明星運動員個人公開權保護之研究——以美國經驗為主

A Research on the Protection of Star Athletes’Rights of Publicity: Focusing on American Experience

我國目前針對肖像權雖得依民法第十八條、第一百八十四條第一項前段、第一百九十五條第一項之規定，請求財產上及非財產上損害賠償，並得請求法院除去其侵害或請求防止之，惟司法實務上亦常有僅承認精神利益之非財產上損害賠償之判決，與美國所主張具財產性質之個人公開權可提出侵害賠償相距甚遠。近來引起爭議之羽球男雙李洋及王齊麟事件，立法委員提案修正者，僅有公務員服務法、國民體育法，雖相繼修法完成，但排除者只有公務員服務法有關經營商業及兼職規定之限制，修正範圍仍屬有限。美國因肖像權所生財產權爭議發展較早，而著名體育運動員或藝人之姓名或肖像屢有遭到侵害情事，故自司法實務案例以及各州州法發展出個人公開權概念，成為自人格權獨立出來受保護之權利。個人公開權幫助保護個人自主權，並使自己於社會上各層面權利包括姓名、形象及肖像等受到保護，個人公開權在現今社會益顯重要。其中美國職業球員例如職棒大聯盟針對肖像授權歸屬，已發展出縝密之契約規範，至於業餘球員例如NCAA對於大學生運動員從廣泛控制，到後來因應加州《公平比賽薪酬法案》及其他類似州法律給該組織帶來的壓力，改變政策之相關進展過程，皆可作為我國法制上對於運動明星球員個人公開權保護之借鏡。

Currently in Taiwan, individuals can request for property and non-property damages in accordance with the provisions of Article 18 of the Civil Code, the first paragraph of Article 184 Paragraph 1, and Article 195 Paragraph 1 of the Civil Law as well as request the court to remove due to the infringement or request to prevent it. Moreover, in judicial practice, there are often judgments of compensation for non-property damages that only recognize moral interests. It is worth noting that in the United States, individuals who claim the personal publicity rights of a property nature can also claim for infringement compensation. The recent controversial badminton men’s doubles incidents of Li Yang and Wang Qilin which results in the only amendments proposed by legislators are the Civil Service Law and the National Sports Law. Although successive revisions have been amended, the Civil Service Law related to business operations is excluded and part-time regulations along with the scope of amendments are still limited. The property rights disputes arising from right of publicity had developed earlier in the United States as the names or portraits of famous sports players or entertainers have been repeatedly infringed. Therefore, the concept of right of publicity has been developed from judicial practice and state laws and has become a right that is protected independently from personality rights. The right of publicity helps protect an individual’s autonomy and rights at all levels of society, including name, image, and likeness. The right of public display is increasingly important in today’s society. Professional players in the United States, such as Major League Baseball have developed strict contractual specifications for the attribution of portraits. As for amateur players such as the NCAA, it has established extensive control over college athletes in response to the Fair Pay to Play Act in California and other similar state laws. The pressure brought by the organization and the relevant policy changes can be used as a reference for the protection of right of publicity of sports star players in Taiwan’s legal system.