퍼블리시티권의 법제화 방향에 대한 연구

In Korea, the right of publicity which means the right to put a person’s identity to commercial use has not yet found its official status in the legal system. The supreme court has not made a relevant case decision while the case decisions of lower courts are not consistent. This situation is causing a big confusion and difficulties among stake holders and industrial circles, which calls our attention to the necessity to legislate this right. But several rounds of legislative attempt have not yet been successful. Considering these situations, this writing explores the desirable direction of legislation by critically analyzing a bill that some lawmakers proposed to protect this right in the last session of parliament. The suggestions of this writing are as follows. Firstly, we should make detailed and clear provisions about the prerequisite and scope of this right in the act in order not to give ‘chilling effect’ on people’s freedom of expression. Especially, the meaning of ‘commercial use’ included in the concept of this right should be clearly and limitedly defined by concrete and specific provisions. Secondly, the act should focus on the side of property right even though this right is inextricably linked to personal rights. In addition, it must have a clear provision about the relation with personal rights. Lastly, it is necessary to prohibit the transferability of this right in order to protect the human dignity and personal interest of the person in question. But the descendibility of this right must not be denied. It is rather helpful for the adequate protection of the personal interest of the deceased. A post mortem right of publicity should be provided to last for a comparatively short term.