Bodies as IP: Does the Right of Publicity Objectify Women?

This article poses a question to which I honestly don’t know the answer: is it good public policy to say that being physically attractive is all someone needs to have an enforceable right of publicity?  On one hand, defining the right of publicity in that way empowers attractive people (almost always young women) to stop others from exploiting suggestive or prurient images of them.  On the other hand, the legal reasoning used to achieve that result may be paving the way for more of the same young people to commercially exploit themselves in the same manner.  This question has troubled me for some time, and I’d love to get your comments on the issue.

“Profiting Directly From Their Sex Appeal”

In 2009, a 22-year-old college student calling herself Natalie Dylan sold her virginity to raise money for grad school.  The bidding, conducted online for services to be rendered in Nevada, where prostitution is legal, went as high as $3.8 million.  While her decision received a fair amount of criticism and moral approbation, she was also congratulated by the CEO of a Fortune 500 company for her “entrepreneurial gumption.”

Explaining her decision, Dylan wrote: “it became apparent to me that idealized virginity is just a tool to keep women in their place. But then I realized something else: if virginity is considered that valuable, what’s to stop me from benefiting from that?…  I took the ancient notion that a woman’s virginity is priceless and used it as a vehicle for capitalism.”

“I might even be an early adopter of a future trend,” Dylan predicted.   “These days, more and more women my age are profiting directly from their sex appeal.”  She was right.  The following year, the UK press profiled an 18-year-old Romanian girl who sold herself in exactly the same manner (but for far less money), citing Dylan as inspiration.  Search engines reveal hordes of similar examples.  Still, Dylan concluded that “society isn’t ready for public auctions like mine—yet.”

She’s right about that, too.  But are we moving in the direction of women commodifying themselves in order to “profit directly from their sex appeal,” as Dylan suggests?  There are reasons to believe we are–and that the right of publicity is providing the legal framework in which it can happen.

The Right of Publicity Puts a Dollar Figure on Us All

I’ve blogged often about the right of publicity–the right of an individual to control the commercial exploitation of his or her personal identity. In this context, a person’s “identity” is typically represented by their physical likeness, name, voice, or signature, but cases have extended the right to cover virtually any object, mannerisms, mode of dress, or other “indicia” of one’s persona.  The right of publicity originated in the common law of privacy rights, but it is now generally considered a species of intellectual property.  That’s because, as its name suggests, the “right of publicity” is not about keeping content private; it’s about who has the right to get paid for publicizing that content.

The “commercial” aspect of this right is intentional.  It’s what distinguishes the use of someone’s likeness in creative expression like a movie or song–which is generally free speech privileged by the First Amendment–from commercial speech designed to advertise and sell goods or services, which is more akin to a trademark, and hence within the realm of governmental regulation and property rights.

In order to prevail on a publicity rights claim, therefore, a plaintiff must generally prove that her identity has “commercial value”i.e., that there’s reason to believe that her identity would be worth something to an advertiser, or that a customer might be more likely to pay attention to a product because the plaintiff’s identity was associated with it.  For that reason, courts had long ruled that the right of publicity was only available to “celebrities,” and not the rest of us.

Today, however, the rise of digital (and especially social) media makes it entirely realistic to argue that we can all attain commercial value in some context.  Therefore, in 2011, a California court refused to dismiss a right of publicity lawsuit against Facebook over its “Sponsored Stories” advertisements, which incorporates users’ “Likes” into ads that their friends see.  The court agreed that plaintiffs might be able to show that they were “‘celebrities’ within their own Facebook social networks,” and that their identities therefore had commercial value in that context.  As a result, just a couple weeks ago, Facebook paid $10 million to settle that lawsuit.

Publicity Rights as Shields Against Prurient Publications

Several courts have used the right of publicity to stop others from using plaintiff’s image in a sexually suggestive manner. For example, Bret Michaels and Pamela Anderson won a lawsuit to block publication of this and other grounds. More recently, Kim Kardashian argued that a sex doll bearing a striking resemblance to her violated her right of publicity.

In 2004, Catherine Bosley, a local newscaster in Ohio sued when a video of her participating in a wet t-shirt contest found its way online and went viral.  She won, but the reasoning the court used to reach that result raises some questions.  For reasons I’ve explained elsewhere in more depth, the logical implication of the court’s holding is that, despite her pre-existing status as a “regional celebrity,” Bosley’s commercial value had nothing to do with her unique, personal “identity,” as right of publicity case law has traditionally required. Rather, it came solely from the prurient value associated with her taking her top off. Several cases involving “Girls Gone Wild”-type situations have reached similar results.  The implication of each ruling is that commercial value came from the plaintiff’s body, not her identity.

In my home jurisdiction of Michigan, these questions were raised in the case of Arnold v. Treadwell.  There, a young aspiring model in Detroit posed for a photo shoot with local photographers, then sued them after some of those pictures (several of which were racy to begin with) ended up in a racy magazine, allegedly without her permission. She lost in the state trial court.  But the Michigan Court of Appeals reversed, reasoning that the evidence could show “that there is value in associating an item of commerce with plaintiff’s identity.”  The evidence supporting that finding?  That “plaintiff has contracted to model clothing in a fashion show, to play an extra in a music video, and to work as an exotic dancer”–all activities that involve exploiting her body, not her identity.

Only days after this ruling, a local federal judge likewise refused to dismiss Arnold’s parallel “false endorsement”claims under the Lanham Act.  The court’s reasoning was slightly different than the state court’s.  It court only went so far as to note that Arnold had “a present intent to commercialize her identity.”  In other words, as long as Arnold had opened the door to commercially exploiting her own appearance, she would be allowed to make her case that her identity did, in fact, have commercial value. Nevertheless, there was still no discussion of the distinction between “likeness” and “identity.”

Taken together, therefore, these cases demonstrate that the right of publicity (and related claims) can be an effective basis for attractive people to prevent others from publishing prurient images of them without permission.  The means of achieving that result, however, is to think of those plaintiffs’ bodies in purely commercial terms, and to legally equate their physical appearance with their identity as people.

My Body, My Intellectual Property

I’m not necessarily suggesting that these cases were wrongly decided based on legal precedent, or even that their results are bad for society.  Indeed, judges have understandably latched onto publicity rights as an effective mechanism for putting an end to exploitative content.  It’s an easier solution than copyright law, since copyrights vest by default in the person taking the picture, rather than the person depicted in the picture.

But I do want to raise the question of whether using this doctrine in this way creates precedents that will ultimately make it easier for individuals–primarily, young women–to exploit themselves.

Admittedly, this is not an entirely new concept.  Sex sells.  That’s a basic fact of human nature.  Advertising a product by associating it with an attractive model is Marketing 101.   Thousands of people have pursued modeling as a career, and there is nothing inherently questionable about that.

But what rights should modeling get someone?  Arnold was no supermodel–people who, in today’s culture, are “celebrities” in every sense of the word.  Rather, she had appeared in one, very local modeling show, as an extra in a music video, and as an exotic dancer.  No one reading the magazine she sued over had any idea who she was; they only saw what she looked like.  But the mere fact that she (and the plaintiffs in each of the other cases discussed above) was attractive enough to appear in a magazine (or video) gave her legally enforceable rights to profit from the publication of her image.

With that principle established, the right of publicity increasingly forms the basis of a reliable business model for any reasonably attractive person looking to “profit directly from their sex appeal.”  And they don’t even have to go as far as Natalie Dylan did in selling her actual body; images will do just fine.  The right of publicity has been in the news a lot lately, thanks to pop stars like Kim Kardashian and Lindsey Lohan, actors like Sandra Bullock, Julia Roberts and George Clooney, and the estates of Tupac Shakur, Elvis, and Marilyn Monroe.  Especially in the face of high youth unemployment and a sagging economy, how long until more young people start putting two and two together, like Natalie Dylan or the protagonists of The Full Monty did?

Of course, whether and how much this happens depends on a lot more than intellectual property laws.  It’s a product of moral and ethical norms, societal attitudes, and much more.  But having the legal mechanism in place to guarantee a profit will make it easier.

You may also ask, “if judges shouldn’t use the right of publicity to control unwanted, exploitative content, what’s the alternative?”  Good question, and one that goes beyond the scope of this already-lengthy post.  Perhaps new privacy laws, or stepped-up enforcement of existing ones.  That would be a good topic of conversation in the comments section below.

So what do you think about all this?  Feel free to chime in.