Date of
Judgment: February
2, 2012
Issuing
Authority: Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial (Civil）
Subject
Matter: Others
Summary
of the judgment (decision):
1. The
unauthorized use of the name, portraits, etc., of a person is considered to be
infringement of the right to exclusively use the customer appeal of the name,
portraits, etc. (so-called the right of publicity) and is found to be illegal
under the tort law if the sole purpose of the use is to take advantage of the
customer appeal, more specifically, in such cases where (i) the name,
portraits, etc., are used as goods, etc., that may be appreciated as
independent objects; (ii) the name, portraits, etc., are affixed to goods,
etc., for the purpose of distinguishing the goods from other goods, etc.; or
(iii) the name, portraits, etc., are used to advertise goods, etc.
2. In the case where photographs of the singers
were used and published in an article of a weekly magazine without their
consent, in light of the facts found by the court as listed in (1) and (2)
below, the sole purpose of this use cannot be regarded as the use of the
customer appeal of the portraits of the aforementioned singers, and therefore,
this use can not be regarded as infringement of the right to exclusively use
the customer appeal (so-called the right of publicity) and can not be found to
be illegal under the tort law:
(1) The aforementioned article explains a
weight-loss method that utilizes the dance moves of the singers' songs, which
was popular around the autumn of the year preceding the year of the publication
of said weekly magazine, and it also cites entertainers' childhood memories of
mimicking the dance moves of the singers' songs; and,
(2) The aforementioned photographs are used only
on three pages out of a total of about 200 pages of the aforementioned weekly
magazine, and they are all black and white and 2.8 cm (length) x 3.6 cm (width)
or 8 cm (length) x 10 cm (width) in size.
(There is a concurring opinion concerning 1.)