On December 26, 2022, the Ministry of Justice (“MOJ”) announced a proposed partial amendment to the Civil Code (the “Proposed Amendment”) that will establish the statutory right to commercially exploit the use of one’s own name, likeness, voice, and other aspects of their persona (“Persona”).  This right is commonly referred to as the “right of publicity.”  The Proposed Amendment is closely linked to a proposed Civil Code amendment the MOJ announced for public comments in April 2022, establishing personality rights generally. 

According to the MOJ, the Proposed Amendment seeks to clarify the ambiguities in the current Civil Code, which has led to an increasing number of disputes concerning the right of publicity, such as its duration and validity after the individual’s death.  The MOJ also noted that other countries such as the United States, Germany, Japan, China, and France recognize the right of publicity as a statutory right or based on court precedents. 

Key details of the Proposed Amendment are as follows: 

1.   Scope, transferability, and inheritability of the right of publicity (Article 3-3, Paragraphs (2) and (5) of the Proposed Amendment)
 

Historically, discussions surrounding the right of publicity were focused on the Persona of well-known individuals such as celebrities.  However, the Proposed Amendment offers broad protection of the right of publicity as a universal right of all individuals, regardless of fame.

The Proposed Amendment expressly stipulates that the right of publicity is not transferable (Article 3-3(2)).  Upon the death of the rights holder, however, the right of publicity can be inherited, in which case it will be valid for 30 years from the date of inheritance (Article 3-3(5)).  The Proposed Amendment is silent on whether the right of publicity can be waived, but considering the link between the right of publicity and the personality rights, waiver of the right of publicity is unlikely to be permitted. 

Under the Proposed Amendment, it will be necessary to review the need to obtain/grant a license for every single commercial use of the Persona, such as name, likeness, and voice, of any individuals (to be discussed below), and consider the fact that the right of publicity cannot be transferred or waived even when such license has been granted. 
 

2.   Licensing the right of publicity (Article 3-3, Paragraphs (3) and (4) of the Proposed Amendment)
 

The Proposed Amendment allows the holder of the right of publicity to license the right to commercially use his/her Persona to another person.  The rights holder can withdraw the license if a material reason arises, such as when the licensee commercially uses the Persona in a manner that goes against the rights holder’s beliefs.  The MOJ explained that this provision reflects the close connection between an individual’s persona and his/her beliefs and values.  However, the Proposed Amendment appears to give a rights holder broad discretion to withdraw the license (which can lead to a request for removal or other actions to prevent the infringement), so it could have a significant impact on the practical stability of licensing agreements.  Therefore, the Proposed Amendment is expected to give rise to important questions concerning whether an heir to publicity rights can withdraw a license granted prior to the rights holder’s death, as well as the meaning and scope of “material reason.”

The Proposed Amendment also allows a person who has a legitimate interest in using another person’s Persona to commercially exploit such Persona to a reasonable extent without the rights holder’s consent.  The MOJ gave examples of cases where someone would unavoidably use the Persona of another as part of their legitimate activities, such as (i) when the face of a person in the audience is displayed on a screen during a live broadcast of a sports event or (ii) when a clip of a passerby’s interview is used in the media.  However, the MOJ has yet to offer a detailed explanation as to why these examples are considered to represent “legitimate interests.”  The vague concepts of “legitimate interest” and “reasonable extent” included in the Proposed Amendment are likely to cause confusion as to when an individual can commercially exploit another individual’s Persona without consent.
 

3.   Remedies for infringement of the right of publicity (Article 3-3, Paragraph (6) of the Proposed Amendment)
 

In the Proposed Amendment, the MOJ recognized a rights holder’s right to request removal or take action to prevent infringement by applying mutatis mutandis the previous bill establishing personality rights generally in the Civil Code.  The MOJ reasoned that a claim for damages (which is essentially the right to receive compensation after the fact) does not effectively remedy the harm caused by infringement of one’s publicity rights.  Thus, pursuant to the Proposed Amendment, a rights holder would have the right to demand takedown or suspension of content if it infringes on their publicity right. 
 

As part of a partial amendment to the Unfair Competition Prevention and Trade Secret Protection Act (the “UCPA”) on December 7, 2021, the following item was added as a type of unfair competition: “An act of infringing on another person’s economic interests by using an identifier that can distinguish the individual’s identity, such as name, likeness, voice, or signature, which is widely recognized in the Republic of Korea and has economic value, for one’s own business without permission, in a manner contrary to fair commercial practices or competition order” (Article 2, Subparagraph 1, Item (l) of the UCPA).  Separately from this regulation on the “conduct” prohibited under the UCPA, it appears that the MOJ saw the need to establish a corresponding “right” in the Civil Code, which prompted the MOJ to announce the Proposed Amendment.  This is reminiscent of the Ministry of Culture, Sports and Tourism’s attempt to stipulate the right of publicity (named “the rights for likeness, etc.”) in the Copyright Act in early 2021.  It would be helpful to monitor future developments in both the Civil Code and the Copyright Act.

The MOJ announced that it will finalize the bill based on the public comments collected until February 6, 2023, and submit the final draft to the National Assembly in the first half of 2023 after going through the necessary legislative procedures.

[Korean Version]