The Study On Commercialization Of Personality Rights

In the modern society, developing and employing figures, names or a certain part of its body in business activities to advertise and promote sales has been very common. Every kind of hair shampoo advertisement is used to display one's hair quality, stocking advertising is used to mainly manifest one's legs, and all kinds of advertisements spread out everywhere through TV media. Any typical figure or a part of it can become a tool for businessmen to make use of commercial profitability. The commercialization of a personal image and a certain part of it is expanding day by day; however, the law measures can not be made in time, which can not solve the legal difficulty that appeared in the real life. The legal difficulty is the commercialization of personality rights.On the issues of the commercialization of the personality rights, there were different views among the scholars. Generally, the opinions of the commercialization of personality rights can be divided as the followings:merchandising right, personal image right, character's promoting sales right and personality's commercial use right. Actually, the key point of these views is that how to protect the commercial use of personality's identification, by intellectual property law or by personality right law? The basic opinion of merchandising and personal image right is that the commercial use of personality identification must included to the field of intellectual property law by which could protect the interests of people properly. However, character's promoting sells right and personality commercial use right completely abandon it and set up another theoretical approach which hold that the phenomenon of the commercialization of personality rights have not yet reached necessaryly to set up a new right and we would sufficiently cope with the change of the reality by perfecting the existing legislation. The nature of merchandising personality rights is not belonged to intellectual property, not intangible property, but still belonged to the field of personality rights.The businessmen would usually choose to promote the sales of goods in order to attract consumer's attention and arouse their very strong consumption desires under the modern market economy system. And the public figures with vivid characteristics, special influence, appealing and natural affinity became undoutly their first choice. The specific influential power of mass media and public figures is the foundation of commercialization of personality rights. From the jurisprudential basis point of view, Locke's Labour Theory can not be the right basis that an individual can get the property right of personality identification. The Labour Theory aims to admit that the labourer who makes something out of the natural state in order to own and control it by mixing with his or her labour. As far as the owner of personality identification is concerned, in the process of getting their character images and names, they usually did not have to give their labour or what they only pay is the labour of the entertainment team work. As far as some kinds of scientists are concerned, they did not have the subjective intention to get such famous character image. And at the same time, the achieving of the famous image of a person is often connected to some external factors such as lucky, the concerning of the public and so on. Therefore, the opinion that holds that the Labour Theory is the jurisprudencial foundation of the commercialization of personality rights is ridiculous and absurd. Kant and Hegel's Free Will Theory of property right recognize both in spirit and material of personality, which, to some extent, provide theoretical support for the commercialization of personality rights. From the Symbols Theory point of view, the symbols have the function of expression, identification, and guidance, which can upgrade the value of goods; especially, the famous people with a marked feature of identifying symbols would attract consumers to have a reasonable association and make consumer trust them onto goods. The personality identification can be commercial use just because of the Symbols Theory is its foundation which can enhance the attractiveness of goods and services to the consumers and can be the theory basis of the commercialization of personality rights.In China, the commercial use of personality identification should be protected mainly by personality law and accompanied at the same time by copyright law, trademark law and anti-unfair competition law. However, there are still defects that are hard to overcome in the existing law. The defects can be analysed in several aspects, that is personality right is a kind of specialization which not belong to property right,can not be sold or bought and can not be inherited; personality right can not exist from independently from the specific character, which, the person who own it has not right to prohibit others from using the image that is very similar to him or her in commercial activities and also can not base on the reason that his or her image right is infringed for the quest to ask the court to decide others stop utilizing the image which is very similar to the image of the role of cartoon. When a person wantonly infringes personality of others by using his or her portrait, name in advertising, and the victim sue the infringed for the request to ask for spiritual damage compensation, the court may not support him or her. And even if the court support him or her, the victim is usually difficult to get actual damage compensation consistently in monetary because there is amount limit provision in law. Copyright law mainly protects the forms of expression. Trademark law tends to protect the sources distinction of products. And, anti-unfair competition law provides relief protection which can not be concrete enough and announce to the public that its rights should not be violated by anyone.In foreign countries, As far as the United States is concerned, the merchandising right of a character image is protected by the rights of double models which separated the personality rights into two parts,namely,the right of publicity and privacy.And the personnality rights of commercialization are protected by the right of pubulicity. While in Germany, It put in force a unified approach, that is, the commercialization of personality rights are still included in the framework of the personality rights and the expression of general personality rights is expanded to cover personality rights in commercial use field.In China, if we want to realize the goal of the legal protection for the commercial use of personality identification, we should recognize that the commercial value of personal image is a kind of property which can be sold or bought and inherited in personality law. This kind of image includes not only name and portrait, but also signature, performance and substitute of identity. As long as the factors of identification can be associated with a certain specific figure, they should be recognized in the range of one's own control. In addition, in the related construction of system, we must recognize that the acts to infringe personality identification of others should be imposed punitive compensation.