Property and Projection
72 Pages Posted: 19 Mar 2019 Last revised: 10 Feb 2020
Date Written: March 19, 2019
In cities across the country, artists, protesters, and businesses are using light projections to turn any building’s facade into a billboard without the owner’s consent. Examples are legion: “Believe Women” on a New York City Best Buy; a scantily clad male model on the side of an apartment building; a nativity scene on the Los Angeles chapter of the American Civil Liberties Union. Two courts have considered claims by owners seeking to stop these projections under theories of trespass and nuisance. In each case, the court held that because light is intangible and the projections resulted in no economic harm to the property, the common law affords no relief.
This Article argues that property law can and should authorize projection claims by private owners. It traces the history of property tort claims involving light, explaining how the law developed to emphasize economic and physical harm and identifying the forgotten strands of doctrine that nonetheless support liability fortargeted projections. Projections are forms of appropriation: not only do they disrupt the owner’s use and control, but they also cause dignity and privacy harms by exploiting the owner’s realty toward unwanted ends. Protections for these noneconomic interests have long been parasitic on trespass and nuisance, but the light projections expose a gap between the two forms of action. This Article argues that, despite hurdles in both nuisance and First Amendment law, tort law can mend this gap by more flexibly defining harm to encompass activity without economic or physical consequences that would nonetheless be perceived harmful by ordinary citizens, particularly if intentional and limited in independent utility. More generally, the projection cases teach broader lessons about the development of the property torts, the concept of appropriative harm, the relationship between privacy and property, and the nature of property itself.
Keywords: property, land use, nuisance, trespass, privacy, First Amendment, light pollution, light projection
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