THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD. By Jennifer E. Rothman. Cambridge and London: Harvard University Press. 2018. P. 185. $39.95.
In Jennifer Rothman's (1) new book The Right of Publicity: Privacy Reimagined for a Public World, she argues that we have wrongly reconceived the right of publicity as an intellectual property (IP) right rather than as a privacy-like right of "self-ownership," (2) and that in doing so we have let it grow unchecked in ways that serve no good purpose. (3) She endorses returning to the historical core of the right of publicity as a privacy right that primarily protects human dignity (p. 181), and she argues that doing so will enable us to limit the growth of the doctrine and apply the First Amendment to effectively protect speech threatened by the current, mutant right of publicity (p. 182).
Rothman's book is a compelling read, and her explication of the history of the right of publicity and how we got here is fascinating and largely persuasive. And I agree with her both about the problems with the current broad form of the right of publicity and about many of the specific doctrinal changes we should make to cut it back to a manageable size. But I think there is a disconnect between the history she has uncovered and the theoretical and legal framework she proposes. The history of the right of publicity as a privacy rather than an IP right is not encouraging for those who would limit the scope of the right or apply robust First Amendment principles to counterbalance it. The right of privacy that grew into the right of publicity was, as Rothman herself shows, a property right (p. 48). And it was, from the start, capacious, unruly, poorly cabined, and intolerant of free speech. (4) While dropping the idea of the right of publicity as IP might solve particular problems such as its transferability, it is unlikely to give us the limits she wants on the substantive scope of the right itself. To get there, we would need to challenge the nature of the use of one's identity as a privacy harm in and of itself. Ironically, understanding the right of publicity as a specific form of IP right--a trademark-like right against deception--may point the way toward a more reasonable doctrine.
THE PRIVACY WE DESERVE
"Every nation has the government it deserves."
--Joseph de Maistre (5)
Rothman tells a compelling story of the history of the right of publicity. The conventional narrative identifies early forms of the right of publicity as part of the tort of privacy identified by Samuel Warren and later-to-be-Justice Louis Brandeis. (6) In this conventional story, the right of publicity was recast in 1953 in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (7) as a property right rather than a privacy right because privacy law couldn't protect the interests of celebrities who wanted to endorse products and the companies with whom they did business. (8) Thinking of the right of publicity not as a privacy interest but as a property interest led to its expansion from a tort originally aimed at false endorsement to one that encompasses a wide variety of ways someone might use or invoke a person's name or likeness. (9)
Rothman challenges this narrative by illuminating the early history of the right of publicity. (10) She does not question the growth of the property version of the right of publicity, but she does question the necessity for a new IP right. Contrary to the traditional account, she argues that the privacy-based right of publicity adequately protected the identity interests of celebrities, and that only the additional desire to alienate those interests drove courts to reenvision the right of publicity as being property-based (pp. 4-5). The myth that privacy didn't provide effective protection, she argues, led us to create an IP right that has grown ever more powerful with time. (11) The result is a "misunderstood, misshapen, bloated monster that has turned against even its initial masters and proponents" (p. 7).
This move to IP and alienability, Rothman argues, was unnecessary to preserving identity interests. (12) It was driven by myths and misunderstandings about the nature of the original privacy right. The most important of these was the myth that privacy protection was ineffective before the property turn starting in the 1950s. (13) Rothman amply documents the ways in which that myth is false. She discusses several cases granting quite powerful rights under the rubric of privacy. (14) She argues persuasively that those cases protected a liberty and dignity interest, one she thinks we all have, "to stop others from using our identities" (p. 1).
Those cases show, she argues, that
[w]hat is often thought of as the driving force behind the turn to the right of publicity was not in fact the impetus for its adoption. The problem was not that public figures lacked privacy rights, but instead that companies wanted stronger tools to prevent public personalities from giving permission to more than one company to use their names and likenesses, (p. 46) Rothman bolsters this claim by citing cases at the inflection point in the move from privacy right to IP right, especially Haelan. (15) She finds that, despite its mythology, Haelan did not reject prior case law, and indeed didn't directly address the right of publicity at all (pp. 62-64). Rather, it was a contract case, and its primary conclusion was that a person held a right of publicity in his photograph that he could freely assign (and that, having done so, he couldn't sell it again in derogation of that contract). (16) While the court used the phrase "right of publicity," it did so only in dicta (p. 59). Indeed, Rothman points out that to this day New York, where Haelan was litigated, does not recognize a common law right of publicity. (17)
Transferability, Rothman argues, was the crux of what she calls the "inflationary period" of the right of publicity (p. 67). Melville Nimmer, then an attorney at Paramount Pictures and later an influential treatise writer, endorsed the newly renamed right of publicity and its transferability. (18) Courts and states expanded that right, now reimagined as a valuable economic right, to anything the celebrity (or his transferee) could sell. They expanded it beyond his death, just as other valuable and tradeable IP rights can be transferred and can survive their owners (pp. 81-86). And the Supreme Court took a significant further step on the IP road in its only right of publicity case, Zacchini v. Scripps-Howard Broadcasting Co., (19) which held that the "State's interest in permitting a 'right of publicity' is in protecting the proprietary interest of the individual in his act" to "encourag[e] the production of 'entertainment' in a way 'analogous to the goals of patent and copyright law.'" (20) Rothman views Zacchini, not Haelan, as the case that cemented the right of publicity as an IP right.
Once entrenched as an IP right that was fundamentally economic, the right of publicity has expanded continually over the last several decades, covering ever more things under the banner of name and likeness (including voice, job description, and the color of one's car), (21) and assigning to the right of publicity owner (whether or not the identity holder) the right to control virtually any commercial use of the name and likeness (whether or not any consumer believed the celebrity was endorsing the product). (22) Rothman is on more familiar ground here, and her complaints about the growth of the right of publicity echo those made elsewhere. (23)
Rothman is also on familiar ground in considering and mostly rejecting the proffered theoretical justifications for this new IP right (pp. 98-112). She correctly observes that the IP-as-incentive story falls flat: "If the right of publicity incentivizes anything, it is not clear that it is incentivizing anything we might wish to encourage." (24) Nor is it clear that publicity rights efficiently maximize the allocation of resources. (25) And the unjust-enrichment or labor-reward theories, which Rothman has more sympathy for than I do, (26) nonetheless cannot in her view justify the current expansive scope of the right of publicity, including its transferability and its postmortem persistence (pp. 105-10).
Nonetheless, Rothman is a believer in the right of publicity. She justifies it on grounds of liberty and dignity:
In the absence of control over our own identities, we are all like puppets that can be used to speak others' words and messages. Our speech will be compelled, our liberty lost.... No one should be able to fully control all constructions of her personality, but one should have some control over how others use one's name, image, and voice, particularly when injury is likely. (27) She doesn't exclude economic rights, but she gives them short shrift, arguing in a single page that "[unauthorized uses of a person's identity can interfere with the ability to earn money from advertisers" (p. 110). But she doesn't follow through on this right as an independent basis for the right of publicity--and, indeed, doing so would undercut the main thrust of her book. (28) Rather, her primary point seems to be that intrusions on liberty and dignity can have economic as well as reputational and emotional consequences, and plaintiffs who have suffered those harms should be able to recover both economic and noneconomic damages (p. 110).
Armed with this somewhat thin description of the right of publicity as a noneconomic, dignitary tort, Rothman sets out in the last part of the book to reconstruct a right of publicity that better fits that conception. (29) The right of publicity, she argues, should not be transferrable, except to "certain living heirs." (30) And it should be cabined by the First Amendment to a much greater extent than it currently is (Chapter Seven). But the "legitimate" justifications for the right of publicity are, in her...