(Part 1) Serving a Self: Reading the Law into Popular Conceptualizations of the Right of Publicity

This blog series reports the results of an investigation into how the right of publicity, a legal concept designed to prevent the unauthorized use of a person’s likeness, name, or photo for the economic gain of others, and commonly invoked by celebrities in order to police the use of their likeness, is colloquially invoked by ordinary (i.e. non-celebrity) persons in an attempt to assert control over their online persona. On the Lumen Database, such attempts often are categorized as right of publicity notices. Such notices are similar to D.M.C.A. notices and essentially amount to requests to remove someone's name, image, and likeness from browser search results.

The outcomes of this investigation provide another window into the gray area between popular understandings of legality (norms) and factual legal standards. Regrettably, the merging of these two forms of understanding is a frequent casualty in the battle to coherently elucidate the complex interplay between the law and those bound by it. Such merging serves generally to obscure the effects of law by placing the analytical lens on professional interpretations of the law, which though no doubt valuable for many purposes, is not a perfect substitute for the structure that non-specialists see themselves as bound by.¹

What many people think of as the law is instead a set of norms loosely based on what may or may not be actual common or statutory law. From the perspective of layperson x, it does not make sense to speak of norms and the law separately, for in fact, norms are the law. A person may know no law but norms. When, for example, a user posts a video that potentially infringes copyright on YouTube, writing in the description something along the lines of, “this song, video, artistic expression, etc. is the property of x person, I make no claim to it,” in order to absolve themselves of potential liability for infringement, she, he, or they does not believe themselves to be operating according to a convention/community standard born of repeated usage. He, she, or they believe themselves, in a general sense, to be operating according to the law. If that were not the case, the actual act of writing the absolving statement would be illogical since it would be known to the writer that as a matter of law it does not factually absolve anyone of anything.²

In much the same way that YouTubers have created a standard, though inaccurate, understanding of what constitutes a statement absolving a user of infringement, right of publicity notices on Lumen display a unified, though inaccurate, conceptual understanding of the right of publicity. Though the true extent of how common that understanding is is beyond the purview of this investigation, the mere presence of relatively large numbers of conceptually similar notices within the database suggests that the understanding is indeed relatively common among the community of online users who are invested in such things. Admittedly, such persons likely constitute a minority.

Nevertheless, I see no reason why their attempts at control, though more focused and frequently articulated, cannot be/are not representative of a desire present in the general population. Illustratively, an informal poll of Berkman Klein Center Interns returned a 93 percent affirmative response to the question, do you feel like you ought have some control over how your name, photo, and likeness are used online; I’d venture to guess that a poll of individuals on the street would return similar results.³ Moreover, Lumen Database notices display remarkably uniform language across a number of other variables (country of origin, target of complaint, etc.) in right of publicity notices that hints at the commonality of such a desire for control. Take notice 13915094, written in Korean, and notice 13182068, written in English. Both decry the usage of usernames without consent with a similar degree of outrage. In the case of the English speaking notice (notice 13182068), the submitter even went so far as to suggest that, “Google has failed to protect me and my business by letting people get away with this,” thereby implying that ISPs, and especially Google, have some sort of responsibility or obligation to give control to individual users.

The sticking point is that the architecture of the Internet makes it such that one does not have much control over how one’s name, likeness, or photo is used online. Rapid peer to peer file sharing, the reposting or mirroring of websites and website content, the sheer magnitude of the World Wide Web, all of these modalities of the Internet conspire to keep control from the hands of a single person. Often that very architecture is what is so beneficial about the Internet, but in the case of an individual’s desire for control over how their name, image, and likeness are used, it presents serious hurdles.

Considering the ubiqu