(Part 3) Serving a Self: Reading the Law into Popular Conceptualizations of the Right of Publicity

Assuming that legal paradigms will never be instantaneously responsive to changing social conditions (which is itself up for debate), a central question in legal philosophy is how should law approach the fact that it is behind the zeitgeist. One camp claims that the law should attempt to play catch-up. One camp (the smaller one) claims that the law should embrace its position as a drag on rapidly changing status quos. Nevertheless, since there are not that many who truly believe that law should not try to keep up with the times perhaps the more interesting question is precisely how the law should play catch-up. In a given situation, should the courts apply old law to new technologies, social arrangements, and the like or should legislatures have to write new laws?

The Internet is one particular location in which law is struggling to keep up. As part 1 and 2 have hopefully demonstrated, one instantiation of that phenomenon is the increasing need/desire on the part of individuals for mechanisms to police their online presence. Such desires are as widespread as they are understandable, which, in short, is to say very much so.

However, the common public understanding of the right of publicity (perhaps unsurprisingly) seems to give individuals what they desire (i.e. the ability to control the use of their name and image), even though the legal formulation of the right does not. Neither D.M.C.A notice and takedown procedures, nor defamation complaints in their proper form are well-tailored for the needs/desires of the public. Thus, the issue is that the public understanding only “seems” to give individuals what they desire since it is not itself based in any actual law.

Part 3, as written below, is an attempt to elaborate on what a new law designed to remedy that discrepancy (to make law look more like what the public wants/needs) would look like in a best-case hypothetical. Importantly, by best-case, I mean best suited to fit the needs/desires of the public as described in parts 1 and 2. Part 3 is not designed as an answer to any of the thorny issues raised in the first paragraph.

Any discussion of a best-case scenario has to begin at the federal level. Readers of part 2 will remember that one of the popular (mis)conceptions regarding the right of publicity is that it transcends borders because it is something akin to a natural right, a right one has simply because one is a human being. One way to partially make the misconception a reality is to write the hypothetical legislation at the federal level. Federal legislation would transcend the borders of U.S. states and it would mirror the type of consideration given to other things considered natural rights like the right to life and liberty. But what would the actual legislation look like?

If the hypothetical legislation is to be within the realm of the possible it should realistically fit within trends in right of publicity law and should at least have some connection to the original intent of right of publicity legislation. I say should primarily because fitting the legislation into existing trends and legislative justifications would increase political will for the hypothetical legislation. New legislation that is not a sudden divergence from previous law is generally more palatable for policy makers.

With those two constraining factors (fitting within 1. the arc of change and 2. the legislative intent of current right of publicity statutes) the hypothetical legislation would likely look like Assembly Bill A08155 proposed recently in the New York General Assembly.¹ As a previous blog post detailed, the proposed (but ultimately unlikely to pass) legislation adds two features to the traditional right of publicity recognized in New York: descendiblity and transferability. Making a right of publicity something that can be sold, exchanged, and inherited by heirs makes the right something more akin to a person’s personal property. This has become a trend in recent years as states like New Hampshire and Indiana have undergone similar legislative changes.² So to fit recent trends in the legislative environment, the hypothetical federal legislation would make the right of publicity both descendible and transferable; in other words, it would treat the right like property. A piece of legislation so constructed would create a right of publicity that conveys to each citizen of the U.S. ownership and the subsequent ability to preemptively control the use of their name, image, and likeness on the Internet.

Yet the perplexing issue of how to shoehorn such an expanded right of publicity into existing justifications for the existence of the right would remain.³ Traditionally, justifications for the existence of the right of publicity have been tripartite. The right of publicity prevents identity theft, allows one to build and protect a personal brand from undo ec