Reflection on the Relationship between Copyright and Publicity Right: Interaction or Contradiction?!

This article investigates the relationship between copyright and publicity right. These rights are connected in a place where the creators of literary and artistic works use the identity symbols of celebrities and especially their images to create their works. Here, the conflict between the two owners of moral rights shows itself. According to the fundamental principles of copyright or author's right, the work belongs to its creator. On the other hand, using a person's image without his consent can be considered an infringement of publicity right because of free riding and exploitation. Therefore, according to the standards raised in pioneering countries such as America, the right to publicity is recognized as an inherent right of a human being to prevent profiteering from identity signs and emphasize the right's economic aspect. The legal doctrines do not agree on the clash between these two rights and whether the reputation owner should be defended and prevented from violating his economic rights or take the side of the copyright holder. This has led to conflicting opinions and also verdicts in American law. Therefore, the primary question of this research is: In cases of interference between copyright and publicity right, who owns the exclusive rights and benefits of the creativity that have appeared?The current research aims to answer the above question with a descriptive-analytical method and a library and comparative approach. For this purpose, an attempt has been made to clarify the concept of copyright and publicity right, the relationship between the two in terms of similarities and differences, and the interference of these two rights. Solving the conflict between this issue from different legal and judicial perspectives is another subject matter that is considered along with Iran's legal position. The fundamental belief is that if the owner of the publicity right exercises his rights and prevents the manifestation of his identity marks in the literary and artistic works of others, huge damages will be caused to the copyright holders, and consequently, the general public will suffer; This partiality means the opportunity loss to create new and derivative works based on adaptation for other artists and blocks the way of innovation in the future.  If the rights of the copyright holder are overridden, the right of the person to benefit from the features of reputation and identity will be infringed. Therefore, in case of interference, a frontier should be found between these two conflicting interests and the rights of copyright creators and owners of publicity right must be considered. In American law, referring to the principle of "fair use" and expanding its dimensions to the publicity right is considered an important step in settling the claims of copyright owners and the right of publicity. In this regard, the four criteria of the nature of use, the nature of publicity right, Substantiality of the Misappropriation, and the effect of the use on the potential market the owner of publicity have been considered in explaining the boundary between commercial and non-commercial use. The article concludes that the dominance of these two different legal bodies does not mean that one has precedence over the other or that each one is nullified by the other. One should respect the author's creative activities and consider protecting the exclusive rights hidden in identity symbols and controlling their use. Therefore, one of the research achievements is that there is coexistence between two rights, and emphasizing each one does not mean excluding the other or reducing each territory against the other. In Iranian law, although the right to publicity has not been taken into consideration by the legislator and the judicial procedure is silent in any case, it is possible to achieve this conclusion with the inspiration of the solution adopted in leading countries and along with global developments, in the assumption that a creator exploits the celebrity's symbols in his work, the judge must make a decision and they can distinguish between commercial and non-commercial exploitation by referring to the principles of fair use and especially the criterion of the nature and context of use, and if they find free riding, consider the famous person entitled to receive compensation. In this way, the creation of a literary and artistic work from the image of a famous person without his consent is allowed if it is either taken in public places and according to the rights of citizenship, based on the right to freedom of expression and access to information, or the creator manifests the celebrity's image in a transformative way based on the derivative work, so that the famous person is regarded the secondary subject of that work.