'No Personality Rights for Pop Stars in Hong Kong?' by Peter Yu, on
SSRN and as a chapter in
The New Law of Brands and Reputation in the Asia Pacific Rim (Cambridge: Cambridge University Press 2012) edited by Andrew Kenyon, Ng-Loy Wee Loon & Megan Richardson, notes that -
Referred to as 'the Pearl of the Orient' for generations, Hong Kong is a glamorous city known for its lavish lifestyle and the rich and famous. Its entertainment products, in particular movies, television programs, and music, are highly popular in not only Asia, but also different parts of the world. Yet, the region does not offer strong protection of personality rights to celebrities. This development provides an interesting contrast to developments in the United States, where Hollywood actors receive very strong protection of their name, likeness, image, voice, or other personal attributes. The lack of protection also contrasts strongly with that of China, which offers in its civil code a right of portrait.
This book chapter begins by tracing the American origin of the right of publicity as an independent cause of action. It underscores the difference between this discreet right and the type of protection available in Commonwealth jurisdictions. The chapter then discusses the leading case in Hong Kong, Lau Tak Wah Andy v. Hang Seng Bank Ltd. The chapter explores why Hong Kong has yet to offer strong protection of personality rights despite having fertile conditions for such development. The chapter concludes by focusing on three areas of influence that may impact the future development of personality rights in Hong Kong.
Yu concludes that -
Although there has been a growing trend to harmonize intellectual property standards throughout the world, personality rights are unlikely to be the subject of such harmonization. The reasons are twofold. First, countries remain deeply divided over how a celebrity‘s identity is to be protected. In light of these deep divisions, it is unlikely that an international consensus would emerge in the near future. Indeed, international harmonization has been slow even in areas where there are greater international consensus, such as the promotion of access to essential medicines in less developed countries and the protection of traditional knowledge and cultural expressions. n this area of law, one can only imagine how limited harmonization will be in the near future.
Moreover, one of the major champions of international harmonization — the United States — has yet to attain consensus over the protection of personality rights at the national level. To date, the strength and scope of protection under state rights of publicity vary from state to state. Although there have been proposals calling for the establishment of a federal right of publicity statute, those proposals have yet to be adopted. Without a federal right of publicity, it is unlikely that the United States would seek greater international harmonization in the near future.
Although Hong Kong has many successful entertainers and entertainment products, it has yet to offer strong protection of personality rights. The lack of such protection provides a useful case study to understand the development of intellectual property protection in the Asia Pacific region. Through the historical British roots of Hong Kong intellectual property law, the study highlights the path-dependent nature of intellectual property development as well as the challenges confronting the establishment of new intellectual property rights. The limited protection in Hong Kong also foreshadows the larger debate about the future of protection for brands and reputation in the Asia Pacific region.
While it remains unclear whether Hong Kong will eventually offer stronger protection of personality rights, there is no doubt that the issue will deserve our close attention in the near future. There are, indeed, strong reasons both for and against greater protection of personality rights in Hong Kong. Hopefully, this chapter will provide the much-needed groundwork to help us understand better the need for and challenge in strengthening protection in this area.
