Intercontinental Identity: The Right to the Identity in the Louisiana Civil Code

• Author: Patrick N. Broyles
• Position: J.D./B.C.L. Graduate, May 2004, Paul M. Hebert Law Center, Louisiana State University
• Pages: 823-864

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Introduction

If Boudreaux, an energetic entrepreneur, snapped a picture of Thibodeaux, a renowned shrimper, and put Thibodeaux's picture on a billboard advertising Boudreaux's shrimp boil, could Thibodeaux recover against Boudreaux for the commercial value of his visage? If this were to have occurred in California, where right of publicity cases appear commonplace, the answer is a resounding "yes." Of course, one might be hard pressed to locate a single Boudreaux or Thibodeaux living in sunny California.¹ In Louisiana, however, where both surnames fill the telephone directories,² our legal question enjoys particular significance. But when Louisiana becomes the situs of the misdeed, the seemingly facile common law answer becomes muddied by a cloud of civilian theory and court silence on the issue.

To a common law scholar, the question of whether Louisiana would recognize a right of publicity would, in fact, appear easy; after all, at least twenty-eight states currently honor, via statute, common law, or both, a person's right to recover pecuniary damages for the unwanted commercial use of his identity.³ If so many other states recognize the right of publicity, then why would not Louisiana? Indeed, with the question posed in this fashion, the answer could prove just as trite: a Louisiana judge simply could hitch a ride on the coattails of common law jurisprudence and create an analogical commercial right to one's identity.

Fortunately, no Louisiana judge has yet to borrow the sister states' right of publicity, for to employ only the rough-fitting instrument of common law analogy to fashion so peculiar and intricate a right would be to crudely circumvent Louisiana's civilian legal tradition. But then again, to approach the question of whether Louisiana law recognizes a right of publicity from within the civil law presents much more difficulty than does simply borrowing the right from the common law. Thus, what seemingly would have beenPage 824 a simple answer of common law analogy now demands a daunting journey into civilian juridical relations, French legal tradition, and the jurisprudence of the Continental right of privacy.⁴

Without doubt, Louisiana's legal system supports identity rights of some sort. The right of appropriation privacy, the personal, extrapatrimonial counterpart to the commercial right of publicity, has been recognized by Louisiana courts (albeit in common law fashion), and more significantly, such a right finds support both in Louisiana's civilian legal tradition⁵ and even the Louisiana Constitution of 1974.⁶

The question, then, is not simply whether identity rights have a place in Louisiana law, but rather what is the nature of Louisiana identity rights. Specifically, this paper attempts to tackle this difficult question: does Louisiana law support a patrimonial right to the identity, that right commonly referred to as the right of publicity?

Part I of this paper provides the reader with an understanding of what many states commonly refer to as the right of publicity, and how this right complements the personal right of appropriation privacy. This section discusses the tumultuous history of identity rights as they have come to be in the United States, first as a right of privacy and then later as both appropriation privacy and the right of publicity,⁷ and provides a brief exemplar of current American identity rights jurisprudence.

Part II turns to civilian France, where courts have faced their own plight with patrimonial and extrapatrimonial identity rights. Examining the evolution of identity rights in French law and jurisprudence demonstrates the perplexing theoretical difficulties of what some courts have hinted to be a seemingly dual extrapatrimonial and patrimonial identity. Indeed, while a patrimonial right to the identity has been accepted in civilian France, the reasons for doing so, while always grounded in law, appear based more in rough practicality than in finely woven legal theory, thereby revealing the tensionPage 825 between traditional civilian taxonomy and common commercial practice.

Part III turns to identity rights as they exist under the European Union through article 8 of the European Convention on Human Rights and Fundamental Freedoms, the very article that gave rise to France's modern right to respect for private life.⁸ While the identity rights jurisprudence in the European Court of Justice and the European Court of Human Rights is far from prevalent, there nevertheless exists a strong argument that such courts would award both non-pecuniary and pecuniary damages for the misappropriation of one's identity.

Part IV closes with the right to the identity under Louisiana law. The same theoretical difficulties that have plagued the Continental commercial right in the image loom over a Louisiana right to the commercial value of one's identity, for Louisiana's legal tradition, like that of civilian France, long has viewed one's personal connection with the identity as an extrapatrimonial "personality right" incapable of pecuniary valuation.⁹ However, also like France, Louisiana has a codified right of privacy¹⁰ and a general tort provision,¹¹ each of which, at least in theory, could supply an independent legal basis for recovering both non-pecuniary, moral damages, and pecuniary commercial damages for a violation of one's right to be secure in his image. A few cases involving a personal, private right in one's image have passed through Louisiana courts,¹² though not one Louisiana appellate court has seen a plaintiff assert a right to the commercial value of his identity.

Nevertheless, Louisiana law indeed does support a patrimonial right to the identity. Though understanding the right requires a rethinking of real right taxonomy, the right nevertheless exists rather neatly within the traditional civilian classification system, living in harmony not only with Louisiana's legal tradition, but with the body of Louisiana's Civil Code.

I The Divergence of Privacy and Publicity in the United States

A Early Developments and the Initial Separation of the Rights

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The American notion of protecting an interest in one's identity first arose in the pivotal article penned by Samuel Warren and Louis Brandeis in the winter of 1890, entitled, "The Right to Privacy."¹³ While the authors were primarily concerned with preventing the public disclosure of embarrassing private facts,¹⁴ the carefully crafted language of the authors nevertheless extended the canopy of privacy over one's image.¹⁵

Twelve years later, the New York Court of Appeals in Robertson v. Rochester Folding Box Co. quelled any initial hopes in a common law privacy right.¹⁶ The ensuing public outrage in the decision prompted the New York legislature to enact the following year¹⁷ laws imposing criminal¹⁸ and civil¹⁹ liability for the unauthorized use of a person's identity for "advertising purposes or for the purposes of trade."²⁰ These early statutes remain largely unchanged and serve as fitting examples of the then current perception of identity as a fundamental aspect of privacy.²¹ Three years after the1902 New York Court of Appeals rejected a common law right to privacy, the Georgia Supreme Court in Pavesich v. New England Life Insurance Co. welcomed the right in what scholars have lauded as "the leading case" embracing the right of privacy.²² Like Roberson, Pavesich also dealt with a claim of the unauthorized appropriation of the plaintiff's image, only this time thePage 827 defendant used the plaintiff's likeness in conjunction with a falsified quote of endorsement.²³ In a thorough opinion, Judge Cobb came to recognize the right of privacy as a natural law derivative whose tortious violation affords general damages for one's "wounded feelings."²⁴

For the next half century, courts couched identity rights in terms of "privacy." But this blind adherence to only a private, personal perspective of image left those with particularly recognizable identities without remedy. Celebrities whose images had been wrongly appropriated for marketing purposes usually would sue under their rights of privacy.²⁵ But judges were unable to comprehend how public figures who normally seek the limelight could have their feelings hurt by additional publicity, especially when the publicity was favorable. O'Brien v. Pabst Sales Co., exemplifies this conundrum.²⁶ The plaintiff in O'Brien was a famous football player whose picture appeared in a football calendar produced by Pabst Blue Ribbon Beer. He sued the beer distributor under his right of privacy, but the majority rejected this claim because the plaintiff was a celebrity...