Real Rights Characters Analysis

The right of publicity of real person is the right of people secondary develop the significant personal character and used in commercial activities. It comes after the United States the legal protection of privacy, but along with the market economy and the development of judicial practice it enentually separate itself from privacy and become a kind of independent new civil rights. At present, in China, relevant the right of publicity of real person disputes appear increasingly trend of increase, but the research and legislation about the right of publicity of real person are relatively slowly. Based on the analysis of the famous case and in reference to domestic and foreign scholars latest theoretic achievement,this paper present the legislative proposals to establish China’s the right of publicity of real person protection system, hope to help the establishment of the right of publicity of real person. This paper is divided into the following several parts.The first part, mainly discuss the basic theory of the right of publicity of real person Including the origin of the right of publicity of real person,legislation and research status. The right of publicity of real person was born in united states because of American developed commercial economy and strong commercial culture has close relationship. The United States by the original way to protect the right of publicity of real person, but it is a property rights and has essential difference with personality rights,so privacy could not completely suitable for the protection of the right of publicity of real person. Finally America’s Judge Jerome Frank proposed the right of publicity of real person in1953and was widely recognized. The United States has as many as28states through different forms of law to affirm and protect the right of publicity of real person since it has been birth. In addition, Australia and Canada also use the right of publicity of real person to solve such disputes in legal practice. At present, there is not legislation of this right in China but a lot of scholars have made extensive and in-depth discussion in the right of publicity of real person.The second part, mainly talk about the legitimacy of fundamental theory of the right of publicity of real person. Must give the image interests as a private property rights because of image interests is the result of image owners labor. Meanwhile, through the establishment of the right of publicity of real person can prohibit others to use of the image of holder to acquire unjust enrichment, prosper the social culture and to maintain the normal order of market competition.The third part, from the legislation of our country present situation, analyzes the present right of personality and property rights system cannot completely suitable for the protection of the right of publicity of real person. Personality is to protect personality interests, but the right of publicity of real person is property right reflect property interests,although both the carrier exist a certain coincidence place but we can not delimit equal-sign. From the perspective of intellectual property, the right of publicity of real person is not copyright protection object and through the registered trademark will greatly increase the cost. Therefore,it is necessary to establish the independent system of the right of publicity of real person.The fourth part, mainly discussed the law relationship of the right of publicity of real person. The subject should not be confined to the well-known figure, but everyone can become the right subject. Object should be the commercial value which is contained in image of owner. The content of the rights cover two aspects what is the access and disable the rights.The final part mainly involves protection and limit of the right. The right of publicity of real person as a right should be protected but also to be limit. The limit of it mainly from freedom of speech, disgraceful consideration and competitive free three aspects. The obligee who has similar image should be exercise in a reasonable way and should not mislead the public by confusing image of obligee for the sake of unjust enrichment.