(Part 2) Serving a Self: Reading the Law into Popular Conceptualizations of the Right of Publicity

Chris Crum - 2017 Lumen Summer Intern on August 02, 2017

This is part 2 of an ongoing series on right of publicity notices on the Lumen Database. Last week’s part 1 addressed three questions: first, what options are available to those who seek to control the use of their name, image, and likeness on the Internet, second, is it reasonable to assume that there is some common, colloquial understanding of what protections the right of publicity affords an individual, and third, why would a right of publicity notice be a potentially superior option to defamation notices, copyright notices, or informal mechanisms of securing control. Several arguments were advanced in relation to these questions. For one thing, it is reasonable to assume that a desire for control over how one’s image, name, and likeness are used online is fairly ubiquitous, for another, extant options for securing said control are frequently in-apt unless they are abused. Ultimately, one may end up turning to the right of publicity as an option for securing control.

In the following (viz. part 2), several related questions will be addressed, primarily, what that common understanding conceptually looks like based on notices submitted to Lumen and, additionally, how closely that common understanding tracks with actual law. Part 2 concludes that the common understanding of what the right of publicity is, perceptually serves the needs of individuals seeking control, but is not based in statutory or common law.

Part 3, which remains forthcoming, will address the broader question, would it be possible and/or justified to extend the protections of the law so that it tracks more closely with the commonality of desire for control and popular understandings of the right of publicity.

Part 2

In general the desire for control over how one’s name, image, and likeness are used online means the desire for an ability to decide beforehand when, where, how, and in what context such parts of one’s persona are used. No doubt if you’ve ever tried to police your online presence ahead of a job interview, college application deadline, or date, you can understand and even possibly admit to such a desire. The common understanding of the right of publicity is fairly far removed from the legal concept but does provide individuals with the perception of such control.

After randomizing a list of right of publicity notices submitted to Lumen and analyzing that list, there appear to be three facets that seem to tie together a colloquially understood right of publicity.¹ The first is that the right transcends borders.Notice 12491475 notes that the conflation of two names in two separate geographic areas has created an economic loss (not unlike the standard for trademark infringement) for his/her/their business. Likewise notice 13914316 notes Florida law (where the right of publicity is statutorily recognized) in support of a case outside of Florida. This understanding lends itself to a popular conception of the right as inherent and not constructed, which is to say, a conception of the right as naturally part of one’s status as a human being and not something created by the legal system. As such, many of the notices are brief and I speculate that one reason they are particularly brief is because the submitter believes that is all that is necessary. In other words, the submitter believes that the power of the right of publicity is such that all one need do is invoke it to satisfy one’s desire for control over one’s name, photo, etc. Notices 14184316, 14133234, and 14133233 fit this pattern.²

The second facet is that it makes one’s name and photo (importantly one’s photo taken by anyone) one’s property. This facet of conceptual understanding is best drawn out by the clear belief displayed by a majority of the notices examined that one’s name and photo can be controlled regardless of any user policies put in place by service providers or webmasters. That one is afforded the ability to use one’s property as one so chooses is deeply ingrained in American liberal philosophy and so common understandings of property in America. Notice 13314136 is a good example of this belief that one’s name and photo is property under the right of publicity. In it, the submitter argues that despite Google+’s clear terms of use, they want their picture removed from the public facing side of the platform. Similarly, notice 13331728 stridently argues for the removal of their name from all of Google’s services not just because they wish to be anonymous, but also because, in their view, the use of the name was unconsensual. Terms like unconsensual surely indicate that the individual in question feels their privacy was breached.³Yet, they also, by way of counterfactual, help to illustrate what specifically is wrong about the breach. It is not the breach itself but rather it is the breach’s unconsensual nature, which implies, that if the breach was consensual (or contractually arranged) then the degree of the problem would be lessened. If privacy was the only concern, then consensual sharing of the information would never occur and said individual’s privacy expectations would be honored. Such a conceptual understanding mirrors that common of property, which is exchanged through consensual, contractual relations in which both parties understand that they are party to said contract.

The third facet is that it applies to any type of “persona,” not merely one’s real, tangible person. Thus, there appears to be an assumption that the right of publicity protects one’s username, more or less one’s online “persona” from unconsensual use. Notice 13197750, for instance, asks that the submitter’s personal information in the form of their username be removed from competing sites as a, “violation of [their] image.” The extension of the right of publicity to artificial, “personas,” is an interesting twist. In a way, it makes sense since it certainly seems that a large amount of human interaction increasingly occurs online and so the protections the right of publicity affords in popular understandings are increasingly valuable in online spaces. Moreover, it might be the case that popular understandings of the right of publicity have been catalyzed in and by such online places.

It seems reasonable to assume that a common method of creating a takedown notice on a website like google.support, if one is unfamiliar with how to submit a takedown notice, is to look at notices previously submitted and publicly posted to a clearinghouse like Lumen. As such, repetition of these conceptual facets has likely conspired to snowball what may have originally been a mistaken understanding or wishful thinking into a more and more common and credible (from the perspective of the layperson) body of legal notions.⁴How many legal laypersons choose to research the statutory or common law basis of the right over repeating the understanding present in other notices? I would imagine the answer is very few given the time it would take to do the former compared to the latter.

That makes it somewhat unsurprising that the three facets listed above do not appear to be based in any actual American law. First of all, 38 states recognize the right of publicity by common law and only 22 recognize it by statute, which means the legal concept does not transcend state borders, is not recognized by the federal government, and is not treated as akin to a natural right.⁵ Second of all, historically the right of publicity was meant, more often than not, to be a remedy for the economic loss one might suffer to one’s personal brand if one’s name is used without consent, for instance, to sell a product one does not actually wish to be associated with. Like copyright’s relationship to intellectual and artistic innovation, the right of publicity is meant to foster and reward investment in one’s reputation by protecting the fruits of one’s labor from being used to satisfy the economic incentives of someone else.⁶

There are a number of canonical, landmark cases that have built up the precedent that undergirds the legal understanding of the right of publicity. Even in states that recognize the right in legal statutes, these cases frequently formed the impetus to legislate. The first of these cases is Haelan Laboratories Inc. v. Topps Chewing Gum in New York in 1953. The plaintiff, Haelan Laboratories, asserted that Topps Chewing Gum had deliberately entered into a competing contract with a particular baseball player to use his image to sell chewing gum when that player had already had an exclusive contract with Haelan. The defendant, Topps Chewing Gum, argued that their contract with the baseball player amounted to nothing more than a release of liability, but that argument was rejected by the court, which found, in an important moment in the history of the right of publicity, that:

A man has a right in the publicity value of his photograph, i. e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made "in gross," i. e., without an accompanying transfer of a business or of anything else. Whether it be labelled [sic] a "property" right is immaterial; for here, as often elsewhere, the tag "property" simply symbolizes the fact that courts enforce a claim which has pecuniary worth.

This right might be called a "right of publicity." For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant, which barred any other advertiser from using their pictures.⁷

As such, the legal argument made by the defendant failed. A person may indeed have a legal interest, based in economics, in the publication of his/her/their picture other than their right of privacy and so a release of liability was not exculpatory.

After the instantiation of the “right of publicity” in New York, Zacchini v. Scripps-Howard Broadcasting in 1977 in Ohio brought the right of publicity to the legal mainstream. Hugo Zacchini had created a human cannonball act with which he toured Ohio. At the county fair in Burton, Ohio, Zacchini’s performance, in contravention to his express wishes, was filmed by a reporter from the Scripps-Howard Broadcasting service based in Cleveland. Zacchini alleged that the availability of the film clip decreased attendance at his shows. His suit made it all the way to the Supreme Court which granted certiorari to determine whether or not the First and Fourteenth Amendments immunized Scripps-Howard from infringement of Zacchini’s right of publicity. Ultimately, the majority decision penned by Justice Byron White, determined that the First and Fourteenth Amendments did not protect Scripps-Howard from liability for infringing on Zacchini’s right of publicity.⁸

After the Zacchini case, a number of “impersonator” cases in the late 1980s and early 1990s parsed out some of the implications of the decision. In each case, the defendants based their legal arguments around the First Amendment and in each case their arguments were rejected.⁹ In one interesting case, Tom Waits sued Frito-Lay over a 1992 Doritos advertisement in which a Waits’s impersonator sang a voice-over jingle for a new flavor of chip. Relying on the precedent of Midler v. Ford Motor Co. from 1989, Waits’s legal team successfully argued that the well-known, distinctive parts of one’s persona (i.e. Waits’s gravely singing voice) ought be protected under the right of publicity recognized in California law.

In light of cases like the Waits case, one wonders where exactly the line should be drawn as to what is considered well known and distinctive.¹⁰ Ultimately, it is the likely location of that line that precludes the average person from claiming the control over their own name, image, and likeness they seek under the right of publicity. The average person just is not well known enough or distinctive enough to qualify for protection from economic harms that would occur via the unwanted use of their name, image, or likeness.¹¹

¹The process of randomization was achieved by manually typing in a list of about 400 notices generated through an administrative search for "right of publicity," transferring that list to an Excel file, and using a random number generator to generate a final list of numbers corresponding to notices in the Excel file. A list of 100 notices so selected was analyzed for the purposes of this investigation. 100 notices was the closest approximation of a reasonable sample size that the limited time constraints of the summer afforded. Admittedly, that leaves hundreds of thousands of notices for further review. On a separate note, about 1 in 3 notices from the list of randomized notices listed as right of publicity notices instead detailed unconsensual intimate imagery, HIPAA violations, or copyright infringement. Though that might speak to the shotgun approach individuals often take to removing content online, they were ignored here since they call upon different conceptual frameworks and different law.

²An alternate reason could be that the submitter considers the information so sensitive that they are unwilling to write it into the body of the notice. If that is the case, I think that speaks to a broader point from part 1, which was that the desire for control and the belief that control is naturally due is deeply rooted in many persons.

³Such language is echoed in a number of other notices including notices 12664691 and 12235936.

⁴It is not terribly difficult to find right of publicity information on google.support. From the time I searched, “Google right of publicity,” to the moment where I arrived at the submission page on Google Support, about 13 minutes (12 minutes 56 seconds to be precise) elapsed. So if one rounds up, it seems reasonable to imagine that it takes about fifteen minutes for the uninitiated to find the right of publicity notice submission page on Google, which, since it is not an inordinate amount of time, would not likely be a barrier to knowing about the right of publicity.

⁵The states that recognize it in legislation are as follows: Alaska, Arizona, California, Florida, Hawaii, Illinois, Idaho, Kentucky, Massachusetts, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin.

⁶Jonathan Faber, “Indiana: A Celebrity Friendly Jurisdiction,” Res Gestae 43 (2000). Res Gestae is a publication of the Indiana State Bar Association.

⁷“Haelan Laboratories, Inc. v. Topps Chewing Gum,” Justia U.S. Law, accessed July 31, 2017, http://law.justia.com/cases/federal/appellate-courts/F2/202/866/216744/#fn1.

⁸See Douglas G. Baird, “Human Cannonballs and the First Amendment: Zacchini v. Scripps-Howard Broadcasting Co.,” University of Chicago Law School: Chicago Unbound (1978): 1185-1209.

⁹See Christopher Menjou, “Waits v. Frito-Lay, Inc. the Ninth Circuit Rides the Right of Publicity Down a Slippery Slope,” Loyola of Los Angeles Entertainment Law Review (1993): 173-198.

¹⁰Ibid, “Waits v. Frito-Lay, Inc. the Ninth Circuit Rides the Right of Publicity Down a Slippery Slope.”

¹¹As this is an ongoing project, edits may be made to this version at a later date. If you have suggestions please email them to ccrum@bates.edu. They would be much appreciated.