The Study On The Legal Protection Of Real Person's Right Of Publicity

In modern society, more and more personal identity has been applied to the goods and services by business ads in order to pursue maximum benefits. It is an indisputable fact that people's name, image, voice and other personal identification contains economic interest. However, as the relevant legal system is not perfect, many disputes arise in the process of commercial use personal identity, and the relevant rights of people can not be protected perfectly. Nowadays the most common commercial parody reflects this contradiction further, such as "copycat Star", "take-Star ride", and so on. Based on these phenomenon mentioned above, the author examined the foreign legal system which is established to regulate the commercial use of personal identity, and attempt to seek some inspirations for China's legal protection of real person's right of publicity.Analysis for a real case constitutes the article's preamble, which points that China's current law can not protect adequately people's right when personal identity is used to commerce. The article's body consists of five parts, which is mainly to solve three issues:what is the right of publicity of real person, why should we protect the right, and how to protect the right.Firstly, the article defined the conception and nature of the real person's right of publicity, which is used to solve the problem that "what is the right". After taking into account some factors, such as the origin and value, the legal allocation of right to regulation, and other country's legislative models, the author defines real person's right of publicity is a right that real person can hold and protect these benefits embodied in their personal identity such as name, image, voice, and so on, that can apply their personal identity in to commercial exploitation, and that can not be infringed by other people. Then, the author further analyzes the nature of person's right of publicity, which still belong the right of personality because of the economic interest embodied in the right dependent on the personality factors, rather than part of the right of property.Secondly, the article analyzes the problem that "why real person's right of publicity need to protect". Personality theory, the first accounting theory, the fruits of labor theory, allocative efficiency theory and prevention unjust enrichment theory provide theoretical basis for the establishment of real person's right of publicity; the contradiction between practical needs for legal protection and the limitations of current laws and regulations provides a realistic basis for the establishment of real person's right of publicity.Finally, the article analyzes the problem at macro level and micro-level respectively that "how to protect real person's right of publicity" after examined the foreign legal system which is established to regulate the commercial use of personal identity. At the macro level, the author advocates to adopt a new protection mode which makes real person's right of publicity established as an independent right in the system of personality right. In addition, the author further analyzes the conflict and coordination between the real person's right of publicity and other rights related, which make the new right more operable in judicial practice. At the micro level, the author introduces his idea about the establishment of the system of real person's right of publicity in China, including legal subject, legal object, legal content, responsibility forms, and other legal protection related issue.