The frequently uttered and simplistic dichotomy—that privacy is about protecting the shrinking violets of the world, while the right of publicity is about protecting those who seek the limelight—was never true, and does a disservice to both those who wish to avoid publicity and those who seek it out. Actors do not want videos of them changing in a hotel room distributed online, their children followed, or their images slapped onto billboards or used in television commercials without their permission. This is not necessarily because they want to be paid for such uses, but because such uses are upsetting and disturbing, can destroy their reputations and ability to author their own identities, and turn them into puppets with others pulling the strings.
Nor do those of us who wish to live less public lives want to hide in our homes. We take walks, post family photographs to Facebook and Instagram, blog and tweet about our experiences, create YouTube channels showing how to prepare various recipes or master a video game, and leave traces behind when buying books on Amazon. These acts do not mean that private figures wish to cede the right to control how our names, likenesses, voices, and other information about ourselves is used by others. We all live our lives in public. But by doing so we should not become public property.
Privacy law at its origin was capacious enough to encompass our public lives and to evolve with a society that increasingly viewed the sharing of a photograph not as mortifying but as commonplace. But the law did not remain stagnant, and while privacy law and society developed, the common law (judge-made law) was moving in a different direction, largely based on myths about privacy law and misleading claims that privacy law did not adequately protect public figures who sought to commercialize their identities. It was this claim that purportedly led to the split of the right of publicity from the right of privacy—but, in truth, the primary difference between the two rights was whether the right could be transferred and taken away from identity-holders and sold to corporations and others.
After the shift to the right of publicity took place, the myths about the differences between it and the right of privacy spread, and a cramped understanding of privacy law emerged—one focused on private figures, seclusion, secrecy, and injured feelings, rather than on the broader notions of autonomy and dignity that had reigned over the first sixty to seventy years of privacy law. Privacy, or the “right to be let alone,” turned into something small and narrow. The true story of the evolution of the right of publicity has largely become lost in the mists of time. This book reveals the right of publicity’s origins in and continued synergies with privacy law, and by doing so provides us with a way to avoid the dark side of today’s right of publicity, without losing its ability to protect individuals. It also provides a path to reimagining what privacy means in our ever more public world.
The right of publicity can be a valuable mechanism for addressing a variety of twenty-first century concerns about uses of people’s images. But, despite the many benefits of having a right of publicity, its current incarnation comes with a host of dangers. The right of publicity limits what the public can say about public figures, even dead ones, and can bar the public from making sculptures, T-shirts, and posters honoring the recently deceased, such as Prince, Carrie Fisher, Robin Williams, and Muhammad Ali. It can block (and has blocked) the distribution and sale of busts of civil rights heroes, like Martin Luther King Jr. It has prevented video game makers from accurately depicting football players on historical team rosters, and television networks from using clips of their own broadcasts. The right has led to liability for comic book authors who name characters after their favorite hockey players, and a payout by the nightly news for showing a fifteen-second clip of a performer at a local fair. The right has blocked television and movie producers from making or licensing derivative works based on their copyrighted works, such as action figures, movie posters, and robots that remind people of fictional characters. The right can stop businesses from accurately reporting that celebrities are wearing their clothes or handbags or jewelry, or eating in their restaurants.
Perhaps worst of all, under many state laws, the right of publicity is treated as a fully transferable property right, meaning that your own name, likeness, and voice could be sold, given away, or taken by someone else―forever. Some models, actors, and recording artists have assigned their rights to managers and companies that can now use their names and images without those individuals’ additional permission, and even block them from appearing in public or making endorsements of their own choosing. The NCAA has claimed that student-athletes assigned (gave) their rights over their names and likenesses to the NCAA in perpetuity. Reality television producers have asked contestants to sign over their rights to their names and likenesses and life stories to the producers or production companies as a condition for participation on the shows. Both Facebook and Twitter have claimed to be able to use your name and picture to endorse and advertise products, and even on products, like trading cards. Social media sites’ ever-changing terms of service (which you agree to simply by continuing to use their services) could do far more than this if the right of publicity is transferable―Facebook could become the owner of your own name and image in all contexts, not just on its website. Parents could transfer their children’s rights to their names and likenesses, and nothing in the law provides for children to get those rights back, even when they turn eighteen. For those with more lucrative public personalities, if the rights are transferable, then creditors and ex-spouses could take ownership over (at least part of) their identities and, as a result, control and monetize them, without regard to whether the underlying person would approve of such uses.
Follow Prof. Rothman on Twitter @profrothman.
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