On the Commercialization of Images and the Right of Visualization of Commercialization (I)

It is a new topic that arises in the field of private rights today. Image is related to personality or role factors, but under the conditions of commodity economy, certain characteristics of well-known images have the value of “second development and utilization”. The purpose of this use is not limited to the visibility and creativity of the image itself, but rather to the combination of the image and the specific product and a good influence on consumers. This is the "commodification of the image." In the process of commercialization, a well-known image produces a special type of private rights. It is not a general right of image in the sense of personality, but a (commodification) right of image with property value. The relationship between image right and intellectual property is extremely important, but the real image is not the object of copyright protection. The fictional image does not fully meet the protection conditions of patent right and trademark right. In other words, the right to image is an independent intangible property right.

First, well-known image: the protection of the right to image

In a general sense, the image refers to the concrete “shape appearance” that expresses a person’s thoughts or emotional activities, or refers to a fictional character image or other life image in a literary and artistic work that is “a description of a social life”. Although an image is a whole that represents the personality characteristics of a specific object, it includes many specific factors such as the name, portrait, voice, and posture of the real person; the personality factors; the names, images, sounds, and gestures of the fictional characters. And other artistic role factors.

Various personality factors or role factors may constitute image factors and thus have commercial value. As an object of protection of image rights, the image can be divided into the following two categories: First, the image of a real person, that is, the personality of a natural person who expresses his personality in front of the public. It forms images that are substantially distinguishable by personality factors such as names, voices, signatures, images (including static portrait photos and dynamic television, and personal images in movies) to represent or represent the corresponding natural person. The second is the fictional character image, which is the artistic image with personality characteristics that is created in creative works. It creates virtual characters that are not real, including characters and animals, through artistic elements such as names, shapes, classic movements, mantras, and key phrases. Fictional characters include literary characters, audio-visual characters, and cartoon characters. In some of his works, some scholars listed performance figures and other well-known signs, symbols, work pieces, titles, and other image factors in addition to the above image types. The author believes that the performance image is not an independent image. In the case of actor performing works, if the emphasis is on characters cast by the actors, it is a fictional character image; if one focuses on the true qualities of the actors themselves (such as stills), they can be classified as real characters. In addition, the actors are engaged in performances that do not involve the role of the works, such as circus performances, magic shows, acrobatics, sports performances, etc., should belong to the category of real characters. As for “image factors” such as marks, symbols, work pieces, titles, etc., although they have individual characteristics, they do have commercial value in some cases; however, they do not indicate real or fictional characters, animals, or other lives. Things do not have the direct function of image representation. In the legislation, the above "image factors" are usually adjusted by the Trademark Law, Copyright Law, and Anti-Unfair Competition Law.

The relevant documents of the World Intellectual Property Organization divide the image into two types: "fictional role" image and "real personage" image. 2 In the United States, academics also have the distinction between real characters and fictional characters. However, they have different legal forms of rights. The right of real people's image is called “right of publicity” and refers to “the right of individuals to use their commercial value for their image” (3) or to describe “individuals who are inherent to each person’s personal identity”. The right to use commercial control.” 4 The rights related to the image of a fictional character are called “rights in characters” and their rights refer to the “artistic image” in the work, including “in movies, television, animation, etc. The characters, animals, or robots appearing in the works also include the avatars in the works expressed in the language.”5 In Japan, scholars defined the commercialization of images as “role,” but they also expanded their interpretation. That is, characters include delusional characters that are visually represented in characters such as cartoons or cartoon characters, fictional characters and real characters that appear in characters and languages ​​in the characters of the novel. 6 Chinese scholar Zheng Chengsi listed various forms of the image, including the image of a real person, the image of a fictitious person, the person and animal image created, and the human body image. 7 The various images mentioned here can actually be classified into real characters and fictional characters.

The above two types of images are originally related to the interests of the right of personality, or the object of protection in copyright, or adjusted by the law against unfair competition. However, as a result of the commercialization of the image, the image's interests have evolved into the objects of commercialized image rights. Not all images have the necessity of such legal regulation. The image in the sense of objectivity of image rights has the following legal characteristics:

1 The integrity of the image.

The image in the sense of image rights is the element of the personality characteristics of the main body. The image of real people refers to those identity elements that can be used to indicate natural persons. In the United States, Article 51 of the New York State Civil Rights Act refers to protected "names, portraits, or photographs" as "statutory three elements." In the litigation that infringes the right of image, determining whether an element is the object of protection of image rights, the basic element is to see whether the element can indicate a certain natural person. Legally these elements are called "identifiable elements". 8 The complete image of a fictional character consists of personality characteristics, plots, and reactions. Personality characteristics include the name, identity, appearance description, and personality of the fictional character. Plot refers to the story and story of a character in a specific living environment. Reactions involve reactions to humans and reactions to substances. Based on this requirement of legal protection, fictional characters in purely artistic works or handicrafts cannot be protected because they do not have the above-mentioned elements of a complete character. 9 It needs to be explained that the overall image is also a personalized image. Whether it is a real performance (authentic character) or an artistic shape (a fictitious character), they all have a substantive difference meaning. This is the foundation of the image's popularity. It is also a condition for the commercialization of the image. In other words, the image in the sense of image rights is a personalized image.

2 The visibility of the image.

The image must have a certain degree of visibility, which is the premise that the image can be commercialized. This feature does not require the setting of laws, and it is often the market itself. “This is mainly because the image of non-well-known figures, characters, or institutions is of low commercial development value, and it is difficult to bring direct economic benefits to the business.” 10 For real people, their visibility is expressed in the relevant areas And considerable influence on the public. The popularity here is actually a reputation or reputation for commercialization. For the fictitious role, its popularity depends on the carrier's extensive spread, which can produce a good public effect. The popularity of fictional characters is the reputation and prestige of its carrier in the fields of literature, fine arts, film, television, etc. It is generally through the public dissemination of public reputation. The image popularity of real people or fictional characters does not belong to the realm of the commercial field. However, due to its influence on the market consumers, the problem of image commercialization appears.

3 The commercialization of the image.

The commercialization mentioned here refers to the commercial use of well-known images by related parties. The right holder uses his own or virtual image, or another person assigns or licenses the image with reasonable consideration. Its purpose is not limited to the image's popularity and creativity itself, but the influence of the image in the market. In other words, this kind of influence can bring a wide degree of awareness to the goods attached to the image, and it can bring certain operational advantages to the users of the image. In Japan, the commodification of the image is described as the image "appeal to customers." In his original opinion, in addition to celebrities, characters such as comics, cartoons, animals, and other objects may be the object of commercial image rights, provided that they are "appealing to customers." In the United States, the trademark law assigns “secondary meaning” to a virtual character, which means that the character forms a single correspondence and fixed connection with a good or service, so that the product or service represented by the role becomes another meaning of the role. A report published by the World Intellectual Property Organization commercializes the image and represents the adaptation or re-use of the main character of the character by the creator or real character of the virtual character or one or more authorized third parties. The image is associated with different goods or services, so that the intended consumer purchases the goods or services because of his familiarity and approval of the image. In the real life, the commercialization of the image has various forms, such as the use of the image for advertising, the packaging and decoration of goods, the adaptation of the image to other works or the production of a sold three-dimensional image, and the registration of the image as a trademark or company name. In short, no matter what kind of image factors have occurred in the form of commercialization, it will change the original features of the above-mentioned image (or personality tag recognition, or art personality appreciation), and at this time it will be transformed into a “promotional promotion” of the product. Function and description guarantee function".

The image in "well-known image" is a general concept. For real characters, it is a concentrated expression of the personality characteristics of natural persons; for fictional characters, it is a classic representation of the characteristics of character art. These images are composed of various concrete image confirmation factors such as names, portraits, appearances, postures, and sounds. Some scholars believe that all kinds of specific image recognition factors are the objects of the right to image. The rights holders enjoy the use and legal protection are these specific personality factors or artistic elements. I believe that the specific image factor is that the image can be commercialized, that is, the right to realize the image right, but not the image right object itself. It can be said that the object of the image right is the overall image with individual characteristics formed by various specific image confirmation factors. In other words, the image should be a comprehensive impression formed in the human brain through the visual, auditory, and tactile effects of various specific image factors. In the legal field of vision, it is only the protection of names, portraits, etc. of famous people, or the texts, pictures, sounds, etc. that are limited to the protection of creative works. It should be the task of personality rights law and copyright law. These are not loaded by the right-of-image system. Features.

The well-known in the "well-known image" is an evaluation of value characteristics. The actual function of the right to image is to use rights forms to enable rights holders to commercialize the image elements of well-known real characters and fictional characters, transform their influence in the field of personality and literary and artistic creation to the market, and then to consumers. Make it attractive. Based on this, some scholars have summarized the object of the right of image as the "credit" owned by well-known real characters or fictional characters. In a sense, the "famousness" of certain subject images will of course form an influence and attraction on the public. This is the so-called "reputation." However, the "famousness" with "reputation" as its connotation is the value characteristic of the image right object. It can be argued that the object of image rights should be the overall image condensing from various concrete image factors. This image has a wide range of fame in the original field, and the combination with specific products after turning to the market can generate goodwill for consumers. The image is famous and commercialized. This is the basic reason why it becomes the object of image rights.

(to be continued)