运动员形象权法律保护制度反思与完善

Reflection on and Perfection of the Legal Protection System of Athletes’ Right of Publicity

从人格权中独立出来的运动员形象权属于无形财产权,在民法中属于民事利益,具体内容包括形象利用权和形象禁用权。运动员形象权除了受当事人许可或转让合同的限制外,还受附带使用原则、权利穷竭原则、言论自由和新闻自由的限制。我国形象权制度尚付阙如,现有立法也受限于调整范围无法为之提供妥善的保护,导致运动员形象权归属不明、收益分配不合理。我国应在《民法总则》中规定形象权,再由国家体育总局制定统一的《运动员形象权保护规定》,明确运动员形象权概念、归属、内容和侵权救济措施。同时,确定运动员形象权收益的分配比例。非举国制培养的运动员,利益分配由运动员与俱乐部协商确定;举国制培养的运动员,则通过集体合同与体育主管部门约定最低的利益分配比例。

Athletes’ right of publicity,which is independent from the right of personality,is an intangible property right and is a civil interest in civil law. Its specific contents include the utilization right of publicity and the forbidden right of publicity. Athletes’ right of publicity is not only restricted by licensing agreement or agreement of transfer among the parties,but also restricted by the principle of collateral use,the principle of right exhaustion,freedom of speech and freedom of the press. In China’s legal system,the right of publicity is not embedded,and the existing legislation is limited by the scope of adjustment,so it cannot provide proper protection,which results in the unclear ownership of athletes’ right of publicity and unreasonable income distribution.China should stipulate the right of publicity in the general provisions of civil law,and then the General Administration of Sport of China should formulate uniform regulations on the protection of athletes’ right of publicity,which will clarify the concept,ownership,content and tort relief measures of athletes’ right of publicity. And through the department regulations,it is possible to determine the proportion of income distribution of athletes’ right of publicity. Meanwhile,for athletes who are not trained by state,the distribution of benefits is determined by their negotiation with the club. As to athletes who are trained by state,the minimum benefits can be decided based on their collective contracts with government departments in sports.