[YTN FM 94.5 'Live Economy']

"What is the right of publicity?"
- Law Firm of Han Byul An Byeong Han

Anchor:
It's a celebrity in a store, like a celebrity in a store. A regular restaurant or a store like this. You should be careful when hanging pictures of celebrities and other celebrities. If you go to a restaurant, there are a lot of autographs. Why should you be careful, there are more and more cases of suing for the right of publicity by finding only these businesses. Right of publicity, English, right? This 'right' in front of it is a right, like intellectual property rights. So I think you should know what this right of publicity is. Let's talk to Byeonghan Ahn of Hanbyul Law Firm. Good afternoon.

Byeonghan Ahn, Lawyer at Hanbyul Law Firm:
Yes. How are you?

Anchor:
It's English in the front, and it's Chinese in the back, but what is it? Is it the right of publicity?

Ahn Byung-han:
First of all, it's a right that has been recognized in the United States in case law. Right of Publicity is often translated as portrait use rights, portrait property rights, and so on, but nowadays, many people just know it as the right of publicity. First of all, it is difficult to define the right of publicity in Korea because it is not a right clearly recognized by law. If you define the right of publicity, it is a property value such as a person's portrait, name, voice, right? It's a property right that protects it from being infringed upon for commercial purposes. It's similar to the right of publicity, which is the right to prevent others from using your name, face, voice, etc. without your permission, but it's a personality right. In the case of personality rights, it is awkward to transfer them to others because of their nature. On the other hand, publicity rights are based on personal portraits and things like this, but the property nature of this part is recognized very strongly, so it is free to transfer it to others, and the exercise of publicity rights is not limited to the right holder, but it is also characterized by the part that can be transferred and exercised by others from the right holder himself.

Anchor:
So, if I look at what you said, if I hang a picture of a celebrity in a store without permission, or if I use it commercially in a shopping mall, or if I quote it for promotion on my blog, it's all subject to the right of publicity, right?

Ahn Byung-han:
Yes, it's true that it depends on the specific type of use, but in principle, there are portraits, names, and other characteristic signs of celebrities, right? If you use them without consent, there is a big possibility of infringement of publicity rights as mentioned above. In this case, it means that you cannot be free from damages and liability, which is a typical social problem.

Anchor:
Are there many legal cases these days? What do you think about it? Under the current legal system, it is a right that is recognized by interpretation and precedent anyway, so I can't take issue with the right holder exercising the right, but there are certain rules and it shouldn't be abused. If you look at it now, it doesn't look very good to indiscriminately send proof of content or demand damages, including really small companies, just for the sake of settlement, and of course it is still ongoing, but if you look at the past, copyright infringement is a good example. We've seen people who were underage at the time demanding settlement money for criminal charges, but I wonder if our society has done a good job of educating and promoting copyright protection to young people. For this reason, I personally think that the exercise of the right of publicity should be limited to major infringements that are habitual and have a large amount of damage.

Anchor:
What do you think? If you look at it from the perspective of an entertainment agency or someone who manages a celebrity, if these agencies say, "Hey, we're going to take money from the outlet that's violating your right of publicity, don't do it, it's not a big deal, you don't need to do this," then you don't have to do this? But in the long run, if there are a lot of defamation of character lawsuits against the celebrity, I don't know if it will help the celebrity's image, so I think we need to think carefully.

Anker:
This might be a stupid question. Maybe I'm asking a stupid question and I'm interrupting the flow,

Anh: No.

Anchor: No. Isn't there a case where all of a sudden, if you make a comment about a famous sports figure or a celebrity's personality or personality and it hurts their image in some way, can that be construed as a right of publicity in a broad sense?

Ahn Byung Han:
The right of publicity is the unauthorized use of the person's packaging or something like that, which is not prohibited in terms of journalism or something like that, so I think it depends on the case, and then the part about tarnishing the image, I think it could be a matter of defamation or something like that, depending on the timeliness of other specific facts, rather than the right of publicity.

Anchor:
So, I think I'm getting the meaning a little bit, but isn't there people like paparazzi who think this is a really bad thing? They are not sure of the extent of their liability, and they are paying settlements for various reasons, such as not being able to do business. So it seems to be easy to do these things.

Anchor:
If it goes to court, how do you determine the tort? In this case, the question is whether the tort of intentional or negligent infringement can be established. Usually, the amount of advertising fee that can be received based on that level of infringement, the duration of use, the type of media, whether it is a simple flyer or something like that, and the limited scope of awareness that the general public can see, and how much profit this person actually made from this. The important thing is that the plaintiff is responsible for proving these damages, not the perpetrator.

Anchor:
When you say plaintiffs, most of them are on the upper side of the relationship, so should we say that small merchants who are in the position of the underdog can only lose or lose? If it is used without the consent of the party in a case where the right of publicity can be recognized, of course, there is a possibility of losing. However, the amount of money that the plaintiffs claim is often excessive, so it is rare for the court to grant all of it. So, in conclusion, I think it will be a case of some wins, some losses, and so on.

Anchor:
How much will the penalty be? If you lose...

Ahn Byung-han:
Currently, it is difficult to impose separate fines or criminal penalties for infringement of the right of publicity. Only civil damages will be an issue. It is difficult to say categorically because it depends on the situation, but in the case of Ms. Baek Ji-young's case, which was recently in the media, the parent hospital used her photo on a blog without permission for two years from 2010 for publicity purposes, and the final amount of compensation approved by the court was 4 million won. The court stated that it adjusted the amount of compensation appropriately considering that "the right of publicity has not yet been recognized in written regulations, and the illegality of the infringement has not been established. That's something you can refer to."

Anchor:
In the end, if it comes out like this, some wins, some losses, there are many cases that end in a settlement without having to go to court. Do you recommend this as well? There are many free legal counseling centers, and it's more beneficial to find them through the Internet and get counseling, and in the worst case, get the court's judgment.

Anker:
Yes. So if you don't want to be a victim of this, it's best to be careful, right?

Ahn Byung-han:
Yes, that's right, and the awareness of rights is increasing day by day, and I think it's important to remember that celebrity photos are being used commercially, so if you see unauthorized use, especially on the Internet, or if it's labeled as such, it's a good idea to double-check and take down or take appropriate action, because in some cases, there may be a separate copyright infringement issue with the photos, so you have to be careful.

Anchor:
Since you mentioned copyright infringement, this is something that we were concerned about during the Korea-U.S. FTA, this copyright, intellectual property rights, this kind of thing. Is there a lot of infringement these days? How is it?

Ahn Byung-han:
Yes, there is still a lot of infringement, and in addition to intentional, malicious, and habitual infringement, there is still a kind of good faith infringement that is easily committed in everyday life because they don't know, "Oh, this is also copyright infringement." There is also that part. But I think it's still due to the lack of publicity and then the lack of education for young people, but if you use or reproduce or transmit someone else's work without the copyright holder's consent, it's an infringement, so you need to think twice and act carefully."

Anchor:
Can you just briefly point out what kind of liability you need to be careful about? If copyright infringement occurs, you can be liable for civil damages. Unfortunately, even if it is an unknowing infringement, you can be criminally punished for criminal copyright infringement, especially if it is a habitual infringement for commercial purposes, the penalty is high. And the point of caution is that it has become a world that requires mature citizenship that respects the legitimate rights of others. I think the government should not stand idly by, but should provide proper prevention education and publicity. And lastly, I think the courts are also in a transitional situation in the case of non-money publicity rights, so I think it is necessary to make active efforts such as appropriately reducing the scope of liability for damages or inducing amicable adjustments if it can be seen as a kind of good faith infringement without malicious intent.

Anchor:
Yes. Well, that's a good point that I think we could have missed. Thank you.

Ahn Byung-han:
Yes, thank you.

Anchor:
This is Byung-han Han, an attorney at the law firm Hanbyul.

[YTN FM 94.5 'Live Economy']