[AI Era Warning]④ Unauthorized Use of Voice and Face for Financial Gain... "Discussion on Publicity Rights Needed"

Growing Importance of 'Portrait Rights as Property Rights'
Protected by Law in Each U.S. State
Necessary to Prevent AI Virtual Human Misuse

The late singer Kim Hyun-sik will appear on stage as a 3D hologram, and an advertisement featuring the voice of the late Shin Hae-chul will be broadcast. It is a world where virtual idols, whom you cannot meet in person, are gaining popularity. This has become possible because AI technology has restored or newly developed the likeness and characteristics of individuals. However, what if someone uses a virtual idol’s face without permission and seeks commercial profit with the deceased’s voice, or if someone synthesizes a YouTuber’s face to create digital sex crime videos? The so-called ‘right of publicity,’ also known as the ‘right to control the commercial use of one’s likeness,’ is under threat. Discussions on the right of publicity are expected to deepen further in the AI era.

The right of publicity refers to the ‘property right aspect of portrait rights.’ It is the right to control the commercial use of distinctive elements such as a person’s name, face, or voice. The concept of the right of publicity emerged as cases of unauthorized commercial use exploiting the fame of celebrities increased. With the future development of ICT and the expansion of online platforms, ordinary people who gain public recognition may also become subjects of disputes over the right of publicity. Jin Jeong-hwa, Associate Research Fellow at the Korea Intellectual Property Research Institute, said, “Recently, the number of people called influencers has increased,” adding, “New areas requiring protection are emerging due to technological advances and social changes.”

Legal measures are essential to secure the right of publicity. According to the ‘In-depth Analysis Report on Personal Information Issues’ recently published by the Korea Internet & Security Agency (KISA), South Korea recognizes the right of publicity through case law. In contrast, the United States currently protects it by law in 35 states. Not only celebrities but also ordinary people are protected under the right of publicity, with California setting the post-mortem protection period at 70 years and Oklahoma at 100 years.

At a press conference held last March at the Press Center in Jung-gu, Seoul, urging the resolution of online phishing crimes impersonating celebrities, instructor Kim Mi-kyung is speaking. Photo by Yonhap News

Associate Research Fellow Jin said, “The right of publicity is a legal doctrine developed in the U.S., which places great importance on individual rights,” and added, “It is not yet legally guaranteed in South Korea and Japan.” He stated, “There needs to be mature discussions on which laws should explicitly stipulate the right of publicity, and opinions from stakeholders must be gathered.”

Attempts to guarantee the right of publicity have not been absent in South Korea. During the 19th National Assembly, there was an effort to enact the ‘Act on the Protection and Use of Personal Marks,’ but it was discarded due to the expiration of the term. In 2022, the Ministry of Justice announced a legislative proposal to newly establish the ‘right to commercial use of personal marks’ in the Civil Act. This aimed to codify the right as a universal right for all individuals and clearly define inheritance to prevent disputes. However, since the proposed amendment to the Civil Act was not submitted to the National Assembly, confusion surrounding the right of publicity remains ongoing.

In September, Kim Hyun-jung, a member of the Democratic Party of Korea, took the lead in proposing a Civil Act amendment that prohibits acts infringing on personal rights. This was to firmly establish legal grounds to respond to the increasing issues of personal rights violations such as fake news and digital sex crimes. However, the amendment did not explicitly address the transferability, inheritance, or protection period of the right of publicity. Currently, the Unfair Competition Prevention Act regulates unauthorized use of personal identification marks, but this is a regulation of conduct rather than a grant of rights.

The reason the right of publicity has not yet been legislated is due to unresolved issues. There is disagreement over whether the right of publicity should be regarded as a property right that can be transferred, assigned, or inherited, or as a personal right that cannot be transferred or assigned. Opinions also differ on the length of the protection period and whether it should be limited to celebrities or also recognized for ordinary people.

In March, when phishing crimes impersonating celebrities such as broadcasters Song Eun-i and Kim Mi-kyung became a social issue, the victims held a press conference urging platform companies to take measures. Lawyer Han Sang-jun of the law firm Daegeon, who handled the case, estimated that the damage caused by phishing crimes impersonating celebrities exceeded 1 trillion won. In response, Naver established a reporting channel for impersonation damage, and Google implemented measures such as immediately suspending advertising accounts of advertisers who provided false information to deceive users. However, these are also voluntary regulations by platforms and after-the-fact measures, so they are not seen as fundamental solutions.

Moreover, deceased celebrities cannot be protected under the Personal Information Protection Act, and virtual humans do not have personal rights, making it difficult to protect against unauthorized use under existing laws. Lee Kwon-il, Assistant Professor at Kyungpook National University School of Law, said, “Music generated by AI imitating a singer can constitute an infringement of the right of publicity,” and predicted, “Cases where ordinary people who are not celebrities claim or request protection of the right of publicity will increase.”