Analysis On The Legal Issues Related With The Commercialization Of Personality Right

With the development of economic globalization,personality such as names,portraits and other personality elements are increasingly used in commercial activities,the commercialization of personality rights has become a problem which cannot be ignored.The author put forward the topic to be studied from the case of Michael.Jordan v.Jordan sports company,analyzes the theory of personality right,the current legal provisions and the situation of judicial affairs,On the basis of the protection mode of commercialization of personality right in the United States and Germany and other countries,puts forward the protection mode and legislative suggestion which is suitable for the commercialization of personality right in China.This article is divided into three parts to study the legal issues on the commercialization of personality right.In first part,the author analyzes the development and the problems in the commercialization of personality right in China.First of all,the author introduces the dispute between Nike and Jordan Sports Company,Michael Jordan and Jordan Sports Company on the trademark of "Jordan" and "Michael Jordan".Through the contradiction of the controversy,puts forward the legal issues of the commercialization of personality right.We can see that Michael Jordan's claim of the name of the right,not simply the spiritual value,more is the commercial value and economic interests contained in the name.The casepromoted us to think about legal issues on the commercialization of the personality right.Secondly,the author analysis the basis and conditions of the commercialization of personality right.With people 's emphasis on spiritual values,the status of personality right continue to improve,personality right which can also include the nature of the property interests.In the judicial practice,the judge has tried to break through the traditional theoretical restrictions,in the course of the trial,recognized the existence of the property interests of personality right.The commercialization of personality right has a certain degree of progress and development in the respect of theory and judicial practice.Thirdly,the author points out the limitation of the commercialization of personality right.There is limitation on the traditional personality right theory.The traditional personality right does not cover the property contents,the commercialization of personality right lacks of legal basis and laws and regulations.The infringement remedies of traditional personality right focus on mental damage compensation,property damage compensation is rarely supported in the protection of personality right,which is significantly unfavorable to the commercialization of personality right.The author analyses the lag of the existing laws and regulations on the protection of the commercialization of personality right.The current state of legislation cannot meet the development needs of the commercialization of personality right.The author analyses the limitation of judicial protection on the commercialization of personality right.The second part of the article is the study of the commercialization of personality right of other countries.In this section,the author details the protection of the commercialization of personality right in the United States,Germany,Japan,the United Kingdom and the Australia.These countries practice a system that is compatible with their legal traditions,humanistic values and Legal System.The public right in the United States is a property right that is independent of the traditional right of privacy.The public right is not a unique right of a well-knownfigure,the subject of which is the natural person,it is transferable and inheritable,and when the right of public right is infringed,the remedies are mainly prohibited and penalty for damages.Germany established a unified right protection model through the Federal Supreme Court and the Federal Constitutional Court.The commercialization of personality right is still in the category of personality right.In the German Civil Code,personality right is not transferable and inheritable,but the "property composition" in personality right can be transferred and inherited.The uniform rights model is a continuation of the content of the German Civil Code,and keeps consistent with the German traditional personality theory and system.In Japan,the commercialization of personality right is not yet complete,and the related legal provisions are mainly scattered in the "Copyright Law","Trademark Law","Anti-Unfair Competition Law" and other laws and regulations,there is no separate and systematic legislation,and no clear theoretical consensus on the protection of the commercialization of personality right.In Britain and Australia,there is not a separate legal protection of the commercialization of personality right.It is adjusted and regulated by the counterfeiting infringement system.The third part is the discuss and suggest of the development and legislation of the commercialization of personality right in China.First of all,there are different opinions on the nature of the commercialization of personality right.The author argues that the commercialization of personality right does not break the category of personality right,in essence,still be personality right.It is reasonable and appropriate that the commercialization of the names,portraits and other personality elements is still in the category of personality right.Secondly,reference to protection mode,Germany's unified rights model is more suitable for our country.We may expand the interpretation of the traditional personality right,the commercialization of personality right is still covered in the personality right.Finally,the legal status of the commercialization of personality right should be recognized.In the chapter on the personality law of the General Principles of Civil Law,the concept,nature,basic principles and remedies of the commercialization of personality right should be formulated.The subject and object of the commercialization of personality right should be confirmed.The subject of the commercialization of personality right should be the natural person.There is no need to make enumeration,specific provisions on the object of the commercialization of personality right,as long as the personality elements have the possibility of commercial use,without affecting the integrity of personality right,on the basis of compliance with the law and social ethics,it can be used as an object of the commercialization of personality right.The deceased's property interests of personality right should be protected and allowed to be inherited by the successor.The author argues that the deceased's property interests of the personality right should be protected permanently and continuously after the death.The relief measures of the commercialization of personality right should be based on property damage compensation,and other relief measures as a supplement.In the determination of the amount of property damage compensation,we can learn from Germany's "fake use fee" calculation to make sure.With the economic development,the commercialization of personality right will also be diverse.We should face up the lack of theory and legislation on the commercialization of personality right,improve the legal requirements and system construction,so as to guarantee the realization of spiritual interests and property interests of the personality right.