Protection of right of publicity in China

By Linda Zhao, GoldenGate Lawyers
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Right of publicity is the right that natural persons are entitled to control the commercial use of their names, images, portraits or any other person-related characteristics. Right of publicity originated from privacy law in US common law.

赵天娟 LINDA ZHAO 金阙律师事务所合伙人 Partner GoldenGate Lawyers
赵天娟
LINDA ZHAO
金阙律师事务所合伙人
Partner
GoldenGate Lawyers

Right of publicity is widely accepted in Western countries and regions. With its development, the scope of protection under right of publicity has been extended from human portraits initially to various kinds of identification of image elements including names (pen names, stage names and translated names), sounds, portraits, pictures, signatures, actions, performance styles, behavioural manner, clothes, properties and pet phrases, among other things.

Right of publicity, in essence, relates to the use of image elements to attract consumers and obtain commercial profits and, in another word, the effect of commercial application of identification of image elements. Therefore, right of publicity has the dual attributes of personal right and property right. The property interests derived from personal right are the core content of the protection. Many cases involving right of publicity are related to celebrities.

Right of publicity is new in China and not among the types of rights prescribed in the law. As such, there are many different versions of Chinese translation of “right of publicity”. However, in recent years the author has seen an increase in the number of scholars and law professions who pay attention to, and show interest in, right of publicity in China as a result of the rapid development of cultural and entertainment industries, as well as intensified international co-operation in relevant fields.

Right of publicity is not expressly cited as a concept in China legislation. But the protection of right of publicity, to a certain extent, can be secured through existing laws such as General Provisions of the Law of the People’s Republic of China, General Principles of the Law of the People’s Republic of China, Tort Liability Law, Trademark Law, Anti-Unfair Competition Law and Advertising Law.

Cases involving right of publicity are few in China, but have drawn extensive social attention because of the celebrity effect. The dispute involving the administrative cancellation of the trademark “乔丹” (the Chinese translation of “Jordan”) is the most influential one, among others. At the end of 2016, the Supreme Court of China rendered a judgment, and held that the registered trademark “乔丹” constituted infringement upon the prior right of the individual name enjoyed by former NBA star Michael Jeffrey Jordan, and so should be cancelled.

This case seems to protect the individual’s name right. However, the nature of the dispute is about the right to control the commercial promotion of the individual’s name, image and even relevant characteristics of Jordan, as well as the commercial interests generated from the name.

These interests are derived from the overall personality elements of Jordan, and serve as a reflection of the individual’s commercial value resulting from the popularity, reputation and personality charm established by Jordan in the public through his great efforts. The object protected in this case exactly falls within the scope of right of publicity addressed in this article.

“Merchandising rights” is a concept somewhat close to the right of publicity. In 2011, an opposition dispute involving the trademark “ BOND 007邦德 (Chinese translation of Bond)” occurred. For the first time the Chinese court adopted the term “merchandising rights” and held that the copyright owner had the merchandising rights to the movie’s title, 007, and the name of the key character “James Bond” in the movie.

Later, merchandising rights was cited in several court cases involving well-known movies and television works for analyzing infringement in the judgment, and merchandising rights became a hot topic. Some scholars equate “right of publicity” and “merchandising rights and interests”.

The author is of the opinion that they are greatly different, although both exist on the premise that the right owners must enjoy high popularity, and involved elements are of great commercial value. So far as the current cases are concerned, the protection of merchandising rights mostly aims at prohibiting the use of names and images of well-known virtual characters in tangible derivative commodities. Most of the disputes, in this regard, involve trademark right only.

While legal actions claiming right of publicity were always initiated for contending unauthorized commercial use of a celebrity’s image elements, the disputes in this regard mostly involved advertising endorsement and sponsorship. So it can be seen that the merchandising rights under the Chinese context are not equal to the right of publicity in a traditional sense. The use of the two rights cannot be mixed up.

Although current Chinese laws provide protection to the right to publicity to a certain extent, the recognition and protection of such a right are limited greatly in practice because the wording is not clearly established under the law. A prominent problem is that the scope of protection is rather limited, and currently it only covers names, portraits, signatures and other objects as clearly prescribed by law and precedent. However, with the increasing enrichment of cultural and entertainment products, and constant innovation of science and technology, relevant disputes will become diversified and complicated.

The above scopes cannot satisfy the demand for the protection of right of publicity. For example, imitating images, sounds and other identifiable characteristics of celebrities in advertising and promotion in commercial activities is quite common. How to define the legal boundary of such confusing imitation and the application of laws are issues that need to be resolved urgently.

China should refer to the practices of the US and other countries in the protection of right of publicity and create such a type of right as the “right of publicity” in subsequent legislation, or supplement relevant provisions concerning the protection of right of publicity in existing laws.

More efficient protection should be provided to natural persons, especially public figures. At the same time, public interests should be taken into consideration if such use is within the fair use range.

Linda Zhao is a partner at GoldenGate Lawyers. She can be contacted on +86 10 5870 2028 or by email at lzhao@goldengatelawyers.com