6 Va. J.L. & Tech. 3

1. In 1995, an organization of anti-abortion protestors called the American Coalition of Life Activists (ACLA) began compiling the “Nuremberg Files,” a collection of pictures and personal information about abortion clinic doctors and staff. The group claimed to be keeping the Files “in anticipation of a day when doctors who performed abortions would be put on trial for murder.”[2] The Files contained identifying information on each doctor, including pictures, home address, phone number, children’s names, license plate numbers, and driving route to work. Neal Horsley, a member of ACLA, posted the Nuremberg Files on the Internet with a message that the doctors “must be brought to justice.”[3] The names of active abortion providers were displayed on Horsley’s website in black, the names of those who had been wounded in incidents of anti-abortion violence were written in gray, and the names of those who had been killed by anti-abortion protesters were crossed out; all of the names on the site were surrounded with dripping blood.[4]

2. Doctors whose names and pictures were posted on the website worried that the publication of their personal information made them vulnerable to anti-abortion violence and harassment. Dr. Mildred Hansen, an abortion provider whose name was listed on the site, explained, “You’re just a little bit more careful about getting in and out of your car, for example, because someone who has your license number, they know that’s you.”[5] Another doctor stated that “when [she] attends social gatherings or meets new people... she takes care not to be specific about her daily habits and leisure activities: letting slip whether she bikes or plays tennis might reveal too much about her daily routine.”[6] Still other doctors responded to the unwanted publication by having regular security checks done on their houses and driving routes to work.[7] Finally, Planned Parenthood of Columbia/Willamette (PPCW), along with four Oregon doctors who were named on the Nuremberg site, sued Horsley and the ACLA in the District Court for the District of Oregon, claiming that the website constituted a threat in violation of both the Freedom of Access to Clinic Entrances Act and the Racketeer Influenced Corrupt Organizations Act. The court found for the plaintiffs and awarded over $100 million in damages.[8] The court also enjoined the defendants from publishing personal information about the plaintiffs (Doctors Crist, Hern, Newhall and Newhall) or PPCW. However, it did not order the defendant to stop publishing the site altogether. Although Horsley’s Internet service provider, Mindspring, terminated his service as a result of the trial, the Nuremberg site was soon up again under a different provider, still listing detailed personal information about abortion providers throughout the country.[9] Two years later the Ninth Circuit Court of Appeals overturned the District Court’s verdict, dissolving the injunction and damage award and allowing Horsley to resume publication of the Nuremberg Files.[10]

3. While the plaintiffs in this case focused on statutory claims, one cannot help but think that the doctors whose names were published on Horsley’s site might have had another cause of action related to the publication of their pictures and the personal details of their lives. Indeed, it seems that something very tangible and valuable was taken from them through the publication of such personal information as their images, addresses, phone numbers, license plate numbers, driving routes, and children’s names. Though they could have pursued a privacy claim, the plaintiffs felt that First Amendment hurdles were too hard to overcome and that emotional distress was too difficult to prove.[11] Perhaps a better option would have been to pursue a claim under the right of publicity. The property-based right of publicity allows every person to control the commercial use of his or her identity. The doctrine is most often invoked by celebrities whose identities have an easily ascertainable commercial value, or by non-celebrities whose images have been used in advertising and thus are considered commercially valuable as evidenced by their use. Yet, the non-celebrity doctors listed in the Nuremberg Files lost something of substantial value when Horsley used their identities to draw readership to his publication, despite the fact that their identifying information was published on an amateur (non-commercial) website. The phenomenon of amateur Internet publishing, with its low cost, accessibility, and broad audience, calls for a new and expanded concept of “commercial value” as it is understood within the context of the right of publicity.

4. Technological innovation in publishing has frequently been the catalyst for the establishment, extension, or reinterpretation of the rights of privacy and publicity. As developments in technology permit publication to impact our private lives in newer and more invasive ways, the law shifts to protect us against these changes. The doctrine of the right of privacy, for example, was first proposed by Warren and Brandeis after a Boston newspaper publicized the very personal details of a dinner party hosted by Samuel Warren’s wife.[12] Warren and Brandeis blamed this type of invasive publication on “recent inventions” which threatened the integrity of the persona. “Instantaneous photographs and newspaper enterprise,” they wrote, “have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”[13] At the time their article was published, Warren and Brandeis specified that invasions of privacy could only occur through written or printed publication; however, with the development and popularization of radio in the 1930s and 1940s, courts eliminated the distinction between printed and oral publication in the context of invasion of privacy claims.[14] Still later, with the invention of television and the massive expansion of the Hollywood film industry (both of which made it possible to mass-market celebrity personalities), Melvin Nimmer recognized that the privacy tort was “not adequate to meet the demands of the twentieth century, particularly with respect to the advertising, motion picture, television, and radio industries.”[15] These new publishing technologies had dramatically strengthened the property interest that celebrities had in their identities, and thus led to the evolution of a property-based alternative, the right of publicity, which offered more sufficient protection against film and television publication than the tort of invasion of privacy.

5. Today, we are witnessing yet another innovation in publishing technology: the development and popularization of amateur Internet publishing. The Internet, with its unlimited bandwidth, negligible publication costs, and remarkable ease of use, eliminates most of the barriers to entry that previously prevented everyday people from broadcasting their thoughts to the world.[16] Suddenly, the traditional economic model of the publishing industry no longer applies. The high cost of publishing and advertising once prevented the dissemination of personal information about private individuals: unlike the details of celebrities’ lives, which had an identifiable market, non-celebrities’ personal information was not sufficiently marketable to offset the costs of its publication. So while celebrities frequently invoke the right of publicity to protect the commercial value of their identities, non-celebrities are often thought to have no cause of action under the right of publicity precisely because their identities hold no commercial value to publishers. Yet, the low cost of Internet publishing drastically alters the traditional economic incentives associated with publishing. Today, amateur publishers are able to broadcast personal details about private individuals over the Internet without regard for financial consequences. Thus, the financial gains realized by the publisher no longer serve as an appropriate measure of the commercial value of the publicized identity, and celebrities are no longer the only people with an interest in protecting the commercial value of their identities. As in the past, the laws of privacy and publicity must shift to accommodate developments in publishing technology this time by extending the application of the right of publicity to protect the identities of private individuals.

6. Historically, developments in the rights of privacy and publicity have most often occurred as a result of technological innovation. Today’s technology is no different. In this article I will argue that the widespread accessibility and low cost of amateur Internet publishing demands new applications of the right of publicity with regards to private individuals. In particular, I will propose that non-celebrities have a very tangible property interest in their personas and that this interest has been triggered by the recent phenomenon of amateur Web publishing. The right of publicity for non-celebrities, long-recognized but thought to have no application in practice, must now be embraced within the context of amateur Internet publication of private individuals’ personal information. In Part II, we will review the origins and doctrinal development of the right of publicity. In Part III, we will compare the application of the right of publicity to celebrities and non-celebrities. In Parts IV and V, we will explore the relationship between the right of publicity and the tort-based right of privacy and the reason why the privacy tort is not an adequate remedy for non-celebrities whose personal information has been published on the Internet. Finally, Part VI will review three major economic assumptions that govern traditional right of publicity analysis and will argue that the advent of amateur Internet publishing challenges these assumptions and demands an expansion of the right of publicity to protect non-celebrities.

II. The Right of Publicity

A. Origins and Doctrinal Development

7. The right of publicity, defined by J. Thomas McCarthy as “the right of every person to control the commercial use of his or her identity,”[17] was developed in the 1950s to respond to new publishing technologies that made it possible to mass-market celebrity identities for profit. With the invention of television and the rapid growth of the film industry came a heightened belief that people particularly celebrities had a property interest in their own identities which was not adequately protected by the tort of invasion of privacy. Although celebrities had frequently, since the turn of the century, sought to recover damages for the unauthorized publication of their images under the tort of invasion of privacy, this remedy was insufficient for two reasons. First, many courts believed that celebrities had no cause of action under the right of privacy because they had effectively waived that right by permitting extensive publication of their identities “in connection with their profession.”[18] Second, the tort of invasion of privacy did not adequately recognize the property interest that plaintiffs had in their own identities, separate from and in addition to their privacy rights under tort law. While many courts had, within the context of a privacy suit, noted that a plaintiff had a property interest in the commercial value of his identity,[19] these courts were nonetheless bound to decide each privacy case based on a tort analysis. This often required showings of emotional harm and damage to character or reputation. For celebrities who wished to control and profit from the publication of their images, and not to prevent such publication altogether, these issues were beside the point. The tort of invasion of privacy was, for them, simply a roundabout way of asserting the property right in their identities.

8. With that introduction, the doctrine of the right of publicity made its judicial debut in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.[20] In Haelan, a chewing gum company that had bought the exclusive right to the image of a particular baseball player sued a rival company for producing and selling cards with that player’s picture. The defendant company claimed that the plaintiff could not prevail on a claim of invasion of privacy because the right of privacy was held by the player and was unassignable, but the court held that, “in addition to and independent of [the] right of privacy, a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture.”[21] The court called this the “right of publicity.”

9. A year later, Melvin Nimmer wrote his seminal article, “The Right of Publicity,” which expanded upon the holding in Haelan and theorized that the dramatic expansion of the television and film industries rendered the privacy tort toothless as a protection against unauthorized publication of celebrity images. “Although the concept of privacy... fulfilled the demands of Beacon Street in 1890,” wrote Nimmer, “it may seriously be doubted that the application of this concept satisfactorily meets the needs of Broadway and Hollywood in 1954.”[22] Nimmer discussed not only the inadequacy of the privacy tort, but also that of various other remedies available to celebrities whose images have been publicized without permission. He first disposed of the privacy tort as insufficient because it is considered waived by celebrities, requires a showing of offensive use, and is not assignable; he then went on to attack other remedies such as unfair competition, breach of contract, defamation, and libel, all of which he saw as inadequate protections against the unauthorized publication of a celebrity’s identity. Nimmer emphasized that, since paid celebrity endorsements became a popular form of advertising (a development facilitated by the invention of television), “the use of a prominent person’s name, photograph or likeness (i.e., his publicity values) in advertising a product or in attracting an audience is of great pecuniary value.”[23] As such, he suggested that all courts should acknowledge, as the Second Circuit did in Haelan, that people have a “right of publicity” in the commercial value of their own identities.

10. Unlike the right of privacy, the right of publicity has been widely embraced by both courts and state legislatures since its inception. Approximately half of all states have recognized a right of publicity either through common law[24] or legislation.[25] Acceptance of the right of publicity has become so widespread that the doctrine has been included in the most recent edition of the Restatement of Unfair Competition.[26] Furthermore, the scope of the doctrine has been expanded to protect more than just a plaintiff’s name, photograph or likeness. According to Michael Madow, “as the ‘celebrity industry’ has grown in power, organization, and sophistication, and as the costs involved in celebrity production have soared, the pressure for legal commodification of personas has intensified.”[27] With the development of new media technologies, celebrities constantly find their images published in new and creative ways, and the right of publicity has, in turn, expanded to protect more and more aspects of their identities. For example, singer Bette Midler sought protection under the right of publicity when Ford Motor Company used a voice indistinguishable from hers in a product advertisement, thereby implying her endorsement and denying Midler control over the commercial use of her image. The Ninth Circuit held that an identifiable voice, like a name or likeness, constitutes part of a celebrity’s commercial identity, and is thus protected within the purview of the right of publicity.[28] Similarly, as advances in robotics and digital art have made it possible to create robots that closely resemble famous people, celebrities have successfully litigated claims that expand the right of publicity to protect against the publication and distribution of such robots.[29] Thus, the right of publicity has enjoyed increasing strength since its birth in the early 1950s and has been routinely reinterpreted to accommodate changes in technology. As the Internet now flourishes as an evolving publishing medium, the right of publicity must expand to protect different aspects of our identities including our personal information against new intrusions made possible by technology. Whether or not the right of publicity should be expanded to cover personal information is the subject of some considerable debate. While some scholars argue that a person’s name, address and phone number belong to the public domain because “society’s interest in the dissemination of information should outweigh the plaintiff’s interest,”[30] others claim that our personal data “are valuable information assets worthy of recognition that we have property rights in them.”[31] Whether or not courts will extend the doctrine of the right of publicity to protect personal information remains to be seen, but it is the opinion of this author that the right of publicity can and should be extended to protect against the unwanted publication of identifying personal information.

B. Policy Rationales for the Right of Publicity

11. Scholars and courts have isolated four primary policy justifications for the right of publicity: providing incentives for creativity, allowing those who achieve notoriety to enjoy the fruits of their own labor, guarding against consumer deception, and preventing unjust enrichment.[32] The first of these theories suggests that allowing celebrities to profit from the publicity of their images provides them with a necessary economic incentive for creating entertainment and offering that entertainment into the public domain. This economic rationale was embraced by the Supreme Court in Zacchini v. Scripps-Howard Broadcasting Co., which held that the right of publicity “provides an economic incentive for [individuals] to produce a performance of interest to the public.”[33] Indeed, many celebrities work very hard to achieve their notoriety, [34] and financial rewards provide a significant incentive for them to relinquish their privacy and personal freedom and place themselves in the public domain.

12. The closely related labor desert theory holds that, because most celebrities gain notoriety as a result of hard work, they deserve to control and profit from the publication of their images as a reward for the time, skill, and money they have invested in their own fame.[35] This theory of publicity rights has been heavily criticized by Michael Madow, who believes that it is unnecessary to reward celebrities with publicity rights because (1) they already receive adequate compensation in the form of unusually high salaries, public recognition and influence over popular tastes, and (2) their achievement of celebrity status often has little to do with their own “work.”[36] Nonetheless, it continues to be accepted by the vast majority of scholars and courts as a valid, persuasive justification for the right of publicity.

13. A third theory that is frequently advanced as a rationale for the recognition of a right of publicity is that the doctrine prevents consumer confusion. Just as trademark law protects consumers against deceptive use of a symbol or phrase normally associated with a well-known brand or product, the right of publicity holds advertisers accountable for their misleading use of a celebrity image where the celebrity is not actually associated with the publisher of the image.[37] This policy rationale focuses on the potential harms that such behavior could have on society. Certainly, this justification for the right of publicity is rendered somewhat weak by the fact that it overlaps with existing trademark law, which allows celebrities to register their names and images as protected trademarks. However, the right of publicity still allows celebrities who have not registered their images with the Patent and Trademark Office to prevent advertisers from confusing consumers by implying that their products are endorsed by the unwitting celebrity sponsor.

14. The fourth and final rationale for recognizing the right of publicity is that it prevents publishers from unfairly profiting from a celebrity’s public reputation without sharing some of that profit with the celebrity who worked for that reputation. This moral argument reflects a basic societal belief that it is wrong for “free-riders” or “parasites” to appropriate (and profit from) another person’s hard work.[38] It is thought that such “unjust enrichment,” if unchecked, could have far-reaching negative effects for both celebrities and society at large, as it would discourage celebrities from contributing their images to the public domain.[39] As such, courts are eager to cite the prevention of unjust enrichment as a significant reason for the recognition and protection of publicity rights.[40]

15. All four of the policy rationales typically advanced for the right of publicity can be easily applied to amateur Internet publication of non-celebrity images. Allowing all people regardless of prior celebrity status to profit from the use of their personas on websites provides non-celebrities with an economic incentive for making their identities available for public consumption, rewards non-celebrities for the time, skill and money they have invested in making their identities thus available, prevents consumer confusion among Internet audiences, and prevents website publishers who benefit from the use of a non-celebrity’s image from being unjustly enriched by that appropriation.

III. The Right of Publicity for Celebrities v. Non-Celebrities

16. While the right of publicity has gained widespread acceptance, there still remains some question as to who, exactly, enjoys protection under this doctrine. The majority of commentators agree that the right of publicity applies to any person, not just someone who has achieved fame or notoriety.[41] The reason for this, most scholars claim, is that the right of publicity is intended to protect the commercial value of a person’s identity, and thus the material question in determining whether someone’s publicity rights have been violated is whether the identifying characteristics that have been appropriated are “marketable and publicly identifiable”[42] that is, commercially valuable. Though a plaintiff’s celebrity status may be a relevant issue in determining the marketability of his or her personal information, it is not generally considered to be a prerequisite for a claim under the right of publicity. A small minority of scholars suggest that the right of publicity should be limited to celebrities who have attained some level of “demonstrated economic worth,”[43] but most commentators overwhelmingly support the majority view that the right of publicity gives anyone celebrity or non-celebrity the right to control any marketable personal attribute.[44]

17. However, case law tells a different story. Whereas celebrities regularly prevail in litigation challenging the appropriation of their identities,[45] non-celebrities have much more difficulty showing that the commercial value of their identity has been exploited. While many courts have conceded that a non-celebrity has a right of publicity, for the most part these holdings state that the mere fact of the defendant’s use proves that there is a commercial value to the identity, even if it hasn’t been exploited before[46] not that the non-celebrity’s identity has any intrinsic commercial value irrespective of that use.

18. One reason why celebrities generally fare much better in publicity rights cases than non-celebrities is that, for the past decade, the main test for infringement employed by courts has been an “identifiability” test, which requires that the appropriated identity be distinctive and recognizable to those receiving the publicity.[47] This test assumes that it is precisely the widespread idenitifiability of a published persona that makes it commercially valuable. As Thomas McCarthy explains, Identity can be stolen and used to attract attention to an advertisement or product without giving rise to a valid claim of false endorsement. The identity of the famous person is used to cut through the clutter of advertising and to merely draw attention to the advertisement.[48] If an appropriated identity were not identifiable to the publisher’s audience, the publication of that image would not serve the commercially valuable purpose of attracting attention.

19. Yet, the “identifiability” test has been so inconsistently applied that it has become muddled and completely ineffective. This is largely due to the vagueness of the test, which makes it extremely difficult for courts to apply with any degree of consistency. For example, one court considering the appropriation of a famous race car driver’s unique car design specifically stated that a reproduction need not be of the plaintiff’s likeness and that “distinctive decorations” or “markings” are sufficiently identifiable to give rise to a claim under the right of publicity.[49] Yet, in two cases where non-celebrities tried to use this reasoning to protect distinctive aspects of their personas, courts held that these distinctive markings were not sufficiently recognizable to be protected under the right of publicity. In Cheatham v. Paisano Publications,[50] the plaintiff, a clothing designer and motorcycling aficionado, wore one of her own designs to a bikers’ festival: a pair of blue jeans with the bottom cut out and replaced with fishnet fabric. Soon after the festival a picture of her backside was published in a local magazine, and a year later a copy of the design was used in an advertisement for T’Shurte’s t-shirts. Although the plaintiff’s designs were so unique that “her friends and customers recognize them... as hers,”[51] the court expressed “grave doubts that the Plaintiff [could] establish the proof necessary to show a sufficiently wide notoriety for this case to go forward.”[52] Similarly, in Pesina v. Midway Manufacturing Company,[53] the plaintiff was a martial artist whose distinctive movements were used as the basis for the home versions of the Mortal Kombat and Mortal Kombat II video games. Despite the fact that anyone familiar with Pesina’s work would have recognized his movements in these games, the court held that they were not sufficiently recognizable to sustain a publicity rights claim because only 6% of the 306 Mortal Kombat users polled could identify Pesina as the model.[54]

20. These inconsistent holdings betray a decided leaning by courts in favor of national celebrities. Although the “identifiability” test requires only that the published identity be recognizable to those who receive the publicity,[55] the case holdings suggest that, however limited the target audience of a magazine, television broadcast, advertisement, or product might be, a plaintiff’s identifiability will be depend on whether he or she is recognizable to a widespread audience. Thus, the “identifiability” requirement seems to necessitate a certain degree of national celebrity as a prerequisite to a successful claim under the right of publicity, despite legal scholars’ nearly unanimous claims to the contrary.

21. A second reason why existing case law favors celebrity plaintiffs is that, in publicity rights cases where the defendant asserts a First Amendment defense, most courts employ a very celebrity-friendly “purpose of publication” test. The purpose of this test was explained in Dora v. Frontline Video, Inc.:

Though both celebrities and non-celebrities have the right to be free from the unauthorized exploitation of their names and likenesses, every publication of someone’s name or likeness does not give rise to an appropriation action. Publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it, is not ordinarily actionable.[56]

22. Typically, when a publicity defendant claims that his publication is protected under the First Amendment, courts have based their decisions on the medium of the publication. If the plaintiff’s image was published for informational or entertainment purposes he has no cause of action under the right of publicity, but if it was used for commercial purposes, his right of publicity has been infringed and he may receive compensation for the unjust enrichment enjoyed by the defendant.[57] Thomas McCarthy goes as far as to argue that the distinction between commercial and noncommercial publication is irrelevant in a right of publicity analysis, because the right of publicity, by definition, only pertains to commercial uses of a person’s identity. He writes, “While some criticize the right of publicity as posing the danger of invading our free speech rights, in fact, for all practical purposes, the only kind of speech impacted by the right of publicity is commercial speech advertising. Not news, not stories, not entertainment and not entertainment satire or parody only advertising and similar commercial uses.”[58] Thus, the “purpose of publication” test effectively safeguards First Amendment interests by permitting right of publicity claims only when an appropriation arises out of a commercial publication such as an advertisement, not when it arises out of informational or entertainment publications. This ultimately favors the publicity rights of celebrities over those of non-celebrities, because celebrities are far more likely to find their identities exploited for advertising purposes,[59] whereas non-celebrities are more likely to experience inadvertent exploitation of their personas in the news.

23. Yet, the “purpose of publication” test has become increasingly difficult to apply, as the lines between informational, entertainment, and commercial broadcasting have grown unclear. Justice Kozinski, dissenting in White v. Samsung Electronics, explained: “In our pop culture, where salesmanship must be entertaining and entertainment must sell, the line between commercial and noncommercial has not merely blurred; it has disappeared.”[60] Indeed, given the incredibly high profits enjoyed within the news and entertainment industries, it might be argued that the appropriation of an image for informational or entertainment purposes is always, in a sense, commercial, because that content enables the publisher to gain significant revenues from advertising. When we consider the entertainment and news industries as just that, commercial industries, we see that the “purpose of publication” test is, like the “identifiability test,” difficult for courts to apply consistently. Ultimately, this test disadvantages non-celebrity publicity plaintiffs for no good reason.

24. Thus while courts and commentators universally accept the majority view that both celebrities and non-celebrities enjoy a right to control the commercial exploitation of their personas, the application of the right of publicity in case law has overwhelmingly favored the protection of celebrity publicity rights at the expense of non-celebrities. This is because courts have adopted a concept of “commercial value” that is erroneously and unnecessarily dependant upon the widespread identifiability of the plaintiff and the commercial purpose of the publication.

25. This favoritism toward celebrities may become particularly significant when courts are faced with determining the commercial value of publication over the Internet. While many courts have found that non-celebrities can have a right of publicity in their identity, that right is generally based on the monetary gains achieved by the defendant or the losses felt by the plaintiff. Clearly, if this precedent is followed in right of publicity cases involving amateur or not-for-profit websites (which typically achieve no financial gain as a result of the publication), the plaintiff is not likely to prevail unless he can show that he has realized some pecuniary loss as a result of the publication.[61] For this reason, private individuals whose personal information has been published on the Internet on a not-for-profit basis will typically have trouble proving their publicity rights were violated.[62] Furthermore, the idea that a defendant’s use of a non-celebrity’s image, alone, shows that the image is commercially valuable[63] which has typically been the most successful argument employed by non-celebrities to prove the commercial value of their personas may not apply in cases involving Internet publication because the costs of publication are negligible. As more and more publicity rights cases arise out of amateur Internet publication, it is important that courts consider new ways of determining the commercial value of a publicized persona which do not unfairly and unnecessarily disadvantage non-celebrity plaintiffs.

IV. The Right of Publicity as Distinguished from the Privacy Tort

26. The right of publicity is frequently referred to as a “cousin” of the privacy tort.[64] Both doctrines concern the extent to which others may access or utilize the most intrinsic aspects of a person’s identity: his image, space and mobility, beliefs, or personal information. Indeed, both the right of publicity and the right of privacy have theoretical roots (at least in part) in personality theory, which argues that a person’s right to protect the integrity of his persona including any products of his “creativity, originality, and personal expression”[65] is essential to his human dignity. Yet, despite their very similar theoretical foundations, the rights of privacy and publicity are grounded in different legal disciplines. Whereas the right of publicity is a property-based doctrine, invasion of privacy is a tort. As such, causes of action under publicity and privacy though they may have very similar fact patterns are met with very different lines of analysis in court. Privacy claims, on the one hand, focus on the injury to the plaintiff’s psyche, while right of publicity claims focus on the injury to the plaintiff’s pocketbook.[66] Along the same lines, damages in privacy cases tend to be measured by the harm felt by the plaintiff,[67] whereas damages in publicity cases are typically measured by the unjust enrichment enjoyed by the defendant.[68]

27. In his landmark article, “Privacy,” Dean Prosser identified four causes of action under the privacy tort: “[I]ntrusion upon the plaintiff’s seclusion or solitude, or into his private affairs[;] public disclosure of embarrassing private facts about the plaintiff[;] publicity which places the plaintiff in a false light in the public eye[;] [and] appropriation, for the defendant’s advantage, of the plaintiff’s name and likeness.”[69] This last tort, appropriation of the plaintiff’s name and likeness, ultimately became the basis for the right of publicity,[70] and is the branch of privacy that is most relevant to our discussion.

28. Indeed, the first case to recognize a right of privacy, Pavesich v. New England Life Insurance Company,[71] was an appropriation case involving a non-celebrity. The plaintiff’s likeness was appropriated without his permission (and portrayed negatively) in a life insurance advertisement. In holding that the plaintiff’s privacy rights had been violated, the court focused its attention on the indignity which Pasevich suffered as a result of the publication, specifically finding that the commodification of his private likeness, in itself, had compromised the integrity of his persona. The court wrote:

[H]is liberty has been taken away from him, and as long as the advertiser uses him for these purposes, he cannot otherwise than be conscious of the fact that he is, for the time being, under the control of another, and that he is no longer free, and that he is in reality a slave without hope of freedom, held to service by a merciless master.[72]

29. Thus, whereas the right of publicity embraces commodification of the persona as an effective means for each person to control the public use of his image, the right of privacy regards such commodification as a threat which undermines every person’s control over his or her own identity. This apparent inconsistency between the two doctrines has persisted throughout this century, and is alive today. Indeed, in his celebrated response to Dean Prosser, Edward Bloustein argued that the tort of appropriation was “not about appropriating something of monetary value,”[73] but about “demeaning and humiliating” a human being through the commercialization of his persona.[74]

30. In fact, there may be some truth behind the assumption that most celebrities value exposure, whereas non-celebrities value privacy. As such, it may be understandable that celebrities who actively seek publicity may not enjoy full protection under the right of privacy, whereas non-celebrities generally do. However, does it necessarily stand to reason that the inverse is true that non-celebrities have a cause of action under the right of privacy, but have none under the right of publicity? The very fact that courts regularly awards high monetary damages to privacy plaintiffs demonstrates a willingness on the part of courts and juries to place a monetary value on the privacy (or invasion thereof) of non-celebrities. This is, in itself, a way of commodifying that privacy. So while courts have been reluctant to find that non-celebrity identities possess enough commercial value to support a claim under the right of publicity, they have simultaneously perpetuated the practice of valuing the publication of non-celebrity identities through the awarding of damages in appropriation tort cases. In truth, there is no reason why non-celebrities whose identities have been appropriated should not be able to assert a claim under the right of publicity and receive publicity damages that reflect the monetary value of their image established by appropriation tort judgments. And because the appropriation tort is, in so many ways, an insufficient remedy for non-celebrities, the expansion of the right of publicity to protect non-celebrity plaintiffs is not just a possibility; in the new age of Internet publication, where amateur publishers can broadcast the identifying information of non-celebrities at little or not cost, it is a necessity.

V. Why Privacy is an Insufficient Remedy for Non-Celebrities

31. Perhaps there has never been a serious movement to expand the practical application of the right of publicity to protect non-celebrity plaintiffs because the privacy tort has long been perceived as an adequate remedy for non-celebrities. The right of publicity was developed, at least in part, to provide celebrities with a much-needed alternative to the privacy tort, since courts frequently held that celebrities waived any rights to privacy by actively seeking the spotlight.[75] Since non-celebrities whose images or identifying characteristics are published without their permission are able to assert a claim under the appropriation branch of the privacy tort, publicity rights might be seen as superfluous. Yet, a more careful examination of the many drawbacks of the privacy tort shows that it is as insufficient a remedy for non-celebrities as it is for celebrities.

32. In order to prevail under the appropriation branch of the privacy tort, a plaintiff must prove two elements: first, she must demonstrate that the “defendant, without permission, has used some aspect of [her] identity in such a way that plaintiff is identifiable from the defendant’s use;” and second, she must show that “defendant’s use cause[d] some degree of damage to [her] peace of mind and dignity, with resulting injury measured by [her] mental or physical distress and related damage.”[76] Thus, the focus of the privacy tort is on the plaintiff’s reaction to the publication, not on the defendant’s motives or the benefits he enjoyed as a result of the publication.

33. There are a number of reasons why non-celebrity plaintiffs may find the tort of appropriation to be an insufficient remedy. To begin with, the prospect of pursuing a privacy claim may be undesirable to plaintiffs who are unwilling to publicly claim mental distress as a result of the publication. Thomas McCarthy notes,

It has been observed that few plaintiffs go to court to invoke the public disclosure of private facts version of ‘privacy’ because litigation merely further broadcasts the embarrassing facts. Similarly, to prove an appropriation privacy case, non-celebrities may be forced to conjure up evidence of nasty jokes by acquaintances and shock to the nervous system in order to prove indignity and psychic harm. This unnecessarily deters such persons from resorting to the legal system because of the forced disclosure in court of embarrassing personal affairs which often have little to do with the real nature of the grievance.[77]

34. Certainly, plaintiffs in appropriation actions may be uncomfortable with a court proceeding that includes in-depth evaluation of the evidence of their mental distress.[78] Private individuals should be able to assert control over their identities without undergoing the further embarrassment of testifying about their feelings of humiliation in open court. A cause of action under the right of publicity, unlike a privacy claim, requires only that the plaintiff show that the defendant exploited the commercial value of his identity. Thus, right of publicity litigation revolves around a discussion of monetary value, not of humiliation or mental distress, and is better suited to sensitive plaintiffs.

35. Another, related reason why the appropriation tort may not be a sufficient remedy for non-celebrities is that the mental distress mold often requires proof of medical harm, which can be difficult to prove.[79] Though claims of emotional distress by non-celebrities are generally given more credence by courts than similar claims by celebrities,[80] they are nevertheless held to strict standards of proof by the court. The mental distress mold requires that a plaintiff provide detailed evidence of the emotional injury sustained as a result of the publication, which might include documentation of “sleepless nights and psychiatric care,”[81] “nasty jokes by acquaintances”[82] or “snide remarks by co-workers.”[83] In the context of Internet publication, a non-celebrity plaintiff may have particular difficulty showing that the publication resulted in such experiences because the audience is so geographically dispersed as to make direct harassment or mockery which are typically used as proof of emotional distress unlikely. Finally, because courts have been unwilling to find commercial value in the images of non-celebrities, the privacy tort is often the only option for plaintiffs without a strong case for property protection of their personas. The emotional injury requirement can be a particularly large obstacle for these non-celebrity plaintiffs who have suffered no psychic injury, but finds themselves in the impossible position of having to piece together contrived evidence of emotional distress simply because a privacy claim is their only recourse. Surely, non-celebrity plaintiffs whose wish to be reimbursed for the unwanted publication of their image should not be forced to give laborious testimonials about their emotional conditions simply to recover the commercial benefit that the publisher enjoyed as a result of the appropriation.[84]

36. A third reason why the tort of invasion of privacy is not a sufficient remedy for non-celebrities is that it is a weak doctrine that has not been embraced by courts, while the right of publicity has been universally supported by courts and commentators alike.[85] Indeed, one legal scholar has written that,

[C]ommentators have gone so far as to assert that the tort of appropriation has, for all intents and purposes, been largely swallowed up by the property-based right of publicity while the remainder has been rendered inconsequential through the expansion of free speech rights to publish matters of public interest.[86]

37. The unpopularity of the privacy tort stems from critiques that could just as easily be applied to any aspect of tort law namely, that it involves too many nebulous rules that are difficult to define and even more difficult to apply consistently. For example, how does one decide whether a particular appropriation would damage the “peace of mind” of a “reasonable person,” or determine whether the disclosure of certain private facts would be “offensive to persons of ordinary sensibilities.”[87] The undeniable vagueness of such criteria ultimately results in erratic application of the privacy doctrine in case law,[88] and renders the right of privacy considerably less effective than the right of publicity when asserted in court.

38. A fourth reason why non-celebrities should have an alternative to the privacy tort is that reliance on tort law denies the fact that privacy can be monetized, that people actually place a commercial value on their privacy. Margaret Radin and other scholars have proposed that certain aspects of our personas including our privacy are market-inalienable, meaning that they are so intrinsic to our identities that they may not be commodified without seriously threatening the integrity of our personas.[89] These commentators worry that, with the globalization of commerce (hastened considerably by the Internet), our identities will become vulnerable to the same unwelcome “triumphant commercialism” that endangers our community associations.[90] Yet, it is far from clear that this recent shift toward commodification is something that the average person views with apprehension; it is more likely that this trend is something to which we have all contributed. People, including non-celebrities, commodify their privacy every day by taking costly measures to ensure their privacy for example, erecting walls around their property or installing caller ID on their phone lines.[91] The public exploitation of a non-celebrity’s identity can actually result in financial harm to that individual by undermining these measures. Perhaps the best evidence that the public is willing to place a monetary value on privacy is that the privacy tort ultimately places a monetary value on privacy anyway, in the form of mental distress damages. Since this is the case, courts might as well be more direct about the commodification of privacy by applying the right of publicity liberally to non-celebrity plaintiffs so that they openly can discuss the monetary value of their personal information often their primary concern in court.

39. The final reason why the tort of invasion of privacy, alone, is not a sufficient remedy for non-celebrities whose personas have been appropriated is that, unlike the right of publicity, privacy rights are not descendible or assignable.[92] Thus, while a privacy plaintiff cannot pass the value of his identity on to his descendants, [93] the families of famous individuals with easily substantiated publicity interests regularly assert those interests after the individual’s death.[94] Ultimately, this accounts for a significant difference in the overall monetary value of the publicity right as compared with the privacy right, since the descendants of a publicity plaintiff can continue to assert his right of publicity (and reap the financial benefits of such assertion) long after he has died. Indeed, this difference in value is perceived as so significant that some scholars have gone as far as to argue that descendibility is the single biggest issue that distinguishes the appropriation branch of the privacy tort from the right of publicity.[95] However significant one might perceive this difference in value to be, it is clear that it creates a marked disadvantage for non-celebrities who are unable to assert their publicity rights.

40. Evidently, there are quite a few reasons why non-celebrities might find the privacy tort to be an insufficient means of protection against appropriations of their images or other aspects of their identities. Real space experience has shown that the privacy tort encompasses several major defects that render it both cumbersome to plaintiffs and unsuitable for the purposes of compensating for unwanted appropriations. As a result, the application of the privacy doctrine by courts has been “disjointed, inconsistent, and limited by conflicting interests.”[96] There is no reason to think that privacy claims involving publication of non-celebrity identities on the Internet will not suffer from the same inadequacies. In fact, when we consider how Internet publication has changed the economic incentives for appropriating non-celebrity personas, we will see that Web publishing creates an even more urgent need to expand the application of the right of publicity to embrace non-celebrity plaintiffs.

VI. The Advent of Web Publishing: A New Economic Model

41. The right of publicity, as envisioned by most courts and legal scholars, rests on a number of assumptions that are now challenged by the advent of Web publishing. The development and growing accessibility of the Internet has increased the amount and quality of content available to readers, the ease of transmitting messages to a large and geographically dispersed audience, and the relationship that private citizens have with the media both as consumers and as subjects.[97] In turn, Internet publishing has radically altered several of the major economic assumptions upon which right of publicity jurisprudence is based. Like so many technological innovations before it, the Internet (and Internet publishing specifically) necessitates a reexamination and expansion of the doctrine of the right of publicity to accommodate these changes.

A. Assumption 1: The Value of Published Content is Reflected in High Production Costs

42. The first assumption challenged by the Internet is that publishing is costly and requires some significant investment of money, time or expertise. Until now, the vast majority of litigated publicity cases have involved publication in advertising or print media, usually at some significant cost to the publisher. Because the right of publicity only allows the plaintiff to control those aspects of his persona which are “marketable,” the high cost of publishing in a newspaper or on television serves as a useful proxy in determining whether an appropriated characteristic is, in fact, commercially valuable. For celebrities, who are regularly paid for the use of their images in advertising and other publication, the commercial value of their identities can be easily demonstrated. But for non-celebrities, who cannot refer to prior advertising contracts as evidence of the marketability of their personal attributes, the high cost of advertising and other publication is an important element in proving that their publicized image was commercially valuable. Indeed, many right of publicity cases involving non-celebrities have held that mere fact of publication shows that the plaintiff’s identity has a commercial value even if it has never been exploited before because the publisher’s willingness to assume the costs of publication indicates an expectation of a return on that investment.[98]

43. What impact does this legal precedent have in the world of amateur Web publishing, where unlimited bandwidth, negligible publishing costs and minimal required expertise combine to virtually eliminate all barriers to entry into the publishing world?[99] Today, anyone with a computer and the most basic level of Internet knowledge can disseminate their ideas to the world through a professional-quality website. As readers rely more and more upon the Internet and Web search engines to gather information (approximately half of all “hits” received by any given website are generated by search engines), it becomes much easier for amateur publishers to attract a certain readership by “meta tagging” their pages with popular key words.[100] The Internet has made it so easy for publishers to reach readers at little or no cost that many legitimate authors have begun to publish their books on-line. In 1995, the University Press of Virginia noticed that several academic journals had begun publishing over the Web, and consequently became the first American academic press to publish a book on-line[101]; in 1998, a novel published exclusively on the Internet was nominated for the Booker Prize, England’s most coveted literary honor.[102] In recent years, most major newspapers have begun to publish on-line because it appears to be the only way they can recapture their “steadily declining readership.”[103] With such high-quality content available on the Web, more and more readers in search of information now turn to search engines instead of library catalogs. And because the use of search engines has become standard procedure in reading on-line, the likelihood that readers will stumble upon an amateur Web author’s page can be fairly high, depending on the author’s aptitude in using meta tags.

44. As more and more newspapers and magazines “professional” and “amateur” have begun publishing their content on the Internet, the distinction between professional and amateur publications has become blurred. Although some publications trying to make the transition onto the Internet have simply replicated their traditional publishing model on-line, requiring readers to “buy” downloadable books or “subscribe” to on-line newspapers or magazines, this model has not been particularly successful. Today, many traditional, for-profit magazines and newspapers offer their content to on-line readers for free. In many ways, this makes them virtually indistinguishable from amateur Web ’zines: while established on-line magazines may enjoy more name recognition than their amateur counterparts, they are not necessarily more slick-looking or more prominently displayed in virtual space as they might be on a newspaper stand. In fact, the mere fact that an amateur ’zine is handsomely printed and widely accessible may give that publication an air of authenticity in the minds of readers.[104] Furthermore, as advertising has evolved as the leading revenue model for Internet publications, the distinction between professional and amateur publishers has become even fuzzier. Any on-line publisher who can show that his site enjoys a great deal of traffic however generated can attract advertisers who, in addition to producing revenue for his site, will also lend it legitimacy through the appearance of corporate sponsorship. Suddenly, the “commercial value” of the content of a publication can no longer be measured in terms of the high cost of printing or the subscription costs paid by readers. For on-line publications, the market value of their content is more accurately determined by the number of “hits” the site gets or the number of “eyeballs” that see the publisher’s message.[105]

45. How does this new perception of the “commercial value” of content on the Internet impact our understanding of publicity rights? In short, the very different economic model that governs advertising and publishing on the Web demands new legal approaches that comport with this model. Within the context of publicity rights, this means that we must expand our concept of who is protected to include both celebrities and non-celebrities. Furthermore, we must recognize that the commercial value of a publicity plaintiff’s marketable image can be measured in new ways which are more reflective of the Internet’s traffic-based revenue model; as such, right of publicity jurisprudence must recognize that the exploitation of publicity rights may occur through publication on both professional (for-profit) and amateur (not-for-profit) websites.

46. Already, this shift in the definition of commercial value has been evident in Internet-related publicity rights cases. In Louder v. CompuServe, Inc.,[106] a California right of publicity case arising from the unauthorized publication of a model’s photos in CompuServe’s photo library, the plaintiff claimed that making the photos accessible to CompuServe subscribers, who pay CompuServe for Internet access by the minute, was a commercial use regardless of whether the viewers paid for the pictures directly. Similarly, Blumenthal v. Drudge[107] involved a website called “the Drudge Report” (www.drudgereport.com) which published accusations that White House employee Sidney Blumenthal had beaten his wife. Although the plaintiffs brought a claim under the Communications Decency Act and not the right of publicity, they nonetheless characterized the Drudge Report as a “commercial” site despite the fact that it had been available for free long before Matthew Drudge began receiving royalties for his content from Wired Magazine and America Online (AOL). Here, the issue was not whether the site was amateur, professional, or amateur-with-sponsorship (semi-professional); it was whether the site reached enough readers to indicate that its content was commercially valuable. This distinction should also serve as a useful method of understanding the meaning of “commercial value” on the Internet in the context of publicity rights.

B. Assumption 2: The Market for Publication of Non-Celebrity Images is Limited

47. Because publicity rights jurisprudence presupposes that publishing space is limited and that consumers have a much stronger desire for information about celebrities than they do for information about private individuals, the associated commercial value of non-celebrity images is also assumed to be extremely limited. This is, perhaps, the main reason why the right of publicity has always focused so singularly on celebrity images. The Internet challenges this assumption by providing publishers with a medium for disseminating low-profit information at little or no cost, and by instilling readers with a newfound appetite for personal information about non-celebrities.

48. Unlike earlier forms of disseminating information, Internet publishing allows authors to upload as much content to the Web as they see fit. The size and format of an Internet publication is constrained more by the reader’s attention span than it is by the amount of space available. Limited bandwidth is a thing of the past. For this reason, more and more people are using the vast and inexpensive medium of the Internet to publish information about non-celebrities information that would never be printed in real space, either for reasons of cost-effectiveness or for reasons of legal liability.[108] This trend is accompanied by a growing market for “real world” entertainment, as evidenced by the soaring popularity of media programs about the lives of “average people.” This new genre or television programming, often referred to as the “docu-soap,” started with MTV’s “The Real World,” which documents the lives of seven actual strangers living in an apartment together, and spawned similar shows such as CBS’s “Survivor” (about a group of strangers living together on an island) and “Big Brother” (about a group of strangers living together in a house). Other popular forms of real world entertainment include Court TV, TLC’s “A Baby Story” (which broadcasts live births), and most infamously, the television event called “Who Wants to Marry a Multi-Millionaire,” in which fifty real women competed for the opportunity to marry a wealthy bachelor on live television.[109] This trend is equally apparent on the Internet, where websites like “Vivian Lives” (www.vivianlives.com), which continuously broadcasts the life of a young woman in New York City, have been met with just as much popularity as their television counterparts. Whatever the medium, these programs have been wildly successful, and this positive response from audiences makes it very likely that media portrayals of non-celebrities will only increase as time goes on.

49. Under the economic model that governs traditional publishing, images of non-celebrities are not sufficiently publishable to offset the high costs of production. However, the plethora of websites that publicize the identities of private individuals suggests that this is not the case in the world of Internet publishing. In 1995, for example, an unidentified prankster used the Internet as a medium to post defamatory messages suggesting that a man named Ken Zeran was selling t-shirts that joked about the Oklahoma City bombing. In real space, the high cost of advertising and publishing, along with the low demand for information about non-celebrities, would have prevented anyone from perpetrating this hoax within a print or video publication; but on the Internet, this phony message (which included Zeran’s telephone number) reached thousands of readers and subjected Zeran to endless angry, harassing phone calls.[110]

50. The incentives for publicizing information about non-celebrities over the Web are not always purely malicious; they range from the personal to the entrepreneurial and commercial. The Nuremberg Files website, which listed the addresses, phone numbers, family members, license plate numbers and driving routes for hundreds of abortion providers, was certainly inspired in part by Neal Horsley’s personal crusade against abortion. However, it was also an advertising vehicle used by the American Coalition of Life Activists to broadcast their principles to as wide an audience of potential members and sponsors as possible.[111] Clearly, the ACLA thought that the information published in the Nuremberg Files would attract readership and support within the pro-life community, two things of particular value to that organization. In other words, the ACLA believed there was a market for such personal information about abortion providers, despite the fact that they are not celebrities.

51. Another amateur website, “Small Town Justice,” (www.smalltownjustice.com), chronicles the ongoing court battle between the author, Judy Komaromi, and Los Angeles Police Office Greg Mason. In an attempt to publicly defend herself against charges of reckless driving and evading arrest, Komaromi published an elaborate website accusing Officer Mason of “planting evidence” and “framing [her] for a crime.”[112] Her familiarity with meta tags enabled her to draw a sizeable local audience to her website, and Officer Mason soon found that thousands of readers were privy to not only her allegations, but also personal information about himself and his family.[113] Komaromi’s interest in publicly humiliating the officer instilled his personal information with a commercial value that made it valuable to publish, and the public’s fascination with scandal and local gossip made it valuable to read despite the fact that her complaints were not considered legitimate enough or newsworthy enough to be covered by the traditional press.

52. Finally, “The Smoking Gun” (www.thesmokinggun.com) is an on-line gossip magazine much like the Drudge Report. It enjoys a wide readership, and is supported by such prominent advertisers as Visa and Alta Vista. The authors of The Smoking Gun search public records for documents involving celebrities and publish any potentially scandalous documents on their site, but while most of the stories published on The Smoking Gun feature celebrities, the site occasionally runs stories about private citizens. Most of these stories are based upon public records; for example, one column featured the humorous and very detailed arrest report that resulted from a Miami, Florida man’s drunken incident on an airplane,[114] and another displayed a scanned copy of the one-sided marital agreement reached by a Washington, DC couple.[115] While such documents like the phone numbers of abortion providers listed on the Nuremberg Files are technically matters of public record, this does not necessarily mean that they are matters of public interest or that their publication is protected by the First Amendment. Their use on this site is intended to draw readership, and thus to increase the marketability of the website under the advertising revenue model described above. While a private couple’s marriage agreement may seem to be of minimal commercial value in a limited-bandwidth world where its humor value is far outweighed by the costs of publication, a Web publisher evidently felt that it was sufficiently valuable material to be featured in a highly-read Internet magazine. Certainly, if The Smoking Gun is going to profit from that couple’s personal information, the couple should at least be able to control and profit from that information as well.

53. These examples clearly demonstrate that the combination of the Internet’s unlimited bandwidth and the public’s growing appetite for “real world” entertainment create a very different publishing environment in which incentives for publishing the personal information and images of non-celebrities are abundant, suggesting that such portrayals enjoy considerable commercial value.

C. Assumption 3: Publicity is Valued Positively By All People

54. The third and final assumption challenged by the advent of amateur Internet publishing is the idea that publicity is valued positively by all people that any person would want to profit from the publication of his or her image, if given the chance. Yet, for non-celebrities, those who actively seek to stay out of the public view, publicity has a distinctly negative value. This negative value is evident in privacy suits, where damages are traditionally measured according to the harm felt by the plaintiff whose identity has been publicized without permission. However, in right of publicity cases, courts typically measure the commercial value of a plaintiff’s image in terms of the positive value enjoyed by the publisher who used the image (the unjust enrichment value). Courts might consider a variety of criteria in determining this commercial value, including what the publisher would have been willing to pay for the use of the image, what financial benefits the publisher enjoyed as a result of using the image, and what other publishers have paid to use the image in the past. Yet, all of these criteria are overwhelmingly focused on the positive value of the image to the publisher. This image of publicity value assumes that the plaintiff is indifferent about the publication of his or her image, but recognizes its positive value to the publisher and thus expects to be compensated for the value conferred through publication. It recognizes that most celebrities have actively sought out their fame, and see their image as a positive asset that they can trade on the entertainment market.[116] But while this may be an accurate method of determining the commercial value of a celebrity identity published in real space, it is an inappropriate tool for assessing the value of a non-celebrity’s identity published on the Internet.

55. Because of the negligible cost and unlimited bandwidth of Web publishing, an amateur Internet publisher may broadcast a non-celebrity’s image without any regard to financial gain. For non-celebrities, who are unable to demonstrate the commercial value of their images through past licensing agreements or financial benefits enjoyed by the publisher as a result of the use, the true value of the published image is not the positive value gained by the publisher; rather, it is the negative value that they incur as a result of the publication. Just as celebrities have actively sought the public eye, non-celebrities have often invested themselves heavily in avoiding the public eye. The high monetary value that they place on their immunity from publication is evident in the fact that they have specifically avoided publicity, despite the significant economic rewards that come from fame and notoriety. So why not measure the commercial value of non-celebrity identities according to more plaintiff-focused criteria, such as what the individual would need to be paid to allow the use, or what the individual would pay to prevent the use?

56. One possible reason that courts have been reticent to recognize these negative commercial values associated with publicity is that they are uncomfortable with the monetization of privacy and personal information. Many legal scholars have argued that certain aspects of our personas are priceless, and must be protected from valuation within the commercial market.[117] The most vocal of these scholars is Margaret Jane Radin, who argues against “universal commodification”[118] by suggesting that some aspects of our identities are so intrinsic that they may not be separated through sale or any other means. She calls these aspects of our personas “market-inalienable.” According to Radin, “the person cannot be an entity exercising free will if it is a manipulable object of monetizable value.”[119] But while there are certainly some aspects of our identities that are so basic that they are inseparable from our persons, our names, likenesses, and personal information do not fall into this category. Our culture sanctions the monetization of these aspects of identity in a number of ways. Celebrities are paid for the use of their images through an entertainment industry that enjoys widespread public support. And indeed, just as celebrities are regularly paid for the use of their personas, non-celebrities regularly pay to avoid the publication of their images and identifying information. Non-celebrities frequently request unlisted telephone numbers, get caller ID or call blocking, purchase software programs that filter out email from unknown sources, install high walls or fences around their homes, hire security personnel, or pay a premium to live in “quiet” towns and neighborhoods where they can live anonymously. Clearly, non-celebrities spend considerable amounts of money to avoid the public eye. In cases where an amateur Internet publisher broadcasts a non-celebrity's personal information over the Web, these expenditures can be used to demonstrate that the plaintiff places a significant negative commercial value on publicity. In light of the new incentives to publish non-celebrity images over the Internet, this negative commercial value must be recognized and made available to non-celebrity plaintiffs whose appropriated images “have... little or only a nominal value” under a traditional right of publicity analysis.[120]

VII. Conclusion

57. For years, courts and scholars have enthusiastically recognized a right of publicity for celebrities and non-celebrities alike. Yet, when it comes to applying the right of publicity, courts have overwhelmingly favored lines of analysis which favor celebrity plaintiffs, effectively relegating non-celebrities to the inefficient and unpredictable domain of tort law. As a result, non-celebrities like the doctors depicted in ACLA’s Nuremberg Files are often unable to recover that value without the enduring the trouble and embarrassment of a privacy suit unless special statutory remedies are available. This is true even though non-celebrities regularly demonstrate the high monetary value of their personas by undertaking considerable effort and expense to protect their privacy. This is also true in spite of the widespread belief among scholars and judges that non-celebrities enjoy a right to control their own publicity just as celebrities do.

58. The universal availability of Internet publishing demands that courts reconsider their implementation of publicity rights doctrine. Just as other technological innovations in publishing have prompted the expansion of privacy and publicity rights in the past, the development of web publishing as a principal means of conveying information requires that courts today extend the application of the right of publicity to protect non-celebrities and celebrities alike. Only then will the doctrine exhibit the same potency in practice that it has in theory.

[1]

[2] Court Rules Site is a Menace, Wired News, Feb. 2, 1999, at http://www.wired.com/news/politics/0,1283,17700,00.html(last visited on March 8, 2001).

[3] Neal Horsley, The Nuremburg Files: Abortionists on Trial, at http://www.xs4a11.nl/~oracle/nuremberg/aborts.html (last visited on Jan. 29, 2001).

[4] Id.

[5] Maria Elena Baca, Minnesota Doctor on Web Site Moves About with Care, Minneapolis Star Tribune, Feb. 3, 1999, at 6A.

[6] Lynne K. Varner, Doctor’s Death Leaves Abortion Providers More Fearful Than Ever, The Dallas Morning News, Nov. 8, 1998, at 14A.

[7] Id.

[8] Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 41. F. Supp. 1130 (D. Or. 1999).

[9] Robert G. Gibbons & Lisa M. Ferri, IP Policing a Priority Amid Profusion of Online Privacy, Nat’l L.J., Oct. 4, 1999, at B7.

[10] Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 99-35320 (9th Cir. 3/28/01) available at http://www.ce9.uscourts.gov/web/newopinions.nsf/4bc2cbe0ce5be94e88256927007a37b9/1b21cad7a2e437d988256a1d006a03a1?OpenDocument. The Nuremberg Files website, re-published after the Ninth Circuit's decision, can be found at http://www.christiangallery.com/.

[11] Telephone Interview with Amy Brown, attorney for the plaintiff Planned Parenthood of Columbia/Willamette, Paul, Weiss, Rifkind, Wharton & Garrison (March 9, 2000).

[12] William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383 (1960).

[13] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).

[14] Prosser, supra note 11, at 394.

[15] Melvin B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954).

[16] See generally, Fred H. Cate, Privacy in the Information Age (1997) (“As information technologies spread and reliance on them increases, as the volume of data generated and recorded skyrockets, and as the cost of processing those data declines, the perceived need to protect information privacy is growing.” Id. at 101).

[17] J. Thomas McCarthy, The Human Persona as Commercial Property: The Right of Publicity, 19 Colum.-VLA J.L. & Arts 129, 130 (1995) [hereinafter McCarthy, The Human Persona as Commercial Property].

[18] Nimmer, supra note 14, at 208-9.

[19] As early as 1905, courts recognized that plaintiffs had a property interest in the commercial value of their images. Justice Reid of the Supreme Court of Georgia wrote in Pavesich v. New England Life Insurance Co., “I think that the plaintiff has the same property in the right to be protected against the use of her face for defendants’ commercial purposes as she would have if they were publishing her literary compositions.” 50 S.E. 68, 79 (Ga. 1905). Yet, despite this recognition of the plaintiff’s property interests, the case was ultimately decided on tort, not property, grounds. Indeed, throughout the first half of the 20th century, property interests often influenced invasion of privacy suits, as damages were increasingly measured in terms of lost compensation and unjust enrichment. See, Jonathan Kahn, Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity, 17 Cardozo Arts & Ent. L.J. 213, 230 (1999).

[20] 202 F.2d 866, 868 (2d Cir. 1953), cert. denied, 346 U.S. 816 (1953).

[21] Haelan, 202 F.2d at 868.

[22] Nimmer, supra note 14, at 203.

[23] Id. at 215.

[24] States with common-law sources for the right of publicity include Alabama, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Kentucky, Michigan, Minnesota, Missouri, New Jersey, Ohio, Pennsylvania, Texas, Utah and Wisconsin. See, J. Thomas McCarthy, The Rights of Publicity and Privacy 6.3 (2000) [hereinafter McCarthy, The Rights of Publicity and Privacy].

[25] State statutory sources of publicity rights include: Cal. Civ. Code 3344-3344.1 (West 1997 & Supp. 2001); Ind. Code Ann. 32-13-1-8 (Michie 1995); Ky. Rev. Stat. Ann. 391.170 (Michie 1999); Mass. Gen. Laws. Ann. ch. 214 3A (West 1989); Neb. Rev. Stat. 20-201 211 (1999); Nev. Rev. Stat. Ann. 597.770 -597.810 (Michie 1999); N.Y. Civ. Rights Law 50, 51 (McKinney 1992 & Supp. 1996); Okla. Stat. Ann. tit 21, 839.1-2 (West 1983); R.I. Gen. Laws 9-1-28 - 29.1 (1997); Tenn. Code Ann. 47-25-1101 1108 (1995); Utah Code Ann. 45-3-1 - 3-6 (1998); Va. Code Ann. 8.01-40 (Michie 2000); and Wis. Stat Ann. 895.50 (West 1997).

[26] See, Restatement (Third) of Unfair Competition 46-49 (1995) (“One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability.” The publication has been used for purposes of trade “if they are used in advertising the user’s goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user.” In such cases, the publisher “is liable for the pecuniary loss to the other caused by the appropriation or the actor’s own pecuniary gain resulting from the appropriation, whichever is greater.” “The appropriate method of measuring such relief depends upon a comparative appraisal of all the factors of the case, including the following primary factors: (a) the degree of certainty with which the plaintiff has established the fact and extent of the pecuniary loss or the actor’s pecuniary gain resulting from the appropriation, (b) the nature and extent of the appropriation, (c) the relative adequacy to the plaintiff of other remedies, (d) the intent of the actor and whether the actor knew or should have known that the conduct was unlawful, (e) any unreasonable delay by the plaintiff in bringing suit or otherwise asserting his or her rights, and (f) any related misconduct on the part of the plaintiff.”).

[27] Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L. Rev. 125, 177 (1993).

[28] Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). See also, Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (holding that Frito-Lay had violated the publicity rights of singer Tom Waits by imitating his voice in a commercial for tortilla chips).

[29] See, White v. Samsung Elec. Amendment. Inc., 971 F.2d 1395 (9th Cir. 1992) (in which Vanna White successfully argued that the use of a robot which closely resembled her in a commercial for electronic equipment violated her right of publicity); and Wendt v. Host Int’l, Inc., 125 F.3d 806 (9th Cir. 1997) (holding that robot versions of George Wendt and John Ratzenberger, installed in “Cheers” restaurants around the country, violated those actor’s rights of publicity).

[30] Roberta Rosenthal Kwall, The Right of Publicity v. the First Amendment: A Property and Liability Rule Analysis, 70 Ind. L. J. 47, 91-92 (1994).

[31] Anne Wells Branscomb, Who Owns Information?: From Privacy to Public Access 29 (1994).

[32] Kwall, supra note 29, at 54-55.

[33] 433 U.S. 562, 576 (1977) (holding that a local television news program had violated the publicity rights of a “human cannonball” performer by broadcasting the entirety of his act on the air against his wishes and thus “pos[ing] a substantial threat to the economic value of that performance.” Id. at 575).

[34] Madow, supra note 26, at 191-193 (“Especially in the entertainment world, the production of fame and image has become more organized, centralized, methodical, even ‘scientific.’ The work of ‘fashioning the star out of the raw material of the person’ is done not only by the star herself, but by an army of specialists consultants, mentors, coaches, advisors, agents, photographers, and publicists”).

[35] Id. at 175-176, 182-185.

[36] Id. at 182-196.

[37] Id. at 228-238.

[38] Id. at 196.

[39] Kwall, supra note 29, at 85.

[40] See, Zacchini v. Scripps-Howard Broad. Co., 433 U.S. at 576; and Midler v. Ford Motor Co., 849 F.2d at 462.

[41] McCarthy, The Rights of Publicity and Privacy, supra note 23, at 4.3[F]. See also, Nimmer, supra note 14, at 217; Kwall, supra note 29, at 55-56; McCarthy, The Human Persona as Commercial Property, supra note16, at 134; Symposium: Rights of Publicity: An In-Depth Analysis of the New Legislative Proposals to Congress, 16 Cardozo Arts & Ent. L.J. 209, 227 (1998).

[42] Kwall, supra note 29, at 55.

[43] Peter L. Felcher and Edward L. Rubin, Privacy, Publicity, and the Portrayal of Real People by the Media, 88 Yale L.J. 1577, 1591 n.78 (1979).

[44] See infra note 40.

[45] See, e.g., Midler, 849 F.2d 460 (9th Cir. 1988); Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983); Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974); Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981); Martin Luther King Jr. Ctr. For Social Change, Inc. v. American Heritage Products, Inc., 296 S.E.2d 697 (Ga. 1982).

[46] See, e.g., Motschenbacher, 498 F.2d at 824 n.11; Dora v. Frontline Video, 15 Cal. App. 4th 536, 536 n.2 (1993); Cheatham v. Paisano Publns, Inc., 891 F. Supp. 381, 386 (W.D. Ky. 1995).

[47] See McCarthy, The Human Persona as Commercial Property, supra note 16; Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1098, 1101-1102 (9th Cir. 1992); Pesina v. Midway Mfg. Co., 948 F. Supp. 40, 42 (N.D. Ill. 1996); Cheatham, 891 F. Supp. at 386-387.

[48] McCarthy, The Human Persona as Commercial Property, supra note 16, at 135.

[49] Motschenbacher, 498 F.2d at 827 (holding that a famous race car driver’s unique red and white car design was sufficiently recognizable to give that driver a claim under the right of publicity when his car and no part of his likeness was replicated in a television commercial).

[50] 891 F. Supp. 381 (W.D. Ky. 1995).

[51] Id. at 384.

[52] Id. at 387.

[53] 948 F. Supp. 40 (N.D. Ill. 1996).

[54] Id. at 42.

[55] Waits, 978 F.2d at 1098, 1101-1102.

[56] Dora, 15 Cal. App. 4th at 542. See also, Zacchini, 433 U.S. at 574 (stating that the right of publicity may not be invoked to prevent the publication of “newsworthy facts”).

[57] Kwall, supra note 29, at 50-51.

[58] McCarthy, The Human Persona as Commercial Property, supra note 16, at 131.

[59] Id. at 135.

[60] White, 989 F.2d at 1520 (Kozinski, J., dissenting).

[61] See, Leary v. Punzi, 1999 N.Y. Misc. LEXIS 90 (Supr. Ct. N.Y. 1999) (holding that “Plaintiff’s publicity rights... were not violated when her name was used on a Web site in a fleeting and incidental manner and not to directly promote the organization. The Web site, maintained by a third party and based on outdated information, listed her name as a contact person for the former employee.”).

[62] Id.

[63] See infra note 44.

[64] Kahn, Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity, 17 Cardozo Art & Ent. L.J. 213 at 213-214 (1999).

[65] Justin Hughes, The Personality Interests of Artists and Inventors in Intellectual Property, 16 Cardozo Arts & Ent. L.J. 81, 89 (1998).

[66] McCarthy, The Rights of Privacy and Publicity, supra note 23, at 5.8[C].

[67] Harry Kalven, Jr., Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contemp. Probs. 326, 334 (1966).

[68] Lugosi v. Universal Pictures, 25 Cal. 3d 813, 835-836 (1979) (dissent) (explaining that “the gravamen of the harm flowing from an unauthorized commercial use of a prominent individual’s likeness in most cases is the loss of potential financial gain, not mental anguish”). See also, Zacchini, 433 U.S. at 576 (recognizing that prevention of unjust enrichment is the rationale for the right of publicity).

[69] Prosser, supra note 11, at 389.

[70] William J. Fenrich, Common Law Protection of Individuals’ Rights in Personal Information, 65 Fordham L. Rev. 951, 998 (1996). See also, Restatement (Second) of the Law of Torts 652A (1977).

[71] 50 S.E. 68 (Ga. 1905).

[72] Id. at 80.

[73] Edward Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 968 (1964).

[74] Id. at 987. See also, Kahn, supra note 63, at 224-225.

[75] Nimmer, supra note 14, at 204-206.

[76] McCarthy, The Rights of Privacy and Publicity, supra note 23, at 5.8[B].

[77] Id. at 4.3 [E].

[78] Indeed, in PPCW, the plaintiffs abandoned their tort claim against the publisher of the Nuremberg Files of intentional infliction of emotional distress because they decided that the difficulty of proving emotional distress outweighed the possibility of prevailing on that claim. Telephone Interview with Amy Brown, supra note 9.

[79] Nolley v. County of Erie, 802 F. Supp. 898, 904 (W.D.N.Y. 1992). But c.f. Prosser, supra note 11, at 409 (arguing that “[T]he difficulty of measuring damages is no [] reason to deny relief [since] substantial damages may be awarded for the presumed mental distress inflicted, and other probably harm, without proof”).

[80] Jeffrey Malkan, Stolen Photographs: Personality, Publicity, and Privacy, 75 Tex. L. Rev. 779, 825 (1997).

[81] J. Thomas McCarthy, Melvin B. Nimmer and The Right of Publicity: A Tribute, 34 UCLA L. Rev. 1703, 1710 (1987) [hereinafter McCarthy, Melvin B. Nimmer and The Right of Publicity: A Tribute].

[82] McCarthy, The Rights of Privacy and Publicity, supra note 23, at 5.8[B].

[83] Kahn, supra note 63, at 244.

[84] J. Thomas McCarthy, Melvin B. Nimmer and The Right of Publicity: A Tribute, supra note 80, at 1710.

[85] Madow, supra note 26, at 2.

[86] See Kahn, supra note 63, at 225-226. See also, Kalven, supra note 65.

[87] Nimmer, supra note 14, at 207.

[88] Kahn, supra note 63, at 255 (noting that the inconsistent application of the criteria used in privacy cases “function[] to reinforce the social rules of inaccessibility applicable to females”).

[89] Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1905 (1987). See also, Sheldon W. Halpern, The Right of Publicity: Commercial Exploitation of the Associative Value of Personality, 39 Vand. L. Rev. 1199, 1238 (1986).

[90] Kahn, supra note 63, at 222.

[91] See supra notes 116-118 and accompanying text.

[92] See Kwall, supra note 29, at 81-85; Madow, supra note 26, at 133 n. 27; Felcher & Rubin, supra note 42, at 1593-1594.

[93] Prosser, supra note 11, at 408-409.

[94] See, e.g., Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981); Martin Luther King Jr. Ctr. For Social Change, Inc. v. American Heritage Products, Inc., 296 S.E.2d 697 (Ga. 1982).

[95] Symposium: Rights of Publicity: An In-Depth Analysis of the New Legislative Proposals to Congress, 16 Cardozo Arts & Ent. L.J. 209, 227-228 (1998) (quoting Diane L. Zimmerman, Professor of Law, New York University School of Law).

[96] Cate, supra note 15, at 98.

[97] Id. at 1,6.

[98] McCarthy, The Rights of Privacy and Publicity, supra note 23, 4.3[C]. See, Canessa v. J. I. Kislak, Inc., 97 N.J. Super. 327, 235 A.2d 62, 75 (1967); Motschenbacher, 498 F.2d at 825; Dora, 15 Cal. App. 4th at 542. See also, Munden v. Harris, 153 Mo. App. 652 (1911) (holding that a child has a right to control the use of his identity, even if has not been previously commercially exploited).

[99] Cate, supra note 15, at 14-15.

[100] Suddenly Everyone Can Be a Publisher Watch Out!, Interactive PR & Marketing News, April 30, 1999, at 9 (explaining that “content gets ranked and included in Web engine searches based on many factors including meta tags”, which are “key words specifically included on the source page of your HTML document that allow search engines to respond to user queries”).

[101] Ian Zack, UVA is First to ‘Print’ a Book On-Line, Roanoke Times & World News, January 29, 1995, at D6.

[102] Aline McKenzie, The Good, the Bad, the Published, The Dallas Morning News, August 19, 1998 at F1.

[103] Tim Jones, Newspapers Rush Across Technological Threshold to Secure a Future: Behind an Innovating Industry, ‘Everyone’s a Little Bit Scared’, Chi. Trib., April 10, 1994, at 1.

[104] See, Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J.L. & Tech. 495, 507 (1997) (“It’s just too difficult in the physical world for an individual not expressly in the journalism trade (and hired or backed by a publisher of some kind) to get [an] article in front of many pairs of eyes.”).

[105] Kahn, supra note 63, at 245, 258-259 (explaining that an appropriated image’s ability “to draw attention to the publication” is one of the primary measures of the value of that image).

[106] Louder v. Compuserve, Inc., BC153274 (Los Angeles Superior Court, filed July 5, 1996). Case settled, per telephone conversation with Joel Amkraut, attorney for plaintiffs, March 14, 2000.

[107] Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). See also, Matthew Drudge, Drudge Report: New White House Recruit Sidney Blumenthal has Spousal Abuse Past, at http://thesmokinggun.com/archive/drudge3.html(last visited March 8, 2000).

[108] See, Jonathan Zittrain, supra note 103, at 507 (“A total free-lancer [in the physical world] would have to be risk-assuming enough to have his or her untrue, nasty letter to the editor about the next-door neighbor actually published by the paper which, wanting to avoid liability itself, would put its relatively sophisticated knowledge of libel law to work to help filter such material out. The sorts of speech-based harms for which individuals would legally pursue other individuals don’t happen in the real world because in the real world individuals without institutional sponsorship or collaboration cannot speak to the world at large. Not so on the Net.”).

[109] Mark Lorando, Live on Voyeur Vision, The Times-Picayune, May 2, 2000, at F1 (“There are a number of ways to become famous that aren’t available to everybody. But the one way that is available is to sacrifice your privacy, and possibly some of your dignity. For some people, that end is worth the means”).

[110] Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); cert. denied, 524 U.S. 937 (1998).

[111] Planned Parenthood of the Columbia/Willamette, 41. F. Supp. 2d. at 1153 (holding that Neal Horlsey did not administer the Nuremberg Files website independently, but rather did so “as an agent and co-conspirator of defendant”). See also, Neal Horsley, The Nuremburg Files: Abortionists on Trial, (soliciting on-line readers for money and for additional content to be added to the Files), at http://www.netfreedom.net/nuremberg/aborts.html (last visited on March 14, 2000).

[112] Judy Komaromi, Small Town Justice, at http://www.smalltownjustice.com/ (last visited on March 8, 2001).

[113] In his complaint, Officer Mason alleged that Judy Komaromi “[has] composed an unabashedly vicious attack against Officer Mason and his family by publication on an internet website.... She has cross-referenced this website with a variety of key words to draw public attention to her harassment of the Mason family, resulting in several thousand visits to the website by the public.” See, California Highway Patrol Letter, at http://www.smalltownjustice.com/chpletter.htm (last visited March 8, 2001).

[114] The Smoking Gun: U.S. Booze, at http://www.thesmokinggun.com/archive/usbooze1.shtml (last visited March 8, 2001).

[115] The Smoking Gun: Prenup, at http://www.thesmokinggun.com/archive/prenup1.shtml (last visited March 8, 2001).

[116] Madow, supra note 26, at 191-192.

[117] See, e.g., Edward Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 962-964 (1964) (arguing that the privacy tort is “not about appropriating something of monetary value,” but about “demeaning and humiliating” an individual through the commodification of his likeness).

[118] Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1859 (June 1987).

[119] Id. at 1905.

[120] Nimmer, 19 Law & Contemp. Probs. at 217.