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Newsletter | February 2016, Issue 1
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Technology, Media & Telecommunications
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Appellate Court Issues Settlement Recommendation on Unauthorized Use of a Popular K-pop Celebrity’s Name and Photograph
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On September 11, 2015, the Seoul Central District Court’s Appellate Division issued a recommendation for settlement, in which a cap manufacturer (the “Defendant”) is to pay KRW 10 million in damages for using the name of a celebrity, Suzy (the “Plaintiff”). Kim & Chang represented the Plaintiff in the appeal of this matter.
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Without the Plaintiff’s authorization, the Defendant used Suzy’s name on its keyword search advertisements, and posted three photographs of her on an online shopping mall website. On October 6, 2015, without objection by either party, the court’s recommendation was finalized.
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The appellate court, persuaded by the Kim & Chang’s arguments, reversed the lower court’s decision, and issued a settlement recommendation decision requiring the Defendant to pay KRW 10 million to our client.
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Background:
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On December 18, 2013, the Plaintiff filed a lawsuit against the Defendant cap manufacturer, seeking damages for infringement of her publicity rights.
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The lower court denied Suzy’s publicity rights claim, and rendered a decision for the Defendant in its entirety.
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On appeal, Kim & Chang asserted the following:
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The ability of a celebrity’s name and likeness to attract customers is the celebrity’s most valuable property right (i.e., brand value);
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Such property rights deserve due legal protection;
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Failure to provide legal protection to such rights would bring a severe adverse effect on the domestic entertainment industry;
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For its own business purpose, the Defendant misappropriated the Plaintiff’s brand value. Suzy’s brand value was the result of her substantial investment and efforts.
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Thus, the Defendant’s conduct constitutes both an act of unfair competition under the Korean Unfair Competition Act, and a tort under the Korean Civil Code;
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The Defendant’s act caused Plaintiff damages equivalent to the market value of her name and likeness (i.e. her modeling fees); and
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The Plaintiff sustained emotional distress damages, since it appeared as if she had advertised the Defendant’s product in violation of the advertisement modeling contract she had entered into with one of the Defendant’s competitors.
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Significance:
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To date, courts have not been able to reach an agreement on whether property damages arising from infringement of publicity rights should be legally recognized.
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In previous cases, courts either ruled against plaintiffs or awarded only nominal amounts of damages.
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However, in this case, the court:
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Recognized the inherent property value of the celebrity’s name and likeness;
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Acknowledged that unauthorized business use of the celebrity’s brand value causes property damage; and
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Awarded fair damages.
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Going forward, it is expected that this decision will lead to adequate protection of celebrities’ publicity rights.
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Back to Main Page
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For more information, please visit our website:
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