The “Traditional” Right of Publicity versus “Modern” Privacy Law
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Privacy, Technology and Perspective
The “Traditional” Right of Publicity versus “Modern” Privacy Law: This week, let’s consider how the traditional “Right of Publicity” confronts modern privacy law.
What’s the “Right of Publicity?”: Ever since 1898, when Brandeis and Warren published their pathfinding law review article “The Right of Privacy,” the right of an individual to control at least some aspects of their own likeness and identity – often called “The Right of Publicity” – has been widely recognized.
The contours of this common-law right, however, have never been fixed and are fiercely debated to this day. An early paradigm (the right to control one’s own “endorsement” of products) arose when a woman discovered the image of her face on a food container. Professor Prosser expanded the analysis in his 1947 article defining what became known as his “Four Torts of Privacy,” and the rise of Elvis and similar “celebrities” from about the late 1950’s on further spurred its development.
Now the “Right of Publicity” – generally thought to be a person’s right to control the commercial exploitation of her own name, likeness, and identity – is widely recognized and even codified in some states, though its contours are still wildly in motion. You can read more about “The Right of Publicity” by clicking on the following link:
https://www.law.cornell.edu/wex/publicity
Technology drags the Right of Publicity along with It: The Right of Publicity was first conceived (or at least publicized) when photographs started appearing in newspapers and on product containers without people’s advance permission. It then expanded in the burgeoning, advertisement-driven commercial age after World War II. Eventually, television led to an explosion of interest in the Right. Now, the Digital Revolution is dragging the Right of Publicity along with it. And soon, we expect the Right of Publicity to surface in the metaverse – hold us to that prediction!
“Modern” Privacy Law as a Continuation of an Old Debate: We think that in a sense, today’s exciting, new privacy debates aren’t all that new. They’re a continuation of developments in the Right of Privacy – which, with the benefit of hindsight, are driven by new technology. We rarely see the link made between the “Right of Publicity” (which somehow seems so old and…dusty, somehow) and “Privacy Rights” – and yet we are coming to believe that they’re the exact same thing, especially when on the exact issue of a person’s right to control the commercial exploitation of her own identity / personal information.
A Recent Case: In his excellent Technology and Marketing Blog, Professor Eric Goldman notes the recent California case of Brooks v. Thomson Reuters, noting that Thomson Reuters claimed it did not make a “commercial endorsement” of the substantive information about the plaintiffs which it made available through one of its online services. In that case, the court agreed that Thomson Reuters simply made the plaintiffs’ information available (for a fee) without implying that the plaintiffs “endorsed” the information’s truth or value, along the lines of Perfect 10 v. Google or Cross v. Facebook. The court relied instead on Perkins v. LinkedIn and Fraley v. Facebook, saying it was Thomson Reuters who was posting the dossiers with plaintiffs’ personal information onto its platform and was thus “using” their identities – which might permit a “Right of Publicity” claim whether Thomson Reuters was implying the plaintiffs endorse such a use or not.
For Professor Goldman’s interesting analysis, click on the following link:
Maybe it’s not all that different: Surprised to see your picture on a food container (1898)? Or the details of your life in a data broker’s dossier (2021)?
Are they all that different? It’s food for thought (hopefully served in an unblemished container).
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠