Publicity

Publicity (퍼블리시티) is the deliberate attempt to manage the public's perception of a subject. The subject of publicity has been mainly celebrities like politicians, performing artists and professional sportsmen, but it includes goods and services, organizations of all kinds, and works of art or entertainment.

Publicity was first introduced to Korea in 1994 when "James Dean", which an underwear company used as a brand name of men's underpants, was at issue. Surviving family members of the late U.S. actor, James Dean, represented by the trust fund in his name, filed a lawsuit with a Korean court to stop the defendant from using such brand name. In 1997, the Supreme Court held that the defendant's trademark did not misrepresent its relationship with the famous deceased actor, it is not likely to harm public order or social customs, nor it could deceive customers.

Key words
publicity, privacy, defamation, freedom of speech, Korean wave (Hallyu, 한류/韓流)

Publicity v. Privacy
In Korea, there are a couple of cases which dealt with the privacy or defamation of the characters whose real life stories were incorrectly described in the novels or movies.

Dr. Benjamin Lee case
Take an example of Dr. Benjamin Lee (이휘소 박사), world famous nuclear physicist who died out of a mysterious car accident in 1977, two novels based upon his life story, including [The roses of Sharon (Mugunghwa) have blossomed (무궁화꽃이 피었습니다)], were largely read in Korea. His survivors demanded the Korean court to enjoin the publishers from publishing those novels because the untrue description of Dr. Lee has defamed him and his survivors.

In 1995, Seoul District Court ruled such demand ungrounded, because i) ordinary Korean readers regarded the late Dr. Lee as a respectful scientist and his reputation was unharmed, ii) the writers had no intention to defame Dr. Lee, and iii) he and his survivors should bear their private lives being somewhat exposed to the public because he was a "public figure".

The Silmido case
In 2003, the movie Silmido (실미도/實尾島) was a mega hit attracting 11 million people, based on a real story of the Silmido mutiny. In August 1971, two dozens of commando trainees of Unit 684 at Silmi Island off the coast of Incheon, who had been trained for a special mission to infiltrate into Pyongyang but lost such raison d'etre owing to the change of international situation, revolted against their trainers demanding better treatment. When they attempted to make their way to the Presidential House in order to appeal their severe situation, the angry commandos were confronted by troops and most of them were killed in gun and grenade battle except four survivors, who were put on military trial and executed later.

The surviving families of trainees argued that the movie contained false contents and exagerated advertisements thereby causing unsesirable defamation and misunderstanding of those trainees and their surviving families:
 * 1) the trainees had been recruited from the death row; and
 * 2) the trainees had sung a North Korean military song, the "Red Flag" (적기가/赤旗歌).

The twelve plaintiffs demanded monetary compensation for mental distress caused by the defamatory statements and injuctions upon the film-maker not to show the movie containing such wrong contents. The Appellate Seoul High Court held:
 * Though the trainees were common people other than felons, the movie contains such misrepresenting clips as caused them to be mistaken for murderers or other felons. In view of the historical facts, the film-maker had some significant reasons to believe in such facts and cannot be considered to have the intention or negligence of defamation. And what the trainees sang the Red Flag song would not amount to defamatory description nor actual defamation of the trainees and plaintiffs.

The Seoul High Court approved in part the application for injunction of the promotion and advertisement of the movie. The court held that, as the official website, DVD attachments and the cover design of the movie videotape were likely to harm the rights of the plaintiffs, the plaintiffs were entitled to demand such part as to be inconstent with the historical facts should be deleted. Insofar as such wrongful content is not deleted, the film-maker are required not to manage the website, nor to make, sell, distribute and advertise DVD sets and video tapes. Expecting that the movie could be shown to the public by way of television or video-on-demand in the future, the film-maker was ordered to pay three million won per day in case of violating the court order because the movie should not be promoted or advertised as if the Silmido incident was historically true.

Finally in July 15, 2010, the Supreme Court held:
 * When a movie was modeled after a real personality or true story, and contains untrue and false facts which might cause defamation of the affected individual, the film-maker could not be free from torts liability only if (i) such facts are concerned about public interest, (ii) the purpose of such false description is for public interest, (iii) the film-maker believed such description is true, and (iv) there are considerable grounds for him/her to believe so. ..
 * In the course of decision-making as explained above, various facts and circumstances such as contents of such false description, the grounds for such misguided belief, the correctness of such information, methods employed to describe the facts, assessed damage to the victim, etc. have to be taken into consideration. In particular, it should be taken for granted that, if such description is concerned about historical facts, the investigative spirit of historical facts or freedom of speech becomes more grave than the fame of the deceased or surviving families as time elapses, and it could not be easy to assess and confirm the truth of such facts owing to the limitation of evidences. In addition, as for a commercial movie made for profit, the film-maker, being interested in commercial success or emotional inspiration, is apt to twist the story line more or less from the historical fact. It could be recognized as an intrinsic value of a commercial film unless it amounts to intentional and actual malice. . . Futher, it should be considered as useful to maintain a tension between the historical facts and dramatic fictitious facts. ..
 * Whether a movie at issue contains a defamatory description of a certain person should be determined by way of assessing and reviewing the whole story of the movie, the story line and the composition of the film, the conventional meaning of dialogues and the compilation of such dialogues on a consolidated basis as well as the overall impression of the movie to the audience . . . and social trends of the theme and background.
 * It is usual for a commercial movie, which was modeled after a real personality or historical facts, bring about promotional activities so as to attract popular interests. . . Insofar as the film-maker thought such promotional activities are true on a well-grounded belief, the film-maker shall not be subject to torts liability arsing out of defamation in such promotional activities. ..

The above-mentioned Supreme Court Decision has set the standards on whether such creation based on a real story could harm the fame of the existing person, who is to blame for such wrong doings in terms of intention or negligence, and when the showing of the movie in question could be enjoined.

Available Remedies
What if one's publicity is harmed by a novel or movie?

Is that OK because one was willing to respond to the writer's interview? No, it is unfair for a public figure to endure the false light to his/her privacy. In the eyes of common people, however, it goes too far for a public figure to enjoy the celebrity status via a movie and, at the same time, to preserve one's own privacy.

Therefore, it would be proper and appropriate to balance such competing interests after considering the content of the movie and other related circumstances. In this connection, the Supreme Court held that, when there are two competing interests - protecting one's honorable personality and ensuring the freedom of speech, it depends on the assessment of the resultant interest obtained either by the freedom of speech or by the protection of personality right, how to balance the said competing interests and decide the scope and methods of regulation.

Remedies which defamation victims could invoke against violators include the injunction to stop publishing the novel or showing the movie, criminal trials on a defamation case, civil damages in tort out of threatening the right of personality.

On the other hand, the United States courts have developed the concept of the right of publicity, which protects the names, images, voices, other likenesses of the celebrity like an intellectual property right. It would be unfair to allow unauthorized people gain economic benefits by means of commercial use of names and likenesses or deceptive appropriation of the identities of celebrities. Therefore, the affected people should be provided with the right to be compensated in a proper manner and to control the use of their names and images for commercial purposes, including movie-making.

Right of Publicity
While the right of personality is protected on the ethical ground, the derivative right of publicity is usually invoked like an intellectual property right of the celebrity because their fame could be treated as property. The concept of the "right of publicity" was first introduced into the Korean courts when a Korean manufacturer's trademark of "James Dean" was disputed by the American movie star's survivors.

Movie stars, talents, pop singers, professional sportsmen, statesmen, etc. need to prevent commercial use of their names and likenesses that are likely to confuse the public, to dilute or merchandise their reputation. It is more important than monetary incentives.

On the contrary, what types of remedies could be provided to non-celebrity? They may resort to causes of action such as privacy infringement, or libel or defamation.

Implication to the Korean Wave
In view of increasing cases where celebrities' name, portrait, etc. are exploited at home and abroad, some lawmakers proposed an amendment to the Copyright Act in order to introduce a "portrait copyright" in 2005.

It is not so good to categorize the portrait of entertainers and professional atheletes in the frame of "portrait copyright" under the Copyright Act. It's because such portrait copyright cannot rely on the court procedure, fair use principles which are granted to the ordinary copyright.

It is desirable to balance the competing interests harmoniously rather than limiting the portrait copyright. The more portrait copyright is protected, the more difficult it is to develop the secondary works and other cultural contents. And the incentive does not work to encourage the creative job. As a result, a kind of trade-off takes place between the leveled-up protection of portrait copyright and the dwindled secondary creative works.

So it might be reasonable to protect the right of publicity like a trademark so that it may not be confused, diluted or tarnished. By doing so, any damage to the subject should be followed by monetary compensation. It is necessary that a celebrity are entitled to manage his/her name, portrait and image like a trademark, and to prevent illegal or commercial use of them. This theory is applicable to the cybersqatting case where a celebrity's name is used without any consent or permission of the subject.

Thus it could lead to a win-win resolution in this diversified borderless world which is connected by the Internet or satellite broadcasting service. The more the citizens around the world can enjoy the Korean media content on celebrities, the longer the current Korean Wave (한류/韓流) will last.