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 indeed provides (in a perceptual sense) such desired 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 own property not just a matter of privacy. 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.