순수한 인격권으로서의 초상권은 가치인가, 규범인가

Abstract

A portrait right is defined as a right not to have one’s portrait to be created or published without consent. Thus defined, the portrait right poses a serious obstacle to the works of authorship on real individuals. Especially, when Korean courts have begun to recognize publicity rights or the property aspect or the commercial aspect of the portrait right (collectively, “publicity rights”), the portrait right and its elements which are redundant to the elements of publicity rights are disturbing the predictability of the law. The portrait right, if carefully distinguished from and defined as not overlapping with publicity rights and privacy, does not exist in the Anglo-American legal systems. It does exist in Germany and France but because it is always disposed of judicially under the broader rubric of personality rights, each instance of the order to prohibit unauthorized publication of portraits is not clear on its legal basis, which often turns out to be that of privacy. Korean courts, only twice, recognized the “pure” right of portrait (i.e., right not to have made or published a portrait) in absence of defamation, breach of oral or implied contract (on the scope of use), infringement of privacy, or infringement of publicity rights. From the perspectives of legal stability and efficiency, it is a time to think about whether we need to mainintain the portrait right as a norm or simply a value like reputation, bodily security, mental peace, etc.