Analysis on the Right of Commercialization of Reality and Virtual Image

[Introduction] Based on the fact that a large number of real and virtual image commercialization rights have been damaged in the market, this paper suggests that the protection system of commercialization rights should be added to the law of our country, and discusses and analyzes what is the right of commercialization and what kind of protection system should be established.

[Subject words] Commercialization rights Intellectual property protection

In the process of the development of market economy, different market subjects are competing in the market for common profit-making purposes. These market players need to rely on specific commodities to gain a foothold in the market. It is their common goal to make commodities have the appeal of "one call and one response" in a specific group. How can we get this kind of appeal? There is a shortcut, well-known characters or fictional images as the logo of the goods, borrow the appeal of these well-known characters and fictional images to obtain the market's support for the brand and the loyalty of consumer groups.

After the "Little Brother" column of Qilu TV Station became popular, a liquor company in Jinan produced "Little Brother" liquor and began to sell it in large quantities with registered trademarks. When the right holder asks the other party to stop the act, he cannot find a suitable legal basis. The liquor company said that "little brother" belongs to dialect and local language, and its registered trademark has the right to use it. Qilu TV station to solve this through legal means, and intends to put forward a trademark objection to the State Administration for Industry and Commerce. What kind of prior rights are violated by this cybersquatting? The winery did not use the portrait of the host "Little Brother", so naturally there is no question of portrait rights; Qilu TV station has copyright on this column, but does it mean that it has rights to the three words of the column name "Little Brother"? As the winery argues, these three words belong to the dialect. If someone really takes the opportunity to "hitchhike", then is this a right, and how to protect this right? How to make up for the gaps in the current law? What kind of system should be established to improve the protection system? This is the right to commercialization system.

According to research, the right to commercialization began in Britain and the United States, is the judge in the Martin Luther King portrait case, "Elvis Presley" name case, etc., from the common law of the states to "sort out" a right to take the name "right of publicity" (right of publicity or Merchandising Right). The term "merchandising right" in our country originated from Japanese, and the Japanese word "merchandising right" was a literal translation from the common law Merchandising Right in the early 1960 s.

However, China has not established such a system of commercialized rights at present, and there are some defects in the protection of the existing system, so it is necessary to establish a system of commercialized rights.

1. commercialization rights are closer to intellectual property rights and should be included in the scope of intellectual property rights.

As a kind of civil right, as far as the real characters and virtual images discussed in this paper are concerned, although the real characters mainly involve the system of portrait rights and name rights, it is more in line with the characteristics of such rights to separate the commercialization rights and classify them into the category of intellectual property rights. Commercialization rights have the following commonalities with other intellectual property rights:

1. The right of commercialization is an intangible property right.

The carrier of the existence of the right of commercialization is the characteristic or expression of the real person or the virtual image as a whole. It is not that specific person or thing, so the right of commercialization is as intangible as other intellectual property rights. This is one of the reasons why such rights are vulnerable and require special protection.

2. Commercialization rights are temporal.

The realistic basis for the existence of commoditized rights is the appeal and influence of the used image. As the so-called "flowers are not red for a hundred days", therefore, both real characters and virtual images have a specific stage of their influence. After maintaining their monopoly interests in a specific period, they should also consider the balance between their own real influence and public interests. Moreover, as a real person, there is a life cycle, and a virtual image that depends on the protection of copyright law also has a 50-year protection period. Therefore, the right to commercialize should also have time. Moreover, this time should be limited by the copyright protection period of the virtual image or the existence period of the personality right of the real character as the upper limit, and make a reasonable limit from the perspective of legislative technology.

3. The right of commercialization is regional.

The right of commercialization arises in accordance with the law of a certain jurisdiction, so it has obvious territoriality, but the image of the world's well-known can be protected through conventions or bilateral treaties, but this does not affect the territoriality of the right of commercialization.

4. Commercialization rights are exclusive and exclusive.

The right of commercialization itself originates from the right of specific personality or the intellectual property right that creates the virtual image with exclusivity, and these source rights are exclusive in themselves, so the right of commercialization has the exclusive right from the date of its creation and confirmation by law.

Therefore, this kind of right is closer to the copyright and trademark rights in intellectual property rights, and has common characteristics and values with these rights. It should be more appropriate to classify this kind of right into the category of intellectual property rights, and can be integrated with the existing intellectual property protection system, so as to create a more perfect protection system for the protection of the obligee.

2. from the existing system protection defects, the establishment of the right to commercialization system is necessary.

The existing personality right system and copyright system can only protect specific situations, but it is difficult to achieve perfect protection for the marginalized "edge ball" behavior, and what exists in the market is precisely the "edge ball" behavior. This kind of behavior exists in large numbers, but the right holder is dumb to eat Coptis chinensis and has a hard time saying, which does expose the defects of the protection system.

Defects in the Protection of Personality Right System in (I) Real Figures

The traditional system of personality rights focuses on protecting the spiritual interests of civil subjects. When the right of personality is infringed, the degree of personal and moral damage of the right holder must be considered in accordance with the elements of infringement. If there is no derogatory use and the consequences of the damage are not serious, the court's discretion is smaller.

There are also a large number of sideball situations, which are simply classified as follows:

1. Some market entities do not use the real names of well-known figures, but use homophonic sounds to attract the attention of others, such as antidiarrheal drugs "cathartic seal" and celebrity names homophonic;

2. Use the copycat characters appearing in many imitation shows to shoot advertisements. For example, the copycat version of Zhou Huajian, the copycat version of Liu Xiang, the copycat version of Zhao Benshan, and even the copycat version of Clinton to do beauty products advertising;

3. Animate the voice of well-known characters. For example, a hospital advertisement uses a bald image and voice-over to imitate Ge You's "I believe in the masses, I see the line".

The above behavior makes people think. But it is not directly related to the personality rights of celebrities. The right to the name and portrait of the real person was seized and used in large quantities. But according to the original system is not perfect protection. It is difficult to conclude that such acts violated Nicholas Tse's right to name, because the actor only used homophonic sounds instead of directly using the names of real people. It seems that there is more reason to use fake portraits. There are many people with similar appearances. There is nothing wrong with me using real people's images for publicity, and there is no derogatory behavior. As for the association of people who see the advertisement, it has nothing to do with the advertiser. Or animate the real characters, and imitate the portrait sound without naming who it is. How to judge the infringed subject is a problem first. Therefore, there are obviously loopholes in the existing legal system framework such as name right and portrait right, which can not provide perfect protection for the right holder, and sometimes the right holder can only let it go.

Defects in the Protection of Copyright System for (II) Virtual Characters

Because virtual characters do not have the personality of real characters, the rights of virtual characters are enjoyed by their authors, and copyright (art or film and television works) protection is adopted. However, there are also defects. The case of "Sanmao" between Jiangsu Sanmao Group Company and the successor of the late famous cartoonist Zhang Leping is very illustrative. "San Mao" is a famous comic character whose big head, round nose and head with three hairs are well known. Jiangsu Sanmao Group said that "Sanmao" is the abbreviation of its third wool spinning factory, and the "Sanmao" pattern is designed by others to reflect the personalized factors. After hearing the case, the court defined the nature of the case as a conflict of rights between copyright and trademark rights, and determined that the registered trademark must not infringe the prior legal rights of others in the trademark law. However, there are still disputes in the determination of the case. Copyright protects original works. The core of copyright protection is to prohibit the reproduction of the original work, and the protection is the way of expression rather than the design idea. As argued by Jiangsu Sanmao Group, its registered "Sanmao" image was designed by others and incorporated the designer's personality factors. It is not a simple copy of the cartoon "Sanmao" image. In this way, the "San Mao" written by the designer can exist as an independent work of art, and the designer or client will enjoy the copyright. This issue is bound to be a trade-off in the course of the court's determination of the case.

Like a large number of virtual characters, such as Altman and Kitty cats in Japan, Disney animation in the United States, Blue Cat in China, Pleasant and Grey Wolf, etc., there are many similar situations in the market. The commercial use of a specific character in a cartoon work is by no means a partial mechanical copy of the original work. For example, in the aforementioned "San Mao" case, the use of a cartoon character as a trademark only uses a character image with a single action, posture and expression. However, it can inspire third parties who come into contact with the trademark to associate the overall image of the character in the work, because this image has long been deeply rooted in the hearts of the people. Similarly, only the commercial use of the protagonist's name in the work, such as not using the head of Sanmao, but only using the word "Sanmao", is enough to remind people of the overall image of the character behind the name. Therefore, from the perspective of the protection of the existing copyright law, the aforementioned use behavior touches the copyright of comics, but the problem is that it is not a copy of the work, but an abstract use of the overall image of a specific character. If the use of cartoon characters and pictures can be understood from the perspective of the protection of art works, how can the name of a character in a well-known work, such as "Black Cat Sheriff", be protected from the perspective of copyright law?

my country is also vigorously developing the animation industry, and the consensus in the industry is that animation itself does not make money. The profit point of animation is that after the success of the animation image, authorization or self-development of derivative products is the truly effective part of profit. Therefore, for such avatars, the main motivation of the creator lies in the realization of commercialized rights in the future. If this kind of commercialization right is regulated in the current legal system, it will generate huge power and commercial value for the animation industry, which will lead to the revitalization of an industry. This statement is not an overstatement.

Defects in the Protection of Anti-unfair Competition Law in (III)

When people cannot fully realize the protection in the protection of personality rights and the protection of copyright rights, consider applying the anti-unfair competition law to sanction violations of good faith. Can the anti-unfair competition law play a role in the protection of the bottom line?

Although the infringement of the right of commercialization is similar to the violation of good faith in unfair competition, there is an obstacle to the application of the anti-unfair competition law. Unfair competition occurs between operators with competitive relations, but the right holders of image interests sometimes do not have business behavior. In the event of such a dispute, such a reason will become the primary defense of the hitchhiker, resulting in a dispute over the application of the law and affecting the protection of the interests of the right holder.

Proposals for the Legal Protection System of 3. Commercialization Rights

From the above analysis, it is necessary to protect the right of commercialization as an intellectual property right. So how to protect the right of commercialization?

(I), we should define the connotation and characteristics of the right of commercialization.

In the author's opinion, the right of commercialization refers to the right to exclusive use and benefits of real figures or virtual images that have influence on the public and can produce commercial use of economic value. It should have at least three characteristics: public awareness, economy, and exclusive use.

As far as public awareness is concerned, unpublished works and images of non-well-known figures do not enjoy the right of commercialization. The right of commercialization should have considerable influence within a certain range and can guide or influence the public. Therefore, it needs to have public awareness.

The right based on public awareness has the economic value of commercial use, and the use of the image can arouse or grasp the consumer market of a specific group. And the maintenance of this economic value requires its exclusive right to use.

Therefore, the aforementioned public awareness, economy and exclusive use should be the three necessary characteristics of commercialized rights.

(II) the establishment of a system of damages for the infringement of commercialized rights

1. Infringement of commoditized rights

The infringement of commercialized rights can be based on the traditional "four elements" tort theory, but the fault liability should be "presumed fault" in order to better protect the right holder. That is, the violation of the right to commercialization should have the following elements:

(1) The perpetrator may be found to have committed an illegal act if the perpetrator uses the object of the right of commercialization of another person for the manufacture and sale or promise of sale or commercial publicity without permission;

(2) causing damage to the right holder or affecting the exercise of the right holder's commercialized rights;

(3) There is a causal link between the illegal act and the consequences of the damage;

(4) The perpetrator is at fault. In view of the social knowledge of well-known figures or virtual images, too much emphasis on fault liability is of little significance and is easy to become a shackle of rights protection. However, the adoption of no-fault liability is too strict. The author suggests adopting "presumption of fault" to let the actor prove that he is not at fault. Otherwise, the presumption of fault is more appropriate to allocate the obligation of proof of the obligee and the actor, so as to facilitate the protection of legal rights. If the perpetrator is indeed not at fault, it may not be recognized as a tort, but the benefits derived from the act shall be returned.

2. The system of damages for infringement of commercialized rights.

Damages can adhere to the current system of combining actual damage compensation and discretionary compensation in the judicial field of intellectual property rights. If there is actual loss or the infringer has infringement income, the amount of compensation shall be determined according to the actual loss or infringement income. If it is difficult to calculate, it may be discretionary within the statutory limit.
In short, the right of commercialization is still a relatively cutting-edge concept, but the author believes that this system has its vitality and the necessity of existence, in judicial practice has encountered more and more cases of infringement of the right of commercialization, and can not be completely solved by the existing law. The author hopes that more people will pay attention to the research of this system and provide suggestions for national legislation, so as to create an operable system in the civil code or individual intellectual property laws and regulations as soon as possible in the future, so as to promote the improvement and development of the intellectual property system. Provide legal support for the orderly and healthy operation of the market.
(This article won the first prize of Jinan excellent paper)