding on the attraction to customers that the celebrity’s name and portrait have. In Japan, judicial interpretations on what condition the use of celebrity’s name and portrait constitutes infringement of the right of the publicity if it takes the form other than advertisement were decided in ① King Crimson case, ② a series of Bubka cases, ③ Pink Lady case of the Supreme Court of Japan in 2012 and ④ recent Bae Youngjoon case. In Pink Lady case, the Supreme Court adopted the so-called “very only (専ら, moppara) standard” that is to judge whether the use of a celebrity’s name and portrait constitutes infringement or not depending on its purpose, and denied infringement in conclusion. In Bae Yongjoon case issued since then, the district court proposed the criterion that its use constitutes infringement of the right of publicity if its purpose is chiefly to use its attraction to customers. Korean cases on infringement of the right of publicity in relation to the freedom of expression were ① Yi Hwiso case, ② H.O.T. case and ③ Park Chanho case. Unlike Yi Hwiso case where a novel based on a real person’s life was in question, or the H.O.T. case where an unpermitted but published photo book was in question, Park Chanho case was the most direct example on the relation between the right of publicity and the freedom of expression, where the celebrity’s name and portrait used for his biography was in question. The court held that because the celebrities bear obligations to endure public interest to some degree, its use for biography-style books did not constitute infringement unless it were excessive or improper. The development of internet and one-man media, and the proliferation of internet media increase problems on the boundary between the right of publicity and the freedom of expression. Yet it is regrettable that in no case the detailed discussions on this point have been made after Park Chanho case. In some recent cases, the court denied infringement disapproving the right of publicity itself or the economic value of celebrity’s names and portraits. However, the right of publicity itself should be acknowledged and its restriction upon the freedom of expression and business sector should be determined through more accurate and delicate theoretical construction. Hereafter, wider and deeper discussion is expected to proceed in particular from the analysis on the recent Japanese Supreme Court decision and the subsequent ruling of the district courts.