프로야구게임 제작에 관한 야구종사자의 퍼블리시티권

Abstract

In perspective of logical sequence, this article is the last of trilogy on the right of publicity which follows the first arguing that it is reasonable in the Korea to recognize the right of publicity distinguished from the right of personality and the second arguing that such recognized right is belong to the area of unfair competition law rather than that of copyright law. In this article, the detailed aspects of the right of publicity will be revealed by legal analysis associated with a specific subject. The specific subject is no less than virtual baseball game. The infringement to the right of publicity occurs frequently in virtual sports game such as fantasy baseball games because they must inevitably borrow detailed characteristics of many players or teams in real space. With respect to creation of a virtual baseball game, not only a famous player but also a nameless bench player, baseball manager and coach are eligible for the right of publicity while the eligibility of the team itself is still seriously doubted. Moreover, the horizontal scope of the right covers, as an example for a baseball player, all symbols including his initial name and voice which could reveal his identity. In this regard, the judgment by Seoul High Court on so-called Sang-Min Park fake singer case where the issue was whether it would be the mark or not under the Korean Unfair Competition Prevention Act was arguably wrong because the court discriminated against the other symbols, unlike the singers name. The subject of legal protection should be determined by substantial and flexible standard as whether the issued subject could identify someone, not by formalistic and rigid standard as whether it is a name or other symbols.