MIPLC personality

Slide1: 

Privacy, Personality and Publicity Prof. Dr. Ansgar Ohly University of Bayreuth

Slide2: 

1. Introduction

1 Introduction: 

1 Introduction Three concepts: → Privacy Publicity Personality

1 Introduction: 

1 Introduction Right to privacy: definition 'Right of a person to be free from intrusion into matters of a personal nature' (Encyclopaedia Britannica) 'Right to live one‘s own life with a minimum of interference' (Parliamentary Assembly of the Council of Europe) 'Right to be let alone' (Warren/Brandeis) Protects matters of a personal nature Personal information Private area of retreat Reputation Personal indicia (portrait, name, voice, etc.)

1 Introduction: 

1 Introduction Right to privacy: economic aspects The interests protected by the right of privacy are primarily of a non-economic nature. Protection of private sphere = retreat from public life As soon as a person markets his / her personal indicia or personal information they cease to be 'private' The motivation for intruding into a person’s privacy, however, is often economic. The right of privacy can grant protection against unwanted commercialisation, but it is not an ideal basis for an IP-type exclusive marketing right.

1 Introduction: 

1 Introduction Privacy and Intellectual Property IP Press Law Privacy IP

1 Introduction: 

1 Introduction Right to privacy: patterns of development I Right to Privacy = latecomer among rights protected by private law 19th century: tort law protects corporeal integrity and personal reputation No 'right to privacy' Late 19th century: Development of media: press intrusions into privacy Development of photography and recording devices: unauthorised photographing becomes possible

1 Introduction: 

1 Introduction Right to privacy: patterns of development II Late 19th/early 20th century: Push for legal protection against intrusions into private sphere Influence of legal writing Early 20th century: first privacy statutes / cases After 1945: Protection of privacy recognised as constitutional problem Increased private law protection Balancing exercise between free speech and privacy performed by constitutional and private law courts on regular basis

1 Introduction: 

1 Introduction Three concepts: Privacy → Publicity Personality

1 Introduction: 

1 Introduction Right of publicity: economic aspects fame = commodity Use of a celebrity‘s personal indicia (picture, name, etc.) in advertising Endorsement cases: Advertising indicates/pretends that celebrity uses/endorses product (generally of specifically as 'tool of trade') Use of celebrity‘s personal indicia as 'attention grabbing device' Merchandising: Sale of memorabilia bearing celebrity‘s portrait, name, etc. Press coverage of celebrities‘ lives

1 Introduction: 

1 Introduction Right of publicity: definition = Right to exclusive commercial use of personality aspects Can be infringed regardless of … Defamatory nature of infringing act Confidential / private nature of subject-matter Deception of consumers Affinity to IP Exclusive economic right Licenseability 'Right of publicity' is a term used in US law. UK law does not recognise this right, German and French law grant similar protection on a different doctrinal basis.

1 Introduction: 

IP 1 Introduction Publicity and Intellectual Property Or even Publicity Press Law IP IP Publicity

1. Introduction: 

1. Introduction Right of publicity: patterns of development Late 19th / early 20th century: fame recognised as commodity Early cases of unauthorised use of name or picture in advertising (T. Edison, S. Bernard, Count Zeppelin) The dilemma of the courts Possibility 1: application of established causes of action (defamation, passing off, protection confidential information), and rejection of additional protection Possibility 2: creation of a new right

1 Introduction: 

1 Introduction Three concepts: Privacy Publicity → Personality

1.1 Introduction: 

1.1 Introduction Personality right: definition = Right to self-determination in all matters of a personal nature Specific personality rights: right to one‘s image, right to one‘s name General personality right No restriction to private sphere. 'Personality right' is a term used in German and French law; it is not commonly used in English or US law.

1. Introduction: 

1. Introduction Personality right: patterns of development France: protection of personality under Art. 1382 code civil as early as mid-19th century German Civil Code (1900): no general personality right Right to one’s name (§ 12 BGB) Right to one’s image protected by copyright legislation Economic nature of this right not acknowledged openly until mid 20th century 1950s 'general personality right' protected by German courts Economic nature acknowledged

1. Introduction: 

1. Introduction Personality right: economic aspects Starting point: protection of non-economic interests Dualistic or monistic model? (→ copyright) France: dualistic model = separation between patrimonial and moral rights Germany: monistic model = author’s right protects both economic and ideal interests Recent development in German law: Courts extend monistic model to personality rights

1 Introduction: 

1 Introduction Personality Right and Intellectual Property (German approach) Personality Rights IP