TABLE OF CONTENTS INTRODUCTION I. THE COMPETING INTERESTS: COPYRIGHT LAW AND PRIVACY LAW A. The Creator as Author: Copyright Law's Incentives B. The Subject as Author: Privacy and Related Torts II. FIXATION AND ITS EFFECTS A. History B. Justifications III. FIXATION AT THE BOUNDARY OF AUTHOR AND SUBJECT CONCLUSION INTRODUCTION
In the fall of 2001, a New York gallery mounted "Heads," a show of street photography by photographer Philip-Lorca diCorcia. DiCorcia, who had worked in this genre for many years, had set up his camera in Times Square and taken photographs of strangers, without their knowledge, as they passed by, (1) then cropped and framed the photographs to create portraits of each subject. Four years later, Erno Nussenzweig discovered that his photograph was among those in the exhibition. His image was included in the show's catalogue and was available for sale in ten limited edition prints. Nussenzweig, an Orthodox Jew who believed that the photograph offended his religious beliefs, brought suit under New York's right of publicity law, (2) alleging that the use of his image for commercial purposes was unauthorized and thus unlawful. (3) Although Nussenzweig's case ultimately failed on statute of limitations grounds, the trial court offered an alternative holding (4): that diCorcia's transformation of Nussenzweig's image--unbeknownst to him--into "art" rendered the photograph constitutionally protected and thus outside the scope of New York privacy law. (5) DiCorcia's act of fixing Nussenzweig's face in a photograph--and the subsequent categorization of that act as "art"--transformed Nussenzweig's image from personal to property, giving control of it to the artist rather than to the subject. (6)
Six years later, Alison Chang, a teenager living in Texas, was surprised to learn that a photograph of her taken by a friend and posted to the photo-sharing site Flickr was used on a billboard in Australia as part of an advertising campaign for Virgin Mobile. (7) The print campaign featured numerous photos taken from Flickr on which Virgin had superimposed captions; the one on Chang's photo read "Dump Your Pen Friend." Chang, claiming that the campaign transformed her from a "normal high school student to the 'dump your pen friend girl,"' filed suit against Virgin Mobile in state court in Texas, alleging, among other things, that Virgin's activities constituted an invasion of privacy. (8) But whether Chang could have successfully asserted such a claim remains uncertain: Chang's friend had posted the photograph to Flickr under a Creative Commons Attribution License, which allows others to copy and use the photograph provided that attribution is given. (9) Thus, had the case gone forward, Virgin Mobile might have argued that it had complied with the terms of the license and so satisfied all of its legal obligations toward the owner of the rights in the photograph. (10)
The experiences of Nussenzweig and Chang are commonplace. Many individuals have been surprised or troubled to find themselves the subject of biographies, plays, photographs, and Internet postings in which they did not actively participate, transformed from fairly anonymous individuals into widely known artistic subjects. (11) Although these experiences are not new, the development of recording and photographic technology and the ability to distribute such recordings over the Internet to a worldwide audience have redrawn the boundary between public and private. Events that formerly would have receded into the darkness of the past are now captured on mobile phones and uploaded to YouTube. Search engines and web archives make it ever harder to distance oneself from these once forgettable and now cemented episodes of life. Commentators have chronicled the misfortunes of individuals who believed their actions were viewed by only a few in the direct vicinity but who became unwilling Internet sensations virtually overnight. (12) Concerned by these developments, scholars have high lighted the privacy interests at stake, calling for reforms that would provide greater protection against unwanted publicity, even for acts in public places, a space in which privacy law traditionally provides little force. (13)
As illuminating as these discussions are, they often do not take into account a potential competing interest: the copyright held by the writer or photographer who has captured the subject's life, an interest that arises at the moment of fixation (14)--the second that the story is committed to keyboard or the JPEG is stored in memory. Fixation--the act of preserving something, even if only temporarily--is necessary to obtain protection under U.S. copyright law, which requires that the copyrighted "work" be "fixed in a tangible medium of expression." (15) Because many works of creative expression are fixed in some form, the subject of fixation arises in relatively few cases--typically in connection with computer technology, when the question is whether fixation in computer memory meets the statutory requirement. (16) Fixation receives a bit more attention on the scholarly front, where commentators have highlighted how the requirement works to exclude artistic endeavors such as improvisational theater from the scope of copyright protection. (17) Fixation may also find its way to a copyright exam or two, as law professors ask students to consider whether such ephemeral creations as skywriting, fireworks, and ice sculptures qualify for copyright protection under U.S. law. On the whole, then, it would seem as if fixation is a relatively uncontroversial topic.
Yet the stories of Nussenzweig and Chang illustrate the increasing importance of fixation in an information age. Under U.S. copyright law, fixation is what creates both an author and a commodifiable subject, neither of which exists as a legal entity in copyright law before the act of fixation occurs. It transforms the creative process (and its subject) from a contextual, dynamic entity into an acontextual, static one, rendering the subject archived, searchable, and subject to further appropriation. (18) Even in contexts in which there is no competing claim as to control, fixation still works to bound the fruits of creative effort, engendering distance between the author and audience. Fixation thus causes a kind of death in creativity even as it births new legal rights. Once an "author" has fixed a certain version of her work, she has propertized its subject, subordinating the work to the various laws and tropes that come with a property-based regime such as copyright law: ownership, transformation, borrowing, and theft. Fixation is what allows the subject to be commercialized and analyzed; it is what marks the transformation to subject in the first place.
This is not to say, however, that the way to resolve this tension is clear or even possible. So long as people have memories, gossip or other information about others conveyed orally among a group can have the same effect on the subject. Moreover, the tendency of creators to fix their work yields indisputable benefits for both audiences and later creators. But fixation is a deceptively simple act with significant legal consequences. The act of fixation makes it necessary to consider whether "art" has been created, thus implicating the First Amendment. In other words, fixation does not simply have the potential to offend another's sensibilities; it also affirmatively creates rights (and an author) that did not previously exist and that often can be oppositional in nature. (As Diane Zimmerman has noted, "the ability to use speech goods is a necessary element of what the First Amendment protects," and so "it is very risky to allow individuals to 'own' or control use of their life stories." (19)) Fixation thus puts two sorts of authorship interests in tension: the interest of a creator in having control over the work she has fixed and the interest of the subject in resisting the transformation to a "work" in the first instance. (20)
This is not to say that U.S. copyright law's fixation requirement should be revised or eliminated. Indeed, to eliminate the requirement risks tipping the balance even more in favor of the author and away from the subject. But because fixation is typically uncontested, it is worth refocusing our attention on its effects, particularly on its locus at the boundary between copyright and privacy.
THE COMPETING INTERESTS: COPYRIGHT LAW AND PRIVACY LAW
The Creator as Author: Copyright Law's Incentives
U.S. copyright law's (21) concept of the author is rooted in an economic theory of incentives. In the standard explanation, absent copyright law, authors will eventually lose their motivation to create new expressive works once they recognize the possibility of free riders who can copy those works and sell them at the marginal cost of copying. The author, who must also recoup the cost of production, cannot compete with the copyists and so decides not to create at all. (22) Thus, copyright law provides an author with the ability, in general, to control the use of her work (23) in order to incentivize the creation of the work in the first place. This notion that control of the work is an important incentive is nothing new, of course--the requirement in the mid-1500s that no book could be printed for sale unless registered by a member of the Stationer's Company, the precursor to the modern copyright regime, functioned as a form of government censorship and a monopoly to the registrant publisher. (24) So it is not merely the fact that copyright law provides an incentive that is said to justify its existence--it is that the incentive it provides (control) is one that is sufficient to motivate authors to create and publishers to publish, which works toward the benefit of the public in that it results in more creative expression for public consumption. (25)
The Continental copyright scheme, by contrast, finds its roots in a...