| It's an increasingly popular economic phenomenon that a person's name, image, voice and other persona are used in commerce. Thus the increasingly prominent economic interests of persona need protection and regulation of civil law. This has been a hot and controversial legal issue in these years. The legislation in our country has almost not dealt with such a question. In the last ten years the legal authors in our country have done much valuable research on this issue, however, the complexity and newness of this topic makes it deserve furthering research. In this respect, the theories developed in the United States and Germany are experiences of special values, from which we could learn. That's why the issue was chosen as topic of this article.Besides the introduction and the conclusion, the main body of this article is divided into four parts.In the introduction, the topic of this article is illustrated and a brief introduction is given to part of the research situation in and outside our country. The main topic dealt by this article is that, as far as the commercial exploitation of a person's name, image, voice and other persona by which a specific person is specified by other person is concerned, how should the economic interests of such persona be protected and regulated from the perspective of civil law. This topic should be dealt with from two perspectives. The first question is that, in the negative respect, when a person's persona are used for commercial purpose without his permission, what kind of legal remedies could he get from the perspective of civil law? The second question is that, in the positive respect , how could a person authorize others to use his persona for the latter's commercial purpose, and how could he go even further to assign one part or the whole of his right to commercial use of his persona according to civil law?Part I examines how the German law has recognised and protected the economic interests of a person's persona, in which both the historical development of the relevant judgements of the Gernman courts and the relevant German legal theories are introduced. Part I contains four chapters. Chapter one, Part I shows the two competing approaches to the relation between the concepts of personality right(Pers?nlichkeitsrecht) and property right(Verm?gensrecht). One approach holds that the personality rights protect only ideal interests, so that there is a clear and comlete distinction between personality right and property right. The other approach argues that the personality rights also protect economic interests, thus it's not strange that sometimes the two rights overlap.Chapter two , Part I examines the protection of the right to one's image in German law. Section 1 , Chapter two points out that the ideal interest protected by the right to one's image is a self-determination interest in self-depiction(Selbstdarstellung) by images. It's showed in Section 2 , Chapter two that many of the older judgements regarded the right to one's image as a pure personality right, and only gradually did the courts begin to recognise and protect the economic interest of the image. In 1956 the German Supreme Court(Bundesgerichtshof) called the right to one's image"an exclusive right with proprietary value ( verm?genswertes Ausschliesskeitsrecht )"in the case"Paul Dahlke", moreover, the Bundesgerichtshof holded that an unauthorised use of a person's image could trigger an action for damages or unjust enrichment, and the person portrayed could get compensation equal to a reasonable license fee. This typical case has been confirmed on many subsequent occasions.Chapter three, Part I examines the protection of the right to one's name in German law. Firstly,§12 of the German Civil Code(BGB) protects two kinds of ideal interests in one's name, namely"identity interest"(Identit?tsinteresse) and"individuality interest"(individuierungsinteresse)."Identity interest"means the interest that the name must be used to call the right person and not to call the other persons. "Individuality interest"refers to the interest that without a person's consent his name can not be used to call an enterprise, an institution or goods. The general personality right plays a supplementary role, for it confer an exklusive right to a person, which entitles him to decide whether to use his name in advertising or not. Secondly, as far as the economic interests of a person's name are concerned, just like what has happened to the protection of the right to one's image, the earlier judgements of the Bundesgerichtshof emphasised the protection of the ideal interests of the name, and only gradually did judgements of the court begin to recognise and protect the economic values of the name which excluxively belonged to the owner of the name. In such judgements, legal rules developed for the protection of economic interests of one'image were applied by analogy.Chapter four, Part I introduces the two different subjective right models for protection of economic interests of a person's persona. Some German legal authors suggest that a new property right(eg."Pers?nlichkeitsnutzungsrecht"or"wirtschaftliches Pers?nlichkeitsrecht") which is independ from the personality rights should be recognised,ie. a dualistic model. However, the Bundesgerichtshof and the prevailing view among the legal authors represent a monistic model, which reject the recognition of such a new property right and maintain that the personality rights also protect economic interests of a person's persona. In 1999 the Bundesgerichtshof explicitly supported the monistic model in a judgement, which is a milestone for both the concept construction of personality right and the development of protection of economic interests of persona. The judgement acknowledged for the first time that the economic aspect of personality rights were descendible. The authors who favour the licensing of personaliy rights, suggest that the license model provided by the German Copy Right could be applied by analogy, according to which a license transfers a part of the personality rights , in the form of establishment of a right of use (Nutzungsrecht), which is a dismembered right encumbering the personality rights(the'mother right'), to the licensee. However, the dismembered right(the'daughter right') granted to the licensee is not entirely separated from the'mother right',but is under influence of the'mother right'. Part II examines how the US law has recognised and protected the economic interests of a person's persona, in which the historic development and the detailed content of the right of publicity are concerned.In Chapter one, Part II, the protection of economic interests of persona offered by theory of the right of privacy is discussed. In some earlier cases about the right of privacy, some courts insisted on the traditional theory of the right of privacy: The plaintiff who suffered emotional distress because of the commercial misappropriation of his persona should be protected on the base of the theory of right of privacy. However, different from the above cases, under some circumstances, the plaintiffs felt deprived of the economic interesst of his persona rather than the peace of their mind. What they pursued is not the right to be let alone, but the rewards for the commercial exploitation of his persona. The courts expanded the protection limit of the right of privacy and held that, those plaintiffs whose economic interests of persona were misappropriated by others deserved the remedy on the basis of right of privacy, even though they suffered no distress in mind. Professor Prosser and professor Bloustein gave different explanations to the theory of the right of privacy. While The former thinks that the protection of the economic interests of persona is included in the right of privacy, the latter asserts that the commercial exploitation would incur the indignity and humiliation of human being, as a result the persona has not any economic value.In Chapter two, Part II, the inadequacy of the theory of right of privacy was revealed.In Chapter three, Part II, the historical background and development of the right of publicity were introduced. The right of publicity is independent of the right of privacy. While the former protects the economic interest of persona, the latter protects the dignitary element of human being.In Chapter four, Part II, some elements of the right of publicity are discussed, including it's subject, object, content and remedies.In Chapter five, Part II, the heritability of the right of publicity is examined, which is one of the important problems. Many judgments faced with such issue recognized the heritability of the right of publicity.In Chapter six, Part II, a concise summary of the theory of the right of publicity is provided.In Part III, the following questions would be answered: why should the economic interests of persona belong to the person? Why don't the economic interests of persona belong to the public? It concerns the justification for the right of publicity.In Chapter one, Part III, the moral arguments are set forth, which contain"the claim of labor on the fruits of fame"and"the prevention of unjust enrichment".In Chapter two, Part III, the economic arguments for the right of publicity are examined, including the incentives argument and allocative efficiency.In Chapter three, Part III, the consumer protection argument and the'preventing deception in advertising and fostering accountability in advertising'argument are introduced.In Chapter four, Part III, the author indicates the limitations and drawbacks of the above arguments for the right of publicity, and set forth another justification for the right of publicity, which is the theory of personal autonomy.Part IV discusses the right model for protection of economic interests of a person's persona.Introduction of this part offers a concise review of the US law model and the German law model. Under the German law model, the personality right is regarded as a hybrid right which has both an ideal aspect and an economic aspect. This model realizes that the ideal interests in a person's persona should have influence on the economic interests in the persona to some degree. The US law represents a dualistic model, according to which the right of publicity is a new right completely independent of the right of privacy. This model pays little attention to or overlooks what kind of influences should the ideal interests in a person's persona have on the economic interests in the persona. This part is devided into Chapters.Chapter one, Part IV offers a re-examination of the relationship between the personality right and the property right. This article tries to understand the personality right under a distinction model of'person——thing'held by Kant's philosophy. Accordingly the personality right is regarded as a right that protects the dignity of human being from being violated, that is, protects a person from being degraded to the status of a thing. At the same time it is pointend out that, taking a person's freedom and the freedom to develop his personality into consideration, there remains autonomy to a certain degree that a person can have on the personality rights , as long as such an autonomy does not come to such a degree that the human being's dignity is abandoned. Then there is an examination of the differences and relations between the personality right and the property right.Chapter two, Part IV proposes a"right of exploitation of persona", which is restricted by the ideal interests in the persona, and this is the subject right model suggested by this article for protection of economic interests of a person's persona. Section 1 proposes that a"right of exploitation of persona"means that every one is entitled to use his persona himself for commercial purpose or permit others to use his persona for commercial purpose. This right is of property character and is an absolute right. As a property right, it is relatively independent of the personality rights. Section 2 reveals that there is close relations between the"right of exploitation of persona"and the personality rights so that the"right of exploitation of persona"is a special property right subject to the influences and restrictions of the personality rights. Section 3 discusses the possible ways that the permission of commercial use of a person's persona could be granted. In this section two kinds of permissin , ie, consent based on the personality right and license of the"right of exploitation of persona"are analysed in detail. It is emphasized that even if a permission of commercial use of a person's persona is granted, the ideal interests of the person whose persona is used must be guaranteed. Section 4 discusses what kind of remedies according to civil law could a person resort to when his persona is commercially exploited without his permission.As a conclusion, it's held by this article that every one has a"right of exploitation of persona"in his persona. It is a special and a not completely independent right, which is independent of the personality right on the one hand, but subject to the influences and restrictions of the personality rights on the other hand.. According to this article, the German law model has correctly realized that the commercial use of a person's persona affects both economic and ideal (dignitary) interests, and by providing a right to revoke and other mechanisms, it also pays attention to and stresses the guarantee of huaman dignity. In this respect, this model is more reasonable than that of the US law, and this model deserves our country's learning and following.
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