Second, the right of image in American law.
I the emergence and development of the right to image
Right to publicity and privacy
1, the meaning and nature of privacy
The right of personal image in American law (hereinafter referred to as the right of image) is a right developed from the right of privacy, so the right of privacy should be explained first. Privacy is advocated by Warren and brandeis, and the accumulated long-term practical cases are systematically divided into four types by Professor prosser: intrusion into the plaintiff's seclusion or privacy. Publicly expose private facts that embarrass the plaintiff. Propagandizing a false light, distorting the plaintiff's image and being misunderstood by the public. The defendant used the plaintiff's name or portrait for his own benefit (naming the plaintiff's name and portrait for the benefit of defense). The basic issues about the right to privacy have been discussed in detail before, and should be explained from four aspects:
The four kinds of infringement of privacy are four independent infringements, each with its own constitutive requirements, and its unified theoretical basis is "leave me alone".
The right to privacy mainly lies in protecting spiritual interests, that is, personal feelings, thoughts and feelings.
The right to privacy belongs exclusively to individuals and cannot be transferred or inherited.
The fourth kind of invasion of privacy is the most common in practice, and the litigation success rate is also the highest (because it does not involve freedom of speech).
The fourth violation of privacy mentioned above is closely related to the image right to be discussed in this paper. Three years after Warren and brandeis published their privacy paper (1890)/kloc-0, the first important lawsuit involved the infringement of portrait rights. In the case of Roberson v Rochester folding box co, the defendant used the plaintiff's photo in the flour advertisement without the plaintiff's consent, and the plaintiff was nervous because she was recognized by her friends, so she sued the defendant for compensation. The Court of Appeal (New York State Court of Final Appeal) held that the right to privacy does not exist in common law cases, and the court may not create it by itself. If protection is necessary, it should also be regulated by the legislature. This judgment has caused great controversy. The following year, the new york Civil Rights Act was amended by the New York State Legislature, adding provisions to protect privacy, stipulating that it is a misdemeanor to use other people's names or portraits in advertisements or for commercial purposes without consent, and allowing victims to request compensation for mental damages and injunctions. This judgment has two important meanings: A. Denying the right to privacy guaranteed by common law. Privacy is protected by law. Because of the importance of New York State in American commercial economy, there are many lawsuits about privacy, which apply to the provisions of the former New York State Bill of Rights.
2. Privacy is not enough to protect the property interests of personality.
Privacy also protects personal portraits, names, etc. Prevent others from using it for commercial purposes. Professor prosser also admitted that this kind of infringement involves property interests, which is not the same as the other three kinds of violations of privacy, but it is still included in the privacy system, and does not create another right to protect property interests in personality characteristics such as portrait rights. There are three main reasons why the nature of privacy and its relief methods cannot provide reasonable and necessary protection for the property interests of personality characteristics such as portrait rights:
First of all, the right to privacy is a personal right, which cannot be transferred or inherited.
Secondly, the right to privacy mainly lies in protecting people's dignity and spiritual feelings, not property interests.
Third, the right to privacy lies in ensuring that individuals are alone and undisturbed. If the victim is a so-called celebrity, because his personal name and portrait have been made public and he has obtained some economic benefits, the court often thinks that he has given up his right to privacy (the so-called waiver theory) and there is no room to claim that his right to privacy has been violated.
Judging from its legal nature, protection content and establishment requirements, the right of privacy must be broken, because it is not enough to protect the property value embodied by personality characteristics such as portraits and names. The method adopted by American courts is to create a personal image right which is independent of the right to privacy, with the content of protecting the economic interests of personality characteristics and has the nature of real right, so that individuals can enjoy the control and use of their portraits, names and other personality characteristics, especially for commercial purposes.
3. Judge Frank and the Emergence of the Right to Image: Harlan v. Laboratory v. Topps Gum Company (1953)
The right of image in American law came into being in 1953, when Judge Jerome Frank made a historic judgment on Harlan Laboratories v. Topps Gum Company. The plaintiff in this case, Haelan Laboratories, is a chewing gum manufacturing company, which has the exclusive right granted by a professional baseball player to use his name and portrait on a card called trading card to promote the sales of its chewing gum. The baseball player then granted this right to his agent, who in turn granted this right to the defendant Topp Gum Company. The plaintiff's competitor, the defendant, also used the name and portrait of the baseball player on the goods. The plaintiff claimed that it had obtained absolute legal status based on the first authorization and prohibited the defendant from continuing to use the name portrait of the baseball player.
This lawsuit is filed in New York State and shall be governed by the provisions of the new york Bill of Rights (50,565,438+0 new york Civil Rights Act). The defendant claimed that the right to privacy stipulated by law did not protect commercial interests, and the baseball player gave the plaintiff the exclusive right to contract and gave up the exercise of the right to privacy. The plaintiff did not obtain absolute legal status because of the first authorization, but had the right to claim against the defendant.
Judge Frank also agreed with the defendant that commercial interests are not protected according to the interpretation of the new york Bill of Rights and related practices. However, Judge Frank also stressed that there is a legal basis to protect this commercial interest besides the right to privacy: we believe that in addition to the right to privacy (in new york, the right to privacy comes from the law), a person enjoys the right to the public value of his photos, that is, he has the right to grant the exclusive privilege of publishing his photos ... This right can be called "the right to publicity" (we believe that in addition to the right to privacy (which is stipulated by laws in New York State), it is independent of. This right can be called the right of image. )
Professor McCarthy is an authority on the right to image in the United States. In this regard, he quoted the words in Genesis, believing that the Lord made Eve out of Adam's ribs, and Judge Frank shaped the right of publicity from general privacy. Judge Frank is immortal in American legal history because he created the right of personal image.
4. Niemo's paper on the right to publicity
After Judge Frank created the right of image with the content of protecting the property value in personality characteristics, someone wrote that it was a theoretical innovation. The survival and continuous development of the right to image should be attributed to Melville Nemo's paper on the right to image published in 1954, which is as important to the development of the right to image as prosser's paper is to the right to privacy created by Warren and brandeis. Nimmer was a lawyer in the legal department of Mount Pictures Corporation in Hollywood at that time, and immediately realized the importance of Haelan's judgment to the entertainment circle. In this epoch-making paper, Nimmer put forward four arguments, affirming the right of publicity created by Judge Frank: the inalienable right of privacy is not enough to protect the property interests of personality characteristics. Unfair competition is also difficult to protect such property interests because it lacks the requirements of competition. ? The creation of the right of image makes the law more in line with the needs of society. ? The commercial use value embodied by personality characteristics such as portraits and names comes from personal investment and efforts, so as to obtain the benefits of such commercial use, which is in line with the basic theory of Anglo-American law and Locke's labor theory. Nimmer put forward a famous quote: "Although the concept of privacy put forward by brandeis and Warren meets the requirements of beacon street 1890, it may be doubtful whether the application of this concept can satisfactorily meet the requirements of Broadway and Hollywood 1954." [Warren and brandeis] Although1the concept of privacy developed in the 1990s meets the requirements of Beacon Street (note: Beacon Street is a Boston upper-class residential area where Warren and brandeis live), it is doubtful whether the application of this concept can meet the needs of Broadway and Hollywood. 〕
(B) the development and current situation of the right to image
1. The United States Supreme Court ruled: Zachini v. Scripps-Howard Broadcasting Company (1977).
After the Harlan case created the right to image, the laws of various States in the United States agreed, disagreed and had different opinions. 1977 The judgment of Zachini v. Scripps-Howard Broadcasting Company is the key to the development of the right to image. The plaintiff performed a so-called "human cannonball" at an Expo in Ohio, that is, he shot himself from the cannonball car and fell into a net 200 feet ahead. The whole performance takes about 15 seconds. The plaintiff declared in advance that any video recording or dissemination is prohibited. The defendant realized that his performance was part of the news of the Expo and played it. The defendant claimed that the TV station illegally occupied its professional property (illegal occupation of professional property) and should be liable for damages. The case appealed to the United States Supreme Court. This is the first time that the court has made a judgment on the right to image. There are three main points in the judgment:
First of all, to affirm a confirmed legal principle, it is necessary to distinguish between the right of privacy to protect personal feelings and thoughts and the right of publicity to protect the value of personal property.
Secondly, the reason to protect the right to image is to encourage individuals to invest and get paid for their efforts. It has little to do with the protection of personal feelings, and it is a right similar to patent or copyright that is independent of privacy.
Third, this work involves live performances and personal professional livelihood, and should still be protected by the right to image.
2. Development status
After being approved by the Supreme Court of the United States, the Zachini case was adopted by the laws of many states. Up to now, 1 1 state (including Georgia, Michigan, New Jersey, etc. ) has recognized the right of image in common law, and 65,438+09 states (including California, new york, Washington, etc. ) has been recognized by legislation. In theory, there are hundreds of works about the right to image, among which the most authoritative work is J. Thomas Mccarthy's masterpiece "The Right to Image and the Right to Privacy" (new york, first edition,1999; The third edition, 2000), a total of two volumes, is a case theory data set for reference. Regarding the content of the protection of the right to publicity, the opinions of the state courts are different. The following discussion refers to representative court decisions and general statements of scholars. . . .