소속 연예인 이미지의 무단 활용행위에 대한 연예기획사의 권리구제 방법 : 부정경쟁방지법 (카)목의 활용- 퍼블리시티권 관점에서의 대법원 2019마6525 결정 분석과 퍼블리시티권의 양도성 인정 여부 논의로의 확장 가능성 -

In Korea, the so-called “the Right of Publicity” debate has continued for more than 20 years and has never reached the Supreme Court's trial, even though there have been a number of related lower court rulings. However, with the emergence of the 2019ma6525 decision, the possibility of organizing related issues through the use of the Unfair Competition Prevention Act (KA) has emerged. The Unfair Competition Prevention Act (KA) is always reorganized as the last item whenever a new type of cheating is added, and the scope of its use is quite wide considering that it is intended to maintain the nature of the general provisions according to the abstraction of each requirement. However, even if the nature of the right to publicity is “property rights,” it may be questionable whether allowing unconditional transfer of rights is advantageous to the holder of the public interest, considering that the foundation for claiming it is a “personality factor.” Focusing on the relationship between entertainment companies and their entertainers, ① it is more advantageous for holders to induce “permission to use” contracts rather than transferring themselves, leaving room for utilization as property values in the future, and ② - for users who have signed a contract to use themselves - because of the distance between the initial holder and the final beneficiary of the vouchers, it is more reasonable to deny the transferability of “the Right of Publicity”. From this perspective, the assessment of the target decision is as follows: The conclusion of the target decision, which accepted the claim of violating the Unfair Competition Prevention Act (Ka) filed by an entertainment company (Big Hit Entertainment), which gave economic value to the portraits of celebrities (members of BTS), is justified. However, since it was about deciding whether the Unfair Competition Prevention Act (Ka) was breached or not, the first trial's decision should have used the term ‘utilize’ instead of 'use' in consideration of the corresponding clause, so it had a bit of shortcoming. Nonetheless, it mentioned whether it was a violation of the Unfair Competition Prevention Act (Ka) or not on the premise that the entertainment company had the exclusive rights to use the names and portraits of its entertainers. On the other hand, the target decision accepted the original decision that cited the reason for the first trial decision, but avoided the establishment of a legal precedent for the issue of “the Right of Publicity”. However, considering that the target decision quoted the judgment of the original decision as it was, and that the original decision accepted the judgment of the first trial, it is safe to say that the decision was significant in that the Supreme Court acknowledged the existence of “the Right of Publicity”.