On the Commercialization of Image and the Right of Visualization of Commercialization(2)

Second, the system comparison: the right form of image commercialization

The right to image is a new, unfinished legal concept. In the field of private rights, there is an edge zone and intersection between personality rights (including name rights, portrait rights, privacy rights, etc.) and intellectual property rights (including copyrights, trademark rights, trade name rights, etc.) so that it cannot be simply Image commercialization is classified in any category of personal rights or intellectual property. Right of image is a new kind of property rights created between these two major private rights systems. It is inextricably linked with the traditional private rights system, but it has its own independent character.

Personality rights and image rights. The image interests of real people are mainly a kind of personal interests, which are generally adjusted by the personality right law. The right form of commercialization of the image originally derived from the right of name, portrait, privacy, and reputation under the traditional personality right, and thus has obvious personality attributes. Under the conditions of commercialization, personal interests such as names and portraits are reshaped into "images" with commercial interests and applied to various commercial activities. This makes the right of image originating from the personality right system to a great extent deviated from the original right category and entered the field of non-material property. In the 1983 Carson case, American judges said: “The right to image is created to protect commercial interests in celebrity status. The theoretical basis for this right is that celebrity’s identity is valuable in promoting products. The rights enjoyed by celebrities should be protected, and celebrities can stop others from using their identities commercially without permission." This passage clearly illustrates the difference between the right of image and the right of traditional personality, or shows the system of the right to image. Created purports:

First, the object of personal right protection is the general personality interest, and the image right involves a well-known image. The personality right is universally enjoyed by the subject and the personality rights enjoyed by each person are common. This shows the equality of the subject's personality and the universality of the personality right law. Right of image is a property right, which varies from person to person. Its object of protection is a well-known image that is known to the public and has an influence in society.

Second, personality rights are intended to safeguard the freedom, security, and spiritual interests of individuals and behaviors, and the right to image is to maintain the commercial value of well-known images. In the traditional theory of personality rights, personality interests cannot be directly represented as commodities, and their value cannot be calculated in terms of money. The establishment of the right to image is a transformation of this right model. It considers the market value and property interests of the commercialization of the image.

Third, the function of personality right is to prevent others from harming their personal and spiritual interests, and the role of image right is to prohibit others from using commercial image of their own image. Therefore, the amount by which the two measure damages is different. The judge is concerned with the degree of personal and mental damage in cases of infringement of personality rights, and the degree of market loss of image interests in cases of infringement of image rights.

In short, the right to image originates from personality rights, but it is different from personality rights. From the perspective of social motivation, the change from personality right to special property right is the result of the development of commodity economy; from the legal perspective, it is the product of the private rights system innovation. Many of the so-called mark and credit property rights are related to the right of personality. They are a new system that extends beyond the traditional right of personality, and it is a form of rights that evolves from a personality interest to a commercial personality. We have seen that in the framework of the modern legal system, based on the name of the legal person in the business, it has the trade name right; based on the reputation and honor formed in the business activity, it has the right of goodwill and credit; due to the name, portrait and body of the natural person The commercial use of the right to create an image. These rights are property rights that are different from traditional personality rights.

Copyright and image rights. Fictitious characters generally come from works protected by copyright. The role is an integral part of the work. The shaping of the character image is the key to the success of the work. Therefore, it is logical that the role and role image should be protected by the copyright law as a result of the author's creative work. Many countries still use copyright laws to protect the fictitious role very early, but their degree of protection is different. In Germany, the legal profession divides the role protection issues into two categories: role names and role images. Regarding the name of the character, the country rarely gives protection because the name of the character does not meet the originality requirement. The image of the character must not be used without permission, even if imitation is prohibited. In Japan, the law has established copyright protection for fictional characters through a series of cases. The judge thinks that the role is not the work itself, but in the case of a work that presents a visual image of a person or an animal, the picture is not limited to the fixed performance of the picture itself but also to the person represented. Things like. The protection of the copyright of Japanese jurisprudence on the role is limited to the cartoon character represented by the figure.


In Canada, characters depicted in visual form can be protected as works of art. The imaginary role in literary works is like the literary works themselves enjoying copyright. In the United States, virtual characters are protected by copyright through court decisions, but the protection standards for literary characters and cartoon characters are quite different. The literary role exists in the language description, so the "copyrightability" of its fictional role is difficult to identify. For this reason, the judge created the so-called "distinctively delineated" standard and the "story being told" standard in the "Nichols" case and the "SamSpade" case. The former has a relatively wide range of standards. Any role that imitates the unique description of another person constitutes infringement; the latter standard is strict and only when the role constitutes the entire content of the work is it protected. Regardless of the standard, the protection of copyright in the United States is not limited to the text of the work, and it is conditionally extended to the role. The cartoon character is different, because it has a specific, fixed appearance image, which itself is a unique expression of “copyright”. Therefore, the judge thinks that the similarity of a simple cartoon character may constitute infringement.

In summary, the copyright protection of fictional characters in Western countries has the following characteristics:

First, fictional characters constitute a unique field of copyright objects, but not a single type of independent work. Many countries regard visual roles as artistic works, and literary roles as an integral part of works. This is the basis for the role of copyright protection.

Second, copyrightability is an important condition for copyright protection of fictional characters. The role can only be separated from the scope of "thought content" and become the object of copyright protection. At this point, visual characters are more easily protected than literary characters.

Third, image factors such as names, voices, mantras, and classic movements possessed by fictional characters are often the objects of commercialization, that is, the characteristics of characters that cause consumers to associate. However, the use of these features is not the use of the copyrightability of the work. From the above analysis, we can easily see that the copyright protection of the fictional role is also flawed: First, the protection of the copyright of the role is not fully protected. Some of the various image-determining factors such as characters are not specific expressions (such as role names), and some do not have originality conditions (such as the accent of a character), and this copyright law is powerless. Second, the protection of the copyright of the role is uncertain protection. It is difficult to identify the role as a copyright object. British law holds that, like the titles of works, the roles of literary and dramatic works do not enjoy copyright. Although American jurisprudence determines that the role should be protected by copyright, it is difficult to determine which role should be protected. In short, the modern copyright system pursues the protection principles of "dichotomies of ideology expression" and "originality." Under this legal mechanism, it is difficult to provide fictional characters with the same legal protection as the works themselves. The abuse of the copyright protection of the role is precisely the reason why we created the system of the right to image.

Trademark rights and image rights. The fictional character contains the creative expression of “copyright”, which is the legal foundation of the copyright protection of the character. Different from the above, well-known images include real characters and fictional character images. Because of their distinguishability, they can also be protected by trademark law. The protection of trademark rights is based on the recognition function of the object. In other words, the factors that can be protected in the image feature are the identifiable factors. Such as the real person's name, portrait, fictional character's name, modeling, etc., as long as they have distinctive features and do not violate the trademark law prohibition clauses, they can apply for registration and obtain trademark rights. In trademark law, the image factor is protected, which is the object of trademark rights, based on the "second meaning" theory.

The "second meaning" is the concept of trademark law. In the United States, it is mainly referring to the use of certain descriptive or generalized words through long-term use. It is no longer the literal meaning of consumers in their minds, but represents the relevant The provider of goods or services can reveal the source of goods or services. Chinese scholars generally believe that common names, descriptive signs, and other signs that lack distinctive features, if used to obtain a "second meaning," produce a recognition function and may be allowed to register. In the original sense, the image factor is either the character of the real person or the artistic character of the fictional character. It does not have the function of distinguishing the origin of the goods. However, as a result of the commercialization of the image, these image factors gradually diverge from the original personality category or creative field, and form a single correspondence relationship with a specific product source, so that the source of indication or indication of the product (ie, the distinctive sign) becomes Another meaning of the image factor. Associated with the above theories, the use of image elements in the field of trademark law constitutes infringement of use, and the basis is "conflict theory." In accordance with international treaties and national trademark legislation, the use of "confusion theory" for the determination of general trademark infringement is adopted.

The laws of France, Germany, Italy and other countries stipulate that without the consent of the trademark right holder and causing confusion in the relevant public, others may not use the same or similar trademarks on the same or similar goods or services in commercial activities. It can be seen from this that the essence of confusion is misunderstood by consumers, that is, consumers will misunderstand the goods attached with a certain trademark as their own products to be purchased in the future. The use of infringing elements in the identification of image factors is based on the fact that such use causes the public to confuse the source of the goods. Specifically, it includes: The consumer misidentifies the user of the image user as being provided by the image right owner, or obtaining permission or other support from the right holder; the commercial use of the image user and the image right holder have other commercial links. In short, the function of the trademark law is to register trademarks with various image factors, which will help protect the rights of image rights holders and help prevent consumer misrecognition and product source confusion in the process of image commercialization.

However, the protection of the image by trademark rights is limited:

First, the qualification of the subject is limited. National trademark laws have some qualification restrictions on the subject of trademark registration applications. For example, some countries require trademark applicants to apply for registered trademarks only for the commodities they manage. However, the commercial character broker or creator of the fictional character image does not personally engage in commodity production and operation activities, that is, it does not participate in the image of the "second development and utilization" process;

Second, the scope of the object. National trademark laws have some restrictive provisions on trademark registration, and the provisions are different. In this way, some image factors such as sounds, phrases with long words, etc., although they have commercial value, cannot be used to register trademarks;

Third, use object restrictions. National trademark laws generally provide that the use of registered trademarks is limited to approved products rather than similar products. If you want to expand your use, you must submit another application according to the product category. In countries that do not have a defensive trademark system, it is impossible to use image characteristics as a mark in all business areas. The fundamental reason for the above limitations is that trademarks are only the marks that distinguish the source of goods, and the form of image commercialization is not limited to the identification function. It includes advertising, packaging, decoration, image adaptation, production and sale of three-dimensional image, registered company name.