A brand New Image? Should Personality Rights be
The privacy aspect of personality rights
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- The situation in the US
- Critique for the Standard Arguments for a Right of Personality
- Moral Arguments
- 1. Labour Justification
- 2. The Prevention of Unjust Enrichment
- Economic Arguments
The privacy aspect of personality rightsThe principal concern analysed in this article is the commercial interest in publicity or image, however the protection of privacy also needs to be briefly examined. In the United Kingdom there is no sui generis right of privacy,37 though it is becoming more and more recognised. 38 In 1990, when Kaye v Robertson39 was decided, there was little if any protection of privacy in the UK. Freedom of the press outweighed all other interests, and there were no torts available to protect an individual’s private sphere apart from an action of breach of confidence.40 However, with the coming into force of the Human Rights Act 1998 the boundaries have moved. The courts have used section 12 of that Act as a means by which to develop notions of privacy but have done so by reference to the action of breach of confidence. 41 It is not yet clear whether the courts will develop a free standing right of privacy or tort of invasion of privacy. It has been said that privacy and publicity can be seen as the two sides of a right of "personality",42 and while Continental jurisdictions tend to separate questions of privacy and questions of publicity, the human rights component of the latter are not seen to be too important. The case of Douglas v Hello! suggests that the English courts mix the spheres, while in American law the development of privacy and publicity rights are clearly linked. Undeniably the acceptance of privacy protection acted as an important catalyst in the promotion of publicity rights in America.43 Prosser, the leading American tort commentator of his day, included "appropriation of the plaintiff's name or likeness" as one of his four torts of privacy in his influential analysis of the embryonic privacy right in America. Thus American and continental experiences show that what are originally identified as privacy concerns can prompt the separate development of publicity rights. So, with the UK creeping closer and closer to a right to privacy, will this eventually lead to a full blown personality right? The situation in the US On the other side of the Atlantic, publicity rights have grown into a considerable body of law. It is perhaps not that surprising that the US was the first to acknowledge the right of well-known individuals to protect their names and images.44 As Thomas McCarthy tells the story, 45 the right of publicity was ‘carved out of the general right of privacy’ – ‘like Eve from Adam's rib.’ However, it has since been observed that the right of publicity was created not so much from the right of privacy as from frustration with it,46 and that the whole matter was negotiated by courts and commentators with something less than divine ease and grace. The right of privacy,47 received its initial legal recognition in connection with the unauthorized advertising use of names and likenesses,48 and when celebrity plaintiffs first came to the courts in the 1920s and 1930s seeking relief from unauthorized commercial appropriation on privacy grounds, the reception was generally cool and uncomprehending. A number of courts held simply that celebrities had waived their rights of privacy, 49 not only as to news coverage and comment but as to commercial appropriation as well, by assuming positions of prominence and visibility.50 By the 1930s, then, it was already evident that if a celebrity had only a right of privacy against unauthorized commercial use of her identity she would not be able to realize maximum benefit from her publicity values.51 The decisive legal breakthrough for this new economic conception of fame came in 1953, in Haelan Laboratories, Inc. v. Topps Chewing Gum Inc.52 However, the Haelan Laboratories opinion contained not a trace of moral or conceptual uneasiness about the commodication of personality. It seemed natural and obvious to the court that celebrity personas should be bought and sold in the market like any other. Nevertheless, despite an initial reluctance to embrace this new right, helped along by some kind words from Professor Kalven,53 Nimmer54 and later from the Supreme Court,55 ‘the right of publicity’ gradually began to win widespread judicial and scholarly acceptance. Today over 30 US states acknowledge some form of image or publicity right, either under the common law or based in statute. The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness,unreasonable publicity and false light.56 In other states the Right of Publicity is protected through the law of unfair competition. Actions for the tort of misappropriation or for a wrongful attempt to "pass off" the product as endorsed or produced by the individual, help to protect the right of publicity.57 Critique for the Standard Arguments for a Right of Personality As already noted. there has been pressure from all sides appealing for the legal protection of ‘publicity’ or ‘image’ rights here in the UK. William Cornish58 notes that recent litigation has led to calls “for reconsideration of whether there ought to be a specific ‘personality right’ introduced into English law”. In the US there is a solid consensus within the American legal community that the right of publicity is a good thing,59 however does this mean that the UK should follow down the same path? Within the UK, there has been surprisingly little convincing justification for a need of personality rights, with many commentators rarely arguing further than the issue that the law is ‘unclear’ as it stands, and therefore a change must surely be needed.60 It would certainly appear that the tone of much academic and judicial writing is that of undeniable impatience. Thus, if English law is on the brink of developing image rights in some shape or form, it becomes critical to analyse the justifications for such a development, and assess whether these arguments are strong enough to justify any ensuing restrictions that would be placed upon our society. Broadly speaking, the justifications advanced in support of personality rights fall into one of three categories: ‘moral’ arguments, ‘economic’ arguments, and ‘consumer protection’ arguments. Moral Arguments In today’s society, it is perhaps not unusual to learn that many are content to believe that a property right in identity is something a celebrity "deserves" simply for becoming famous. Many believe it is self-evident that the individual creator should have first the moral, and therefore legal, right, provided that she can meaningfully be said to have created the object, and not merely to have discovered it.61 However, these claims are rather curious. Fame, after all, is “no sure test of merit.”62 Is it not true that despite what once may have been the case, many become famous nowadays through sheer luck, criminal or grossly immoral conduct, or even involvement in public scandal.63 More to the point, even commercially marketable fame can be achieved in this manner, just take for instance Jade Goody,64 who has achieved celebrity (and millionaire) status, merely for her appearance in the Big Brother House.65 (Celebrities achieving fame in such a manner have since been dubbed ‘nonebrities’)66 Thus I am inclined to agree with Madow67 when he contended that being famous, by itself, does not make a person deserving of all the fruits of their fame.
In the TV world, the score seems to be no different; Jerry Seinfeld earned over $267 million in his most recent season of Seinfeld, 71 while Kelsey Grammer who plays Frasier on the sitcom of the same name is earning $1.6 million per episode.72 It may come as no surprise to hear that in 2005, Tiger Woods secured an incredible $87 million, and David Beckham $32 million.73 Surely this is enough? (Some may even say too much). Why should the law give actors and athletes a legal right that channels yet more money their way? Why not instead treat a famous person’s name and face ‘as a common asset to be shared, an economic opportunity available in the free market system’?74 It could in fact be argued that in the very process of achieving fame, celebrities call on a cultural tradition, and thus they, in themselves, become part of our cultural "commons". In Elvis Presley,75 counsel for Shaw76 described Elvis as having become an important part of popular culture whose name and image other traders might legitimately wish to make use of.77 Jennifer Davis78 comments that ‘the judgement appears to recognise a public sphere in which meaning is socially created and to which the public should have access’. She also noted that ‘it is the public which has endowed (Elvis) … with the celebrity which makes memorabilia carrying his name so popular’. 79 Hazel Carty argues that even those celebrities who achieve fame within their own context arguably "take on public meaning"80 or in themselves stimulate creativity and innovative/transformative use in others.81 Infringement on the Public Domain, or a Repression of our Free Speech and Cultural development? On what basis should we distinguish between objects that are subject to intellectual property and objects that are part of the so-called intellectual commons?82 Should persona in certain cases be recognised as part of the intellectual commons ‘owned’ by all humanity?83 To Peter Drahos, the ‘intellectual commons’ is an attempt to reserve some objects for common access and use, and thereby encapsulates the idea of an ‘objective world of knowledge’ from which people are not barred from gaining access by conventional (primarily legal), technological, or physical means.84 The distinction between intellectual property and intellectual commons raises significant political issues. Intellectual property is supposed to reward, and therefore encourage, investment in individual creativity and inventiveness,85 while protection of the intellectual commons is said to ensure that human knowledge and culture are reserved for common use and the enhancement of our existences within a community.86 So, what sort of limitations ought to be placed upon the use of an individual’s image? And what if they have become a ‘historical figure’?87 Should history be limited? It has been argued that both cultural development and free speech are also at risk by the acceptance of a personality right.88 In recent decades, various writers have observed that the law has moved more and more of our culture’s basic semiotic and symbolic resources out of the public domain and into private hands, 89 and that the same centralising process has been at work in the right of publicity arena. In his article, Madow explains that the judicial and academic rhetoric on publicity rights makes reference to “economic incentives,” “natural rights,” and “unjust enrichment,” the subtext, however, being control over the production and circulation of meaning in our society.90 David Wall illustrates this point in relation to the recreation of Elvis Presley after his death, where he asserts that intellectual property regimes operate at some level to impose restrictions on cultural production.91 Is it not true that free speech is threatened when the celebrity is enabled to impose his "preferred meaning,"92 because of his publicity right? By allowing personality rights in the UK, we would in effect be preventing alternative perceptions, and thus prohibiting interpretations which could be used for powerful social criticism.93 Some warn that “the increasing privatisation of the celebrity ... stifles cultural debate, deliberation and exchange of ideas”.94 Professor Sam Ricketson concurs with this stance, and notes that “public figures and images ... already command high respect and influence in our society: comprehensive protection for such things may, therefore, represent too great an imposition for a free market and a community committed to free speech to bear.” 95 A spate of recent articles in America has highlighted the concern over the ever-widening scope of their publicity right. The District Court in Cardtoons LC v Major League Baseball Players Association,96 in accepting a parody defence for the publicity right, noted that "when the law gives a celebrity a right of publicity ... it gives her ... power, ultimately, to limit the expressive and communicative opportunities of the rest of us". Publicity rights, in other words, move us even further away from what John Fiske has called a "semiotic democracy"97 - a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values. Overall, it is hard to disagree with Madow that “the proponents of publicity rights still have work to do to persuade us why these images should not be treated as part of our cultural commons, freely available for use in the creation of new cultural meanings and social identities as well as new economic values.”98 1. Labour Justification The labor theory is the basis most frequently and confidently advanced by courts and commentators, and as far back as 1954, Nimmer contended that a person who has “long and laboriously nurtured the fruit of publicity values,” who has expended “time, effort, skill, and even money” in their creation, is presumptively entitled to enjoy them himself. 99 Professor Thomas McCarthy sees the right of personality as “a ‘common-sense’, self-evident right needing little intellectual rationalisation to justify its existence.”100 At the heart of this justification is John Locke's labour theory of property. According to Locke,101 it is natural self-ownership which justifies property: “because we own our labour, when we mix it with the resources of the external world, we effectively appropriate those resources.” The person is seen to have a justifiable interest in the products of their mental or physical labour102 “which brought the celebrity entity into being.” A labor-based moral argument for personality rights presupposes that commercially marketable fame is ‘no mere gift of the gods’.103 But for any credibility to be afforded to this contention, a commercially marketable public image or persona must be attributable to any individual labour expended by that particular celebrity. Madow 104explains that judicial opinions generally treat commercially valuable fame as a crown of individual achievement, and that time and again, right-of-publicity plaintiffs are described by the courts as carefully “cultivating” their talents, slowly “building” their images, judiciously and patiently “nurturing” their publicity values, and working long and hard to make themselves famous, popular, respected, beloved.105 Closer examination reveals various flaws with this line of argument. Can we really define the persona as a product of labour, or is there more to it than that?106 Justin Hughes107 suggests that in reality, persona is not normally a product of labour: “While some politicians and rock stars may work on their public images, the world is full of famous athletes, heroes, and actors who do not labour to create their public images.” Could perhaps the persona then be viewed as a co-operative venture, produced by social demands, our own choices and labour, and our pre-given characteristics? Richard Dyer108 illustrates that while our genetic structure, which is beyond our control, may indeed provide the ‘raw material’ for our appearance, (and while we do have a fair degree of control over how we present ourselves), the actual labour of constructing the image is not necessarily that of the image-bearer alone.109 Perhaps most importantly of all, the commercial value of any persona is a function of the notoriety of the image product.110 According to British semiotician Judith Williamson,111 a star persona can enhance the marketability of the commodities with which it is associated only if it already means something to the rest of us. Williamson contends that marketing companies are able to utilize what celebrities ‘mean’ to the public in order to establish a desired meaning for its’ product.112 Williamson in effect illustrates the fact that in many cultures, the UK included, celebrity images are used to create and communicate meaning and identity, and it is only due to the ability of these images to convey meaning that they are able to enhance the marketability of the commodities with which they are associated. 113 Only when the media and the public take notice and attach significance to a personal image can it enter fully into the marketplace.114 Although the labour involved in creating a persona may be reducible, in part, to the labour of the particular celebrity (or to labour contracted by the celebrity), the ‘celebrity’ status, and hence the greater part of the commercial value of a persona, is attributable to the public domain.115 Thus it can be understood that fame is a "relational"116 phenomenon, something that is conferred by others.117 The media has a "structured need" and "relentless hunger" for celebrities: it needs them, and produces them, in order to carry out its own institutional purposes.118 A celebrity, in short, does not construct his own public image. He is not the sole and sovereign "author" of what he means for others.119 Consequently, contrary to the assertion of Professor McCarthy, a celebrity that cannot say he created his public image, cannot therefore lay a convincing moral claim to the exclusive ownership or control of the economic values that attach to it.120 2. The Prevention of Unjust Enrichment In judicial opinion and law reviews, right-of-publicity defendants are often described as “poachers,” “parasites,” “pirates,” or “free riders.”121 They are denounced for “misappropriating” values created by others, and for “reaping” where others have “sown.” 122 Of course, the notion of misappropriation also entails the prevention of unjust enrichment.123 But one thing that the rationale of unjust enrichment does not allow for is the fact that once celebrity status is “achieved”, does not “common sense” demand that the persona should not be used by others as inspiration for developing ideas?124 Take for example Brandeis, who in his dissenting judgment in the INS case125 felt that certain valuable intangibles should be “free as the air to common use.”126 Brandeis was not alone in his opinion, in fact, there are various commentators and judges who do not believe that the celebrity persona “belongs” to the celebrity.127 Madow highlights a few examples that can easily show the extent to which the law tolerates, (and he believes even smiles on), commercial “free riding.”128 He quotes one commentator who contends that a different rule “would have deprived the public of any alternatives in automobiles, ice cream cones, rubber tires and skyscrapers.”129 Hazel Carty draws parallels with this line of thinking, and contends that to see the successful image in entertainment or the media as a “stand alone” phenomenon in many ways misses the point of the celebrity as an icon.130 Entertainment or media celebrities are on the whole themselves derivatives,131 and it is fairly safe to bet that a great deal of celebrities have done some “borrowing” themselves. Cultural production is always (and necessarily) a matter of reworking, recombining, and redeploying already-existing symbolic forms, sounds, narratives, and images.132 As Spence133 rightfully points out, “[the Crocodile Dundee character was effective because] he stood on the shoulders of a whole tradition of bushman stereotypes that had been developing in Australian culture since at least the 1890's.”134 Viewed against the background of these developments in cultural theory and practice, the “moral” case for the right of publicity seems quite peculiar. Madow makes a very valid point when he asserts the fact that stars seemingly draw “freely and shamelessly on our culture's image bank” and yet try to “halt the free circulation of signs and meanings at just the point that suits them.” 135 Celebrities are seeking to enforce against others a moral norm that “their own self-consciously appropriationist practices openly repudiate”.136 Surely we do not need to bring such contradictory practices to our shores. Economic Arguments The more modern approach in Anglo-American literature for the justification of personality rights is generally to argue for their economic benefits, which it is contended, provide needed incentives to stimulate creative effort and achievement. Shipley137 argues that by protecting the right to publicity, the law “provides incentive for performers to make economic investments required to produce performances appealing to the public.”138 The theory is that by affording property rights the law provides an incentive to creative endeavour.139 But what evidence is there for such incentive effect? Are we confident that a publicity right would result in increased “innovation” or economic activity?140 Are property rights really necessary to motivate success? Many question whether publicity or image rights are seen by all concerned as purely additional benefits.141 In fact, even in the UK without a right of personality, celebrities still derive considerable income from their publicity values, and even if such a right never comes into fruition, celebrities would not be prevented from benefiting from of all the substantial income they currently earn through endorsements and merchandising. Another economic argument is that the publicity right leads to allocative efficiency. “Personality” or celebrity status is to be seen as a scarce resource, with over-use leading to diminished usefulness, and that by bestowing property rights there will be a more efficient allocation of resources. Posner believes that by allowing advertisers to use any image at will, the effect would be to “reduce its advertising value, perhaps to zero.”142 But as Madow points out here we are not dealing with a non-renewable natural resource like land.143 Nor, however annoying it is for the individual celebrity concerned, is the cost of free use significant, given, as Fraser points out, “a fairly plentiful supply of alternative resources exists.”144 Proponents of an economic incentive argument rarely consider the distributional consequences of recognizing a right of publicity. One such implication is that the right of publicity raises the price of celebrity merchandise and of advertising in general, thereby shifting wealth away from the great mass of consumers to a very small group of persons who are already very handsomely compensated.145 Secondly, the right of publicity widens the already immense income gap between "superstars" and others in the entertainment, sports, and related fields,146 and thirdly, the legal protection of publicity rights probably works to the systematic advantage of large over small advertisers, thereby increasing corporate concentration in the general economy.147 Bearing all this in mind, the personality rights ‘regime,’ should it be implemented, looks rather bleak. Directory: law -> resources law -> Jurisdiction of the Courts law -> Luther V. Borden: a taney Court Mystery Solved law -> ‘Intellectual Property Rights in Sport’ law -> The law of tort introduction a. 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