论真实人物形象权的法律保护
发布时间：2019-01-17 17:54
【摘要】：现代社会通过真实人物的形象进行商业利用的活动已成为商家促销商品的主要手段之一,自然人尤其是知名人士通过对其形象价值的利用所获得的财产收益在其总收入中所占的比重日益增高,而他人未经授权商业性使用自然人形象给权利人所带来的损失也日趋增多,但是我国对与形象价值相关的保护尚存在缺失,如何保护此种财产利益便成为一个刻不容缓的研究课题。本文主要借鉴国外成熟的立法经验,结合国内外领域相关的理论成果与司法实践来论证通过形象权来保护真实人物形象价值的可行性与合理性。本文分为四个部分,第一章即通过分析我国现行立法中对形象价值的保护缺陷,提出问题即我国是否需设立专门保护形象价值的权利?在我国目前对形象价值的保护仍采用通过人格权、著作权、商标权、反不正当竞争法之间的交叉保护,但即使是这种交叉保护在面对商业利用他人声音、模仿知名人士等手段进行商品宣传时仍然束手无策或者存在争议,我国法院在乔丹案、邓丽君案等案件中均不能有效保护形象权人的利益。所以有必要通过设立形象权来形成对形象价值的系统保护。在第二章正式提出形象权,并对形象权的概念内涵以及其源起背景、发展现状加以介绍,通过对形象权概念历史发展的研究再结合国内外学者对形象权概念的探讨,本文将形象权定义为自然人控制自己形象的商业化使用的权利,而这里的形象不仅包括肖像、姓名,还包括声音、整体造型等可以直接指向某个具体的人的人格要素标识。对于形象权的理论基础,可以结合劳动财产理论、不当得利理论以及经济激励理论,取三者之长,从不同角度探讨认知理论。第三章则具体介绍了国外针对形象价值的三种截然不同的保护模式,分别为美国二元体系保护模式、英国仿冒之诉保护模式、德国人格权体系内保护模式,我国在真实人物形象价值方面法律保护制度的缺失使得借鉴他国成熟的法律经验变得尤为重要,在比较美国、英国与德国三种截然不同的保护模式后,再结合我国的具体理论基础与实践基础,对我国自然人形象价值商业利用的保护与规制应有裨益。通过对这三种不同保护模式的比较分析以探求适合我国借鉴学习的保护制度。最后一章是对我国形象权制度的具体完善,本文提出结合美国二元体系模式与德国人格权体系模式,选择将形象权作为与人格权并列的权利来进行保护,利用人格权来保护自然人人格标识的精神利益,形象权则专门保护自然人人格标识的财产利益,并对形象权的主体客体内容以及权利限制与救济方式做了具体介绍。
[Abstract]:In modern society, commercial use through the image of real people has become one of the main means for merchants to promote goods. Property gains from the use of the value of their image by natural persons, in particular eminent persons, account for an increasing share of their total income, However, the loss caused by the unauthorized commercial use of the image of natural person by others is also increasing, but the protection related to the value of image is still lacking in our country. How to protect the interests of such property becomes an urgent research topic. This article mainly draws lessons from the foreign mature legislation experience, unifies the domestic and foreign domain correlation theory achievement and the judicial practice to prove through the image right to protect the real person image value the feasibility and the rationality. This paper is divided into four parts. The first chapter analyzes the defects of the protection of image value in the current legislation of our country, and puts forward the question: is it necessary to establish the right to protect the value of image in our country? At present, the protection of image value in our country still adopts the cross-protection between personality right, copyright, trademark right and anti-unfair competition law, but even this kind of cross-protection is used in the face of business to make use of the voice of others. Imitating famous persons and other means of commodity propaganda is still helpless or controversial, our courts in Jordan case, Deng Lijun case and other cases can not effectively protect the interests of the image rights. So it is necessary to establish image right to form the system protection of image value. In the second chapter, the author formally puts forward the image right, and introduces the concept connotation, the origin and background of the image right, the present situation of its development, and through the research on the historical development of the image right concept and the discussion of the image right concept from domestic and foreign scholars. In this paper, the image right is defined as the right of natural person to control the commercial use of his own image, and the image here not only includes portrait, name, but also includes sound, whole modeling and so on can directly point to a specific personality element logo. For the theoretical basis of image right, we can combine the theory of labor property, the theory of improper enrichment and the theory of economic incentive, and discuss the cognitive theory from different angles. The third chapter introduces three different protection modes of image value in foreign countries, which are the protection mode of American dualistic system, the protection mode of British counterfeiting lawsuit, the internal protection mode of German personality right system. The lack of legal protection system in the value of real person image makes it particularly important to learn from the mature legal experience of other countries. After comparing the three distinct protection models of the United States, Britain and Germany, Combined with the specific theoretical and practical basis of our country, the protection and regulation of the commercial utilization of the image value of natural persons in China should be beneficial. Through the comparative analysis of these three different protection modes, we seek the protection system which is suitable for our country to learn from. The last chapter is to perfect the system of image right in our country. This paper proposes to protect the image right as the right of juxtaposition with personality right by combining the dual system model of the United States with the German personality right system model. The right of personality is used to protect the spiritual interests of the personal identity of natural persons, while the right of image is specially to protect the property interests of the identity of natural persons, and the content of the subject and object of the right of image, the restriction of rights and the way of relief are introduced in detail.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2410224
[Abstract]:In modern society, commercial use through the image of real people has become one of the main means for merchants to promote goods. Property gains from the use of the value of their image by natural persons, in particular eminent persons, account for an increasing share of their total income, However, the loss caused by the unauthorized commercial use of the image of natural person by others is also increasing, but the protection related to the value of image is still lacking in our country. How to protect the interests of such property becomes an urgent research topic. This article mainly draws lessons from the foreign mature legislation experience, unifies the domestic and foreign domain correlation theory achievement and the judicial practice to prove through the image right to protect the real person image value the feasibility and the rationality. This paper is divided into four parts. The first chapter analyzes the defects of the protection of image value in the current legislation of our country, and puts forward the question: is it necessary to establish the right to protect the value of image in our country? At present, the protection of image value in our country still adopts the cross-protection between personality right, copyright, trademark right and anti-unfair competition law, but even this kind of cross-protection is used in the face of business to make use of the voice of others. Imitating famous persons and other means of commodity propaganda is still helpless or controversial, our courts in Jordan case, Deng Lijun case and other cases can not effectively protect the interests of the image rights. So it is necessary to establish image right to form the system protection of image value. In the second chapter, the author formally puts forward the image right, and introduces the concept connotation, the origin and background of the image right, the present situation of its development, and through the research on the historical development of the image right concept and the discussion of the image right concept from domestic and foreign scholars. In this paper, the image right is defined as the right of natural person to control the commercial use of his own image, and the image here not only includes portrait, name, but also includes sound, whole modeling and so on can directly point to a specific personality element logo. For the theoretical basis of image right, we can combine the theory of labor property, the theory of improper enrichment and the theory of economic incentive, and discuss the cognitive theory from different angles. The third chapter introduces three different protection modes of image value in foreign countries, which are the protection mode of American dualistic system, the protection mode of British counterfeiting lawsuit, the internal protection mode of German personality right system. The lack of legal protection system in the value of real person image makes it particularly important to learn from the mature legal experience of other countries. After comparing the three distinct protection models of the United States, Britain and Germany, Combined with the specific theoretical and practical basis of our country, the protection and regulation of the commercial utilization of the image value of natural persons in China should be beneficial. Through the comparative analysis of these three different protection modes, we seek the protection system which is suitable for our country to learn from. The last chapter is to perfect the system of image right in our country. This paper proposes to protect the image right as the right of juxtaposition with personality right by combining the dual system model of the United States with the German personality right system model. The right of personality is used to protect the spiritual interests of the personal identity of natural persons, while the right of image is specially to protect the property interests of the identity of natural persons, and the content of the subject and object of the right of image, the restriction of rights and the way of relief are introduced in detail.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【参考文献】
相关期刊论文 前1条
1 王文卿;;论形象商品化权的法律保护[J];黄河科技大学学报;2011年06期
，本文编号：2410224
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2410224.html
