Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity

Abstract

Over the years, the privacy-based tort of appropriation has become eclipsed by its flashier cousin, publicity. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. When celebrities are perpetually trading on their names and images in the open market, it may seem quaint, at best, to invoke a dignity as a basis for protecting personal identity. But this is exactly what happens. In case after case, even as they demand restitution for the converted monetary value of their names and images, celebrities also invoke dignitary concerns as a prime motivation in their attempt to protect and vindicate the integrity of their identities before the law. Moreover, for average citizens, the power to control the use of their name or image can be critical to maintaining the integrity of their identities. The courts recognize this, but all too frequently they subsume all such claims under the rubric of publicity. Even when acknowledging the privacy interest involved, courts tend to confuse and blur the boundary between the two causes of action, with the inevitable result being that the more prominent and tangible property-based right of publicity comes to eclipse the privacy based concerns for identity. I say eclipsed quite deliberately, because while these latter concerns persist throughout and animate much of the courts' reasoning, they remain obscured. Thus, never fully articulated, their implications are never fully explored. In this article I aim to bring the tort of appropriation back into the light. My task is to disentangle publicity and privacy, the conjoined twins of our modern media-saturated society. By examining their origins and development I will show how courts have consistently, if often obliquely, granted legal recognition to identity as a dignitary interest. In bringing such interests to the fore, I hope to revitalize our concern for and examination of intangible, noncommercial values as they inform and guide the legal management of identity. Indeed, the legal recognition of dignitary interests manifested in the jurisprudence of appropriation has created and maintained a legally sanctioned space that places control over the self beyond the reach of the market. As we choose our legal values, we locate power to interpret and enforce the law. While both publicity and appropriation involve fairly straightforward methods to determine whether someone's name or image has been used without her consent, they call upon significantly different sources of authority to assess the nature and degree of harm caused by such misuse. Publicity rights demand accountants and other relevant experts from the realm of celebrity and marketing to determine damages. Appropriation calls upon the local community to consider whether an outrage or affront to relevant social norms has occurred. The former involves the virtues and vices of expert management, the latter, the virtues and vices of local majoritarian control. My examination of the relationship between publicity and appropriation illuminates the tensions between democracy and management, even as it provides new insights into the legal relationship between the fungible and non-fungible aspects of our identities. I argue that in assessing the legal status of identity it is imperative to articulate and engage the tradition of concern for such intangible values as dignity and integrity as integral parts of our legal system. The jurisprudence of publicity and appropriation provide a unique and powerful avenue to explore such issues.