The Jeju District Court recently ruled that so-called "keyword advertisement services" (i.e., search terms incorporating the names of famous celebrities) provided by Daum (www.daum.net), a major online portal in Korea, did not infringe upon celebrities' right of publicity.
Plaintiffs were famous celebrities in Korea, such as Yong-joon Bae, Dong-gun Jang, Suae, and Nam-gil Kim. Plaintiffs filed an action against the defendant, Daum Communications (hereinafter "Daum"), to seek compensation for using their names for commercial purposes. Daum provided a "keyword advertisement service" through its web portal, which provided links to advertisers' websites if a user searched for the name of a celebrity in combination with a particular product (e.g., "Yong-joon Bae muffler"). Plaintiffs argued that the keyword advertisement service (i) infringed upon their right of publicity by using the plaintiffs' name for commercial purposes without authorization, and (ii) aided and abetted infringement of plaintiffs' right of publicity by the advertisers, who used the plaintiffs' names in advertising their goods. Specifically, plaintiffs argued that Daum's "keyword advertisement service" constituted (i) a joint tort (pursuant to Articles 750, 751 and 760 of the Korean Civil Act) committed by and between the Defendant and the advertisers and (ii) an act of unfair competition under Article 2.1.(j) of the Korean Unfair Competition Prevention and Trade Secret Protection Act.
The court dismissed all of the plaintiffs’ claims for the following reasons:
Article 185 of the Civil Act stipulates that no real right can be created at will other than rights specifically recognized by statute or customary law, i.e., historically recognized standards. However, there is no express statutory basis for recognizing the right of publicity, and it is difficult to recognize such right (a right that is very similar to a real right) simply because there is a perceived need for such protection.
Although right of person's name is protected under Article 10 of the Constitution, and is legally guaranteed by a general clause, such as Article 750 of the Civil Act, the scope of protection under such right is limited for people who have chosen a public profession, such as an entertainer, compared to ordinary people, due to the nature of such profession. Thus, in order to seek compensation for damages, there should be special circumstances under which the concerned person has suffered mental distress beyond acceptable limits. However, it cannot be said that the keyword advertisement service has infringed upon the plaintiffs' right of publicity or caused the plaintiffs to suffer mental distress beyond acceptable limits in view of the following facts: (i) the advertisers simply used keywords such as "Yong-joon Bae muffler" to easily name the goods that the celebrities wore; (ii) the keyword search has become a topic of conversation among people and contributed to increasing the celebrities' popularity; and (iii) the celebrities were given goods for free and the acceptance of such goods by the celebrities indicates that they intended or accepted such promotional activities.
Findings in Similar Cases
Celebrities have filed similar lawsuits against other web portals, such as Naver (www.naver.com) and Nate (www.nate.com), and the outcome has been substantially the same. The table below provides a quick summary of these cases.
Click here to view the table.
Lessons and Implications
In recent years, the Korean entertainment industry has experienced tremendous growth, and celebrities have initiated numerous disputes over their rights of publicity. In addition, certain industry factors, such as the increased distribution of content through the internet and smart phones, have further diversified the ways in which photos and names of celebrities are misappropriated, thereby intensifying right of publicity disputes.
In Korea, the "right of publicity" itself is currently not explicitly defined in a statute. If such right is recognized, however, the potential damages will very likely increase compared to the current situation where only infringement upon the "right of name" is recognized. Consequently, there is a current trend for entertainment companies to file lawsuits seeking compensation for damages for infringement upon the right of publicity. However, as evidenced by the above cases, the Korean Courts have declined to recognize the right of publicity, or at least strictly limited the scope of such right.
The Korean Courts seem to consider the following factors as important in determining whether or not the right of name for a celebrity is infringed: (i) whether the celebrities have obtained benefits through sponsorship of the advertisers; and (ii) whether such benefits may be attributed to the online portals. These points will be helpful in determining the viability of future lawsuits asserting the right of publicity for celebrities.