Is Fame Different On the Web?
right of publicity

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The RIGHT OF PUBLICITY is the right that one has to CONTROL THE COMMERCIAL USE OF ONE'S IDENTITY.  Basically, it's the right to keep others from using your name, likeness, etc. for commercial gain without your permission.  In the United States, this is not a federal law (though it is similar to federal copyright law) and so it varies from state to state.  Some states have no right of publicity laws at all, while others (notably California and New York) have quite extensive ones either statutory or derived from privacy and property laws.

It protects the use of one's IDENTITY, VERY BROADLY DEFINED.  Early cases only dealt with the actual use of someone's likeness or name; Roberson v. Rochester Box Co., 171 N.Y. 538 (1902) involved the use of a young girl's portrait in an advertisement for flour.  But later cases have expanded it to ALMOST ANYTHING THAT SUGGESTS THE IDENTITY of a particular person.  It now prevents the use of another person who looks like (Allen v. National Video, Inc., 610 F. Supp. 2d 612 (S.D.N.Y. 1985)) or sounds like (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)) the famous person in question, or of a phrase that is associated with that person (Carson v. Here's Johnny Portable Toilets, Inc., 698 F. 2d 831 (6th Cir. 1983)), or of biographical facts about that person (Abdul-Jabbar v. General Motors Corp., 85 F. 3d 407 (9th Cir 1996)), or even a setting that is suggestive of that person (Vanna White v. Samsung Elecs. Am., Inc., 971 F. 2d 1395 (9th Cir. 1992) (disallowing the use in a commercial of a robot dressed like Vanna White turning letters in a Wheel of Fortune-like setting)) from being used without permission.

There are TWO MAIN RATIONALES for the right of publicity.  First, it is seen to derive from natural PERSONALITY RIGHTS: the idea that one has a natural right to control how one's identity is used.  Second, it is seen to derive from PROPERTY RIGHTS, based on Lockean labor-desert theory: the idea that if one goes through the effort of becoming famous, one deserves the profits that flow from it.

As a practical matter, because it concerns the right to use one's identity for profit or publicity, the right of publicity is GENERALLY ONLY APPLIED TO/BY CELEBRITIES:

Well known personalities connected with [the entertainment] industries do not seek . . . "solitude and privacy" . . . . Their concern is rather with publicity, which may be rgarded as the reverse side of the coin of privacy . . . . [A]lthough the well known personality does not wish to hide his light under a bushel fo privacy, neither does he wish to have his name, photograph, and likeness reproduced and publicized without his consent or without remuneration to him. Melville B. Nimmer The Right of Publicity, 19 Law & Contemp. Probs. 203, 203-04 (1968).

As some have argued, the right of publicity is primarily a product of the centralized, broadcast culture industry, a way for the entertainment industries to maintain control of valuable intellectual property, perhaps at the expense of free speech and to the detriment of popular culture. See, Madow.  Although who constituted "personalities connected with [the entertainment] industries" may have been quite clear in 1968 when Nimmer wrote the classic description above, the advent of the World Wide Web has made it less clear.  

Does the right of publicity apply to online celebrities? Should it? What would it mean for Madow's critique if it did?

What's Different on the Web?

As is also the case for defamation, most treatment of right of publicity online deals with the infringement happening online, that is to say, with the question of what happens when an offline celebrity has his or her identity appropriated for commercial use online. See here and here.  But there is little thought as to what difference it makes if the celebrity is famous only or primarily online.

Being famous online is (aguably) different from being famous offline so SHOULD THE RIGHT OF PUBLICITY APPLY TO FAME ONLINE?  YES. Both the personality rights rationale and the property rights rationale seem to apply online. One's expression of one's identity online is an extension of one's personality (or of at least one aspect of it) and there is no reason that expression should be less deserving of protection because it happened online rather than through traditional media.  Similarly, from a property perspective, if one works to create online fame, one should be able to profit from it just as one would offline.  Although much (most) internet fame is not profitable (or even entered into for profit) when it is deliberately created the fact that the internet celebrity does not seek profit should not prevent him or her from choosing whether to do so or from controlling whether others do so.  In fact, Madow's critique that the right of publicity exists only to reinforce the property rights of entertainment industries does not apply online; fame online is arguably even more deserving of protection, since it is more closely connected to the original person's personality and more likely to be the result of that person's individual labor.  Finally, the recognition by courts that identity can appear in many different froms (from appearance, to voice, a robot in a familiar setting) means that the various forms in which it appears online (text, video, podcasts, etc.) should also be protected.

HOW SHOULD THE RIGHT OF PUBLICITY BE DIFFERENT ON THE WEB?  How can we tell if online celebrities are famous in a way that allows them to assert a right of publicity?  In traditional offline right of publicity cases, some courts have required plaintiffs to show that their public likenesses or personae have pre-existing commercial value. See e.g., Pesina v. Midway Mfg. Co. 948 F. Supp. 40 (N.D.Ill. 1996).  Other courts have decided that "even the identities of non-celebrities have commercial value and that all individuals have a publicity right in their identities, and that non-celebrities may therefore assert an appropriation of publicity claim." Fanelle v. Lojack Corp. Not Reported in F. Supp. 2d, 2000 WL 1801270 (E.D.Pa. 2000).  Online fame reveals a problem with this either/or approach.  Whatever their ultimate conclusion, courts seem to equate fame with commercial value.  

PRE-EXISTING COMMERCIAL VALUE SHOULD NOT BE THE CRITERION FOR MEASURING FAME ONLINE, however, because doing so ignores the realities of online fame. Obviously, the personality rights basis of the right of publicity is unaffected by commercial value: a public identity is no less or more an expression of one's personality because of its commercial value. It is also no less a product of one's labor if it has no commercial value, which suggests that the property rights rationale supports it as well.  Online people's creations, including their public identities, are often created for reasons other than commercial gain, including gaining status and prestige (See e.g., Daniel Stewart, Social Status in an Open Source Community, 70 AM. SOC. REV. 823, 826 (2005)). Since much of online culture is dedicated precisely to preserving the not-for-profit ethos, the law should prevent a third party from gaining commercially from the identity of a web celebrity, even though (especially since!) the web celebrity has refused to commercialize his or her fame.

The non-profit nature of much web activity raises another possibility.  SHOULD THE RIGHT OF PUBLICITY PROTECT AGAINST NON-COMMERCIAL USE OF SOMEONE'S IDENTITY ON THE WEB? NO, I don't think so.  Traditionally, the right of publicity only protects someone from commercial appropriations of one's identity; that has been its primary purpose. Although the web celebrity could suffer harms (harms to his or her reputation and/or the possibility of confusion akin to that in trademark law), these harms are better addressed through other laws like defamation or through the open exchange of competing ideas online (i.e. people who want to develop a reputation online can and should work online to protect it).

Links:

Wikipedia entry on Personality Rights - needs work.

EFF's Internet Law Treatise entry for Right of Publicity - quite clear introduction to the right of publicity, still needs expansion.

Publicity Rights - notes from Alan Hantz at the University of North Carolina, Asheville outlining the basics and history of the right of publicity.

State Right to Publicity Laws - the different right of publicity laws in each of the United States.

Stacey L. Dogan and Lemley, Mark A., Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stanford L. Rev. 1161 (2006), available here - article arguing that the right of publicity should be considered analogous to trademark law, designed to protect against customer confusion and identity dilution.

Cristina Fernandez, The Right of Publicity on the Internet (1998) -  a student note analyzing how the right of publicity applies to online uses of offline celebrities identities.

Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CALIF. L. REV. 125 (1993), available here - article critiquing the seemingly commonsensical rationales for a right of publicity and pointing out the dangers it poses to free expression.