Post by Patrick Goold
Last month it was revealed that Facebook shared users’ personal information with political consulting firm, Cambridge Analytica, and that such information may have been used to influence the US 2016 presidential elections and the UK Brexit vote. For many, this event has highlighted the need for stronger privacy laws in the twenty-first century. Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press, 2018) is therefore as timely as it is fun to read. In a monograph packed with illuminating re-readings of leading cases alongside engaging celebrity stories, Rothman argues that a modified right of publicity could be an important tool for protecting individuals’ privacy interests in the Information Age.
The rights of privacy and publicity are sometimes seen as opposites. Privacy protects shrinking violets who wish to avoid the public’s gaze, while publicity protects the interests of celebrities who seek out the limelight, or so it is said. Indeed, some claim that the right of publicity was created precisely because privacy law failed to adequately protect the interests of public figures. According to a common historical narrative, courts frequently rejected celebrities’ attempts to restrain the use of their names and images under privacy law. Privacy being the last thing any celebrity really needed, judges found privacy laws to be the wrong vehicle for protecting valuable celebrity personas; and thus there existed a need for a new and separate cause of action.
In The Right of Publicity, Rothman shows the privacy-publicity divide is often an overly simplistic and unhelpful dichotomy. To begin with, the claim that a separate right of publicity was required to protect celebrities’ interests is historically incorrect. The original right of privacy that emerged in the late nineteenth century was regularly employed by public figures (ranging from the likes of inventor Thomas Edison, sportspeople such as golfer Jack Redmond, and politicians such as J.P. Chin) to restrain unwanted publicity. Furthermore, this right was used by individuals to prevent actions that we would now consider commercial misappropriation of name and likeness. Early privacy cases restrained the non-consensual use of an artist’s photo on an advert for life insurance, the use of a famous physician’s signature on quack medicinal pastilles, and there was uproar when society woman Mary M. Hamilton Schuylyer could not use privacy laws to prevent the use of her image on a commercial for flour.
The true story behind the right of publicity’s origin is far more interesting than the conventional one; it is also, however, far more worrisome and troubling. The right of publicity was created not to adequately protect celebrity interests, but to protect the interests of Hollywood and other big businesses. The new right of publicity enabled businesses to commodify celebrity personas. Whereas the right of privacy was a non-transferable personal right, the right of publicity was, and remains, a transferable property right. Hollywood and others pushed for the right of publicity’s adoption because doing so enabled them to acquire exclusive rights in celebrity personas, and thus monopolize the commercial exploitation of public figures’ identities.
There is perhaps no better illustration of the commodification of publicity than the case which some claim coined the term “right of publicity” – Haelan v. Topps Chewing Gum. Haelan and Topps Chewing Gum both sold packets of chewing gum. These gum packets also contained collectable baseball cards depicting the names and images of famous baseball players. Haelan had contracts with a number of baseball players allowing Haelan to use the players’ images on their cards; Haelan sued Topps to prevent Topps from distributing cards containing the images of the same players. In response, Topps’ argued that the contracts between Haelan and the players were merely waivers of liability, permitting Haelan to use the images free from any liability under privacy law, but which did not transfer any right to Haelan which could ground a lawsuit, owing to the fact that privacy rights were non-transferable. But the court rejected this argument, finding that the players had, in addition to privacy rights, transferable publicity rights, which had been acquired exclusively by Haelan, and which could be used to restrain Topps’s actions. Far from protecting the interests of the baseball players (who played a paltry role in the case), publicity law’s leading case was a victory for big business.
The commodification of publicity, and the divorce from privacy, has however led to deeply concerning consequences. In particular, the alienability of publicity rights means that the publicity rights holder can restrain the use of the acquired personas even by the celebrity herself! For example, pop-star Ariana Grande is a committed vegan. Imagine that, as an aspiring singer, Grande transferred her publicity rights, under an exploitative contract, to a manager in exchange for her first record deal. Later, Grande wishes to endorse a pro-vegan campaign by PETA (the People for the Ethical Treatment of Animals). Under the agreement, the manager could not only restrain Grande from endorsing PETA’s campaign, but could also use her name and image to endorse products Grande would hate, such as processed lunch meat. This situation would seem counterintuitive at best. One’s name and image are important aspects of one’s person, and as such, one should generally be able to control how they are used. But yet that is not the case, as actor Brooke Shields discovered. Shields attempted to use the right to restrain distribution of sexually explicit photographs taken of her as a minor, but failed to do so because her mother had assigned away the right in gross. Such situations seem to be in direct contrast to the personal autonomy norms that the right should serve in the first place. And the problems with the commodified right of publicity do not stop there. Once conceptualized as property, the right became a type of intellectual property. And, like other IP laws, uses of the right to restrain speech (such as Grande’s speech in the PETA example) are subject to surprisingly lax First Amendment scrutiny (under what some call the “IP Exception” to the First Amendment).
It is time to put the right of publicity back on track, Rothman argues. The right of publicity should be reintegrated into the fold of privacy. No longer should the right to control misappropriation of one’s persona be a transferable property right, but instead it should be a right designed to uphold the personal autonomy and dignity of the underlying identity holder. No longer should publicity be a “celebrities right” and privacy a private-persons right. Instead we should recognize that all individuals have, in addition to a right to control private information reaching the public, a right to control how our public personas are used. Once this is achieved, then individuals will have a powerful tool to address many of the privacy challenges of the twenty-first century. No longer would Facebook and other media giants, for example, be able to claim ownership of users’ name and image for advertising in their terms of service. Still, personally I would have liked to see Rothman’s book provide a more detailed roadmap on what types of privacy harms the reconceptualised publicity right would prevent.
Rothman’s story about the commodification of personality is fascinating and has particular salience for New Private Lawyers. One of the most important functions of private law jurists is to debate what property is and what goods should be subject to property rights. Rothman’s argument that commodified personality hinders personal autonomy and self-realization demonstrates how in modernity some aspects of our lives have been unduly propertized leading to unsavoury consequences. This provides an interesting illustration of what political philosopher Michael Sandel calls our “market society.” That is, while a market economy is an important tool for organizing the efficient use of resources, our current market society transforms some aspects of life into marketable goods and in turn threatens other important human values. I think a major role for today’s breed of private lawyers is to engage with Sandel’s, and Rothman’s, argument that we are too quick to turn some aspects of life into property.
However, I would caution against fully incorporating publicity rights into the rubric of privacy. I agree that publicity rights should uphold the same personal autonomy values as privacy law. I also agree private individuals should enjoy publicity rights, just as celebrities should enjoy privacy rights. However, in my mind, privacy rights should enable one to control the use of information that one wishes to keep truly private; whereas publicity rights should enable one to control how aspects of one’s life voluntarily placed in the public domain should be used. For example, if Ariana Grande’s bank details are leaked, that should be considered a privacy violation; whereas the use of her name and image to sell lunch meat should be a publicity violation. Such separation is desirable for “second order” reasons. While both privacy and publicity laws should facilitate personal autonomy values, the rules required to achieve those values would seem to be slightly different in the two different contexts. An illustration is the scope of the First Amendment defence. Arguably free speech concerns should be given much greater weight in the publicity context than in the privacy one. If someone leaks Grande’s bank details, and claims the ability to do so on free speech grounds, their argument should be water-tight. Whereas if someone wishes to write an article critical of Grande’s hypothetical endorsement of PETA, the scope of the First Amendment defense ought to be much greater. A certain degree of conceptual separation between privacy and publicity rights is necessary to enable such legal fine-tuning.
Lastly, if anyone wants any additional reason to read Rothman’s book, I’ll leave you with this thought: when was the last time you read a law book complete with stories about O.J. Simpson, Elvis Presley, Michael Jackson, the cast of Cheers, and President Grover Cleveland?