Right of Publicity

Since those whose portraits, etc., have the power to attract customers attract the～Precautious points to use names or portraits, etc. of celebrities～

attention of society their portraits, etc., may be used in newspapers andmagazines to report on current events, in editorials, in creative works, and so on.

1. Right of Publicity

Thus, when used as a legitimate act of expression, etc., it is not illegal. Therefore,

1）Marketing technique to adapt celebrities such as singers, entertainers, actors,

it is important to determine whether the specific use is “mainly for the purpose ofmusicians, athletes, youtubers, voice actors, cultural people for promotional activities isusing the portrait to attract customers,” or whether the use is a legitimate act ofwidely used previously. The fact that their name and appearance are known to public toexpression. The size and number of photos, the relationship between the text andsome extent creates impact of advertising or propaganda for the products or services.

the photos (are they used to supplement the content of the text?), the content ofThis right to use the power of a name or portraits etc., to attract consumers etc., isthe text itself, where and how the photos are used (product packaging, cover,called the right of publicity, which is a right recognized by the judgement of the Supreme

website location), and the content of websites, newspapers, magazines, etc. will

Court of Japan.

be considered comprehensively.

2) A right similar to the right of publicity is the right of portrait (the right not to have2) In addition, even if the use of the name or portrait is authorized in theone’s face or figure “photographed” or “published” without permission). Both the right ofcontract, it is necessary to confirm whether the name or portrait photograph ispublicity and the right of portraits concern the use and publication of personal

used within the scope authorized in the contract (e.g., purpose, duration, numberappearance, etc. The difference is that the right of portrait is a personal right related to aof photographs used, manner of use, etc.).

person’s personal interests, while the right of publicity is a right that emphasizes theIn the case of a company, even if theai

legal staff is aware of the scope of the contractual license, the scope of the3) Unauthorized use of portraits, etc., when such portraits, etc., have the power tostaff. In addition, there have been cases in which a company was sued forproperty right related to economic interests.

license may not be sufficiently communicated to the web designer or advertising

attract consumers to promote the sale of products or services, etc. is considered an

infringement of publicity rights because it did not remove a name or portrait photo

infringement of the right of publicity and illegal under the Tort law, if the purpose of thefrom its website even though the contract for its use had expired.

use of the portrait can be said to attract consumers such as (ⅰ) using the portrait itself
as a product to be appreciated independently, (ⅱ) placing the portrait on a product forthe purpose of differentiating the product, or (ⅲ) using the portrait as an advertisement
for a product (Supreme Court February 2, 2012 (Case No.2009 (Ju) 2056)).

Our firm has experience in many cases of infringement of publicity rights, soplease feel free to contact us for a consultation.
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4) If a portrait photograph is used by another person without permission, you canclaim both infringement of portrait right and infringement of publicity right. As specificactions, it is possible to demand an injunction against the unauthorized user to stopsuch activities as well as to claim for damages.

2. Points of concern when using names and portrait photos
1) As in (ⅰ) through (ⅲ) above, if the main purpose is to utilize the customerattracting power possessed by the portrait, etc., it is an infringement of the right ofpublicity, but it is not protected without limitation.

Kei IIDA
Attorney at Law

Reiko TONOMURA
Attorney at Law

Eriko KITAHARAPatent Attorney[k_iida☆nakapat.gr.jp][r_tonomura☆nakapat.gr.jp][e_kitahara☆nakapat.gr.jp]

WriterPlease replace ☆ by @.
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