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.