Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 1999 Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity Jonathan Kahn Mitchell Hamline School of Law, [email protected] Publication Information 17 Cardozo Arts & Entertainment Law Journal 213 (1999) Repository Citation Kahn, Jonathan, "Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity" (1999). Faculty Scholarship. Paper 289. http://open.mitchellhamline.edu/facsch/289 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. 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 ourc ts 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. 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. Keywords publicity, identity, privacy, appropriation Disciplines Privacy Law This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/289 BRINGING DIGNITY BACK TO LIGHT: PUBLICITY RIGHTS AND THE ECLIPSE OF THE TORT OF APPROPRIATION OF IDENTITY JONATHAN KAHN* I. INTRODUCTION Popular singer Bette Midler sued Ford for using a sound-alike to mimic her voice in a car commercial on television.1 Former First LadyJacqueline Onassis sued Christian Dior for using a look- alike to sell its products in a print advertisement.2 Actor Clint East- wood sued the National Enquirer for exploiting his name and im- age solely to sell newspapers.' Today, when we think of torts involving the use of someone's name or image without her con- sent, these are the types of cases that come to mind: celebrities seeking to control the exploitation of their fame for profit. Most likely, such cases are framed in terms of the right of publicity, a property-based right involving the commercial value of celebrity identity.4 Indeed, so prominent is the right of publicity that it has come to eclipse the existence of another cause of action that may arise from the very same set of facts: the tort of appropriation of identity. While publicity is grounded in property rights,5 appropriation of identity involves the personal right to privacy. 6 Publicity rights implicate monetary interests.7 In contrast, privacy rights protect and vindicate less tangible personal interests in dignity and integ- rity of the self.' However, both rights are clearly linked and find their common origin in American law around the turn of this cen- tury.9 Yet over the years, the privacy-based tort of appropriation has receded into the background as its flashier cousin, publicity, * Assistant Professor of History and Political Studies, Bard College; Ph.D., Cornell Uni- versity; J.D., Boalt Hall School of Law. This Article is part of a larger project with the working title: "The Subject of Rights: Identity and Equality in American Law." 1 See Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). 2 See Onassis v. Christian Dior of N.Y., Inc., 472 N.Y.S.2d 254 (N.Y. Sup. Ct. 1984). 3 See Eastwood v. Superior Court, 198 Cal. Rptr. 342 (Cal. Ct. App. 1983). 4 See Robert C. Post, Rereading Warren and Brandeis: Privacy, Property, and Appropriation, 41 CASE W. RES. L. REv. 647, 654 (1991). 5 See id. at 666. 6 See RESTATEMENT (SECOND) OF TORTS § 625C (1976). 7 See Post, supra note 4, at 667. 8 See id. 9 See Robert C. Post, The Social Foundations of Privacy Law: Community and Self in the Common Law Tort, 77 CAL. L. REv. 957, 958 (1989). 213 214 CARDOZO ARTS & ENTERTAINMENT [Vol. 17:213 has risen to prominence. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. As celebrities perpetually trade on their names and images in the open market, it may seem quaint, at best, to invoke dignity as a basis for protecting personal identity. Butthis is exactly what happens. Midler, Onassis, and Eastwood each had valid pub- licity claims, but more important to them was the vindication of a personal right to control the meaning and substance of their iden- tities. 1° In case after case, even while demanding restitution for the converted monetary value of their names and images, celebrities invoke dignitary concerns as a prime motivation for their attempt to protect and vindicate the integrity of their identities before the law. 1 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 they all too frequently subsume all such claims under the rubric of publicity. Even when acknowl- edging the privacy interest involved, courts tend to confuse and blur the boundary between the two causes of action, with the inevi- table result being that the more prominent and tangible right of publicity comes to eclipse the privacy-based concerns for identity.'2 I say "eclipsed" quite deliberately, because while these latter con- cerns persist throughout and animate much of the courts' reason- ing, they remain obscured. Because these concerns are never fully articulated, their implications are never fully explored. This Article aims to bring the tort of appropriation back into the light. The task is to disentangle publicity and privacy, the con- joined twins of our modern media-saturated society. By examining their origins and development I will show how courts have consist- ently, 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, noncom- mercial values as they inform and guide the legal management of identity. Indeed, the legal recognition of dignitary interests mani- fested in the jurisprudence of appropriation has created and main- tained a legally sanctioned space that places control over the self beyond the reach of the market. 10 See Post, supra note 4, at 667. 11 See id. 12 "The distinctive aspect of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or 'per- sona."' Id. at 666 (quoting Ali v. Playgirl, Inc., 447 F. Supp. 723, 728 (S.D.N.Y. 1978)). For a more detailed discussion of Ali, see infra notes 282-87 and accompanying text. 1999] BRINGING DIGNITY BACK TO LIGHT 215 As we choose our legal values, we locate power to interpret and enforce the law. While both publicity and appropriation in- volve fairly straightforward methods to determine whether some- one's name or image has been used without her consent, they call upon significantly different sources of authority to assess the na- ture 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.