Teacher Wang Zejian has an article "The Issues and Prospects of the Protection of Personality Rights - The Nature and Structure of Personality Rights: Protection of Spiritual Interests and Property Interests", which specifically discusses the issues of privacy rights and publicity rights. The following is an excerpt. Because it is too long, it is impossible to paste it all. You can go to the library to borrow the "National People's Congress Law Review (2009, Seventh Series)" and read it. However, please pay attention to academic ethics and do not copy!

2. Personal Right of Publicity in American Law

1. The Birth and Development of the Right of Publicity

(1) Right of Publicity and Privacy Right

1. The meaning and nature of the right to privacy

The personal right of publicity (hereinafter referred to as the right of publicity) in American law is a right developed from the right of privacy. Therefore The right to privacy should be explained first. The right to privacy was advocated by Warren and Brandeis. They accumulated long-term practical cases and were systematized by Professor Prosser into four types of infringement: intrusion into the plaintiff's solitude or his private affairs (intrusion). Public disclosure of private facts that are embarrassing to the plaintiff (disclosure). Disclosing certain facts will distort the plaintiff's image and cause it to be misunderstood by the public (false light). Appropriation, for the defendant’s advantage, of the name and likeness of the plaintiff, appropriation. Regarding the basic issues of privacy rights, which have been discussed in detail before, four things should be explained:

The four forms of infringement of privacy rights are four independent infringements (four torts), each with its own requirements. Its unified theoretical basis is "let me alone, without interference".

The right to privacy mainly lies in protecting spiritual interests, that is, personal emotions, thoughts and feelings (sentiment, thoughts and feelings of an individual).

Privacy rights belong exclusively to individuals (personal rights) and cannot be transferred or inherited.

The fourth type of infringement of privacy (appropriation) is the most common in practice and has the highest success rate in litigation (because it does not involve freedom of speech).

Open above The fourth type of infringement of privacy (appropriation) is closely related to the right of disclosure to be discussed in this article. Thirteen years after Warren and Brandeis published their privacy treatise (1890), the first important lawsuit involved the infringement of portraits. In the case of Roberson v. Rochester Folding Box Co., the defendant used the plaintiff's photo in a flour advertisement without the plaintiff's consent. The plaintiff suffered mental stress due to being recognized by a friend, and requested compensation from the defendant. The New York State Court of Appeals (this is the final court of appeal in New York State) held that the right to privacy has not been found in common law cases and the court cannot create it on its own. If protection is necessary, it should also be regulated by the legislative body. This decision caused a lot of controversy. The New York State Assembly amended the New York Civil Rights Act the following year to include provisions on privacy protection, stipulating that use in advertising or for commercial purposes without consent is prohibited. Anyone who uses another person's name or likeness constitutes a misdemeanor and the victim is allowed to request compensation for mental damages and an injunction. This judgment has two important significances: A. It denies the right to privacy protected by common law. B. Adopt legislative protection for privacy rights. Due to the importance of New York State in the U.S. business economy, there have been many lawsuits regarding privacy rights, and the provisions of the former New York State Bill of Rights apply.

2. The right to privacy is not enough to protect personal property interests

The right to privacy also protects an individual’s portrait, name, etc. from being used commercially by others. Professor Prosser also recognized this This type of infringement involves property interests, which is different from the other three types of infringement of privacy rights, but it is still included in the system of privacy rights and does not create a separate right that specifically protects property interests in personality traits such as portraits. The nature of the right to privacy and its remedies cannot provide reasonable and necessary protection for property interests in portraits and other personality traits. There are three main reasons for this:

First, the right to privacy is a personal right. Not transferable or inheritable.

Secondly, the right to privacy mainly lies in protecting human dignity and spiritual feelings, rather than property interests.

Thirdly, the right to privacy is to protect one’s solitude and freedom from interference. If the victim is a so-called celebrity, because his or her name and portrait have been made public and he or she has received certain economic benefits, the court will generally recognize that the victim has actually abandoned his right to privacy (the so-called Waiver theory), and there is no room for claiming that the right to privacy has been infringed.

Based on its legal nature, protection content and establishment requirements, the right to privacy is not enough to protect the property value embodied in personality traits such as portraits and names, so a breakthrough must be made. The method adopted by the U.S. courts is to create an individual right of publicity that is independent of the right to privacy and is based on the economic interests of protecting personality characteristics and has the nature of property rights, so that individuals can enjoy control over their own portraits, names and other personality characteristics. the right to exploit, in particular for commercial purposes.

3. Judge Frank and the creation of the right of publicity: Haelan v. Laboratories v. Topps Chewing Gum, Inc. (1953)

The right of publicity in American law was born when Judge Jerome Frank The historic decision was made in the 1953 case of Haelan Laboratories v. Topps Chewing Gum, Inc. The plaintiff in this case, Haelan Laboratories, is a chewing gum manufacturing company. It has the exclusive right granted by a professional baseball player to use his name and likeness on a card called a trading card to promote the sale of its chewing gum. The baseball player later granted this right to his agent, who then transferred the right to use it to the defendant Topp Chewing Gum Company. The defendant was a competitor of the plaintiff and also used the baseball player's name and likeness on the merchandise. The plaintiff claimed that it had obtained an absolute legal status based on the first authorization and could prohibit the defendant from continuing to use the name and likeness of the baseball player.

This case was prosecuted in New York State, and the provisions of the New York State Bill of Rights (§50, 51 New York Civil Rights Law) shall apply. The defendant claimed that the right to privacy stipulated in the law did not protect commercial interests. The baseball player gave the plaintiff the exclusive right to use the contract, which abandoned the exercise of the right to privacy. The plaintiff did not obtain an absolute legal right by virtue of the first authorization. position, and have a claim against the defendant.

Judge Frank also agreed with the defendant’s view that according to the interpretation of the New York State Bill of Rights and related practices, commercial interests are not protected.

However, Judge Frank also emphasized that in addition to the right to privacy, there is a legal basis for protecting such commercial interests: We think that in addition to and independent of that right of privacy (which in New York derive from statute), a man has a right in the public value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture … This right might be called a 'right of publicity.' (derived from statutory provisions) and independent of privacy rights, individuals have a public value for their portraits, that is, they can authorize others to have the exclusive privilege of publishing their portraits. This right is called the right of publicity. )

Professor McCarthy is an authority on the right of publicity in the United States. Regarding the birth of the right of publicity, he quoted the words of the Bible Genesis and believed that just as Jehovah built Eve from Adam’s rib, Judge Frank shaped it from the general right to privacy. Right of publicity. Judge Frank was immortalized in the history of American law for his creation of the individual's right of publicity.

4. Nimmer's paper on the right of publicity

After Judge Frank created the right of publicity with the purpose of protecting the property value of personality characteristics, someone wrote an article pointing out that this is a theory innovation. The reason why the right of publicity can survive and continue to grow should be attributed to Melville Nimmer's "right of publicity" paper published in 1954. Its importance to the development of "right of publicity" is just like Prosser's paper to Warren and Brandeis. The right to privacy created by the two brothers has a critical influence. Nimmer was a lawyer in the legal department of Paramount Pictures Corporation in Hollywood at the time. He immediately recognized the importance of the Haelan decision to the entertainment industry, and put forward four arguments in this landmark paper to affirm Judge Frank's decision. Created right of publicity: The inalienable right to privacy is insufficient to protect property interests in personality traits. Unfair competition is also difficult to protect such property interests because it lacks competition requirement. ?The creation of the right of publicity makes the law more in line with social needs. ?The commercial use value embodied in personality traits such as portraits and names comes from the individual’s exhaustive investment and efforts to obtain commercial use benefits. This is in line with the basic theory of common law and Locke’s labor theory. . Nimmer's oft-quoted famous line: "But although the concept of privacy which Brandeis and Warren evolved fulfilled the demands of Beacon Street in 1890, it may seriously be doubted that application of this concept satisfactorily meets the needs of Broadway and Hollywood in 1954.” [Although the concept of privacy developed by Warren and Brandeis met the requirements of Beacon Street in the 1890s (Note: Beacon Street is an upper-class residential area in Boston where Warren and Brandeis lived), but this Whether the application of the concept can meet the needs of Broadway and Hollywood is doubtful.

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(2) Development and current status of the right of publicity

1. Decision of the U.S. Supreme Court: Zacchini v. Scripps-Howard Broadcasting Co. (1977)

< p>After the creation of the right of publicity in the Haelan case, opinions in various states in the United States were divided between those who supported it and those who did not adopt it. A key influence on the development of the right of publicity was the 1977 decision of the U.S. Supreme Court in the case of Zacchini v. Scripps-Howard Broadcasting Co. In this case, the plaintiff performed a so-called "human cannonball" performance at a fair in Ohio. He was shot out of a cannonball cart and fell into a net 200 feet in front of him. The entire performance lasted about 15 seconds. The plaintiff had stated in advance that any recording or distribution was prohibited. The defendant believed that his performance was part of the exposition news and broadcast it. The defendant claimed that the TV station had illegally appropriated his professional property (an unlawful appropriation of professional property) and should be liable for damages. This case was appealed to the U.S. Supreme Court. This is the first time the court has made a judgment on the right of publicity. The main points of its judgment are threefold:

First, to affirm a recognized legal principle, one should distinguish between one to protect individuals. The right to privacy of feelings, thoughts, etc., and the right to publicity with the content of protecting personal characteristics and property values.

Secondly, the reason why the right of publicity should be protected is to encourage individuals to engage in investment and receive rewards for their efforts. It has little to do with the protection of personal feelings and is independent of the right to privacy. Rights similar to patents or copyrights.

Thirdly, this case involves a live performance, which is related to personal career and livelihood, and should still be protected by the right of publicity.

2. Development status

After the right of publicity was approved by the U.S. Supreme Court in the Zacchini case, it has been adopted by many state laws. So far, the right of publicity is recognized in common law. There are 11 states (including Georgia, Michigan, New Jersey, etc.) and 19 states (including California, New York, Washington, etc.) that have legislation to recognize it. In terms of doctrine, there are hundreds of treatises on the right of publicity, the most authoritative of which is J. Thomas McCarthy’s masterpiece The Right of Publicity and Privacy (New York, first edition, 1999; third edition, 2000), above and below Two volumes, a culmination of legal precedents and doctrine materials, are available for reference. Regarding the protection content of the right of publicity, courts in various states have different opinions. The following discussion is based on the representative court decisions and the common opinions of scholars. . . .