You Are Not a Commodity: A More Efficient Approach to Commercial Privacy Rights
December 01, 2021 | 96 Wash. L. Rev. 1567
Benjamin T. Pardue
Abstract: United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing litigation where tortious conduct may improve the social good. Some scholars have already argued this point concerning trademark claims. This Comment is the first to apply this logic to appropriation of likeness claims.
Further, overprotecting a person’s recognizability as though it is a sacred property right contributes to advertisers’ appetite for commodifying consumer time. As an analogy, consider Ms. Moneybags, the owner of a shoe factory. Ms. Moneybags has no personal use for the 10,000 shoes generated by her factory every day; rather, she creates shoes to sell. She then uses sales revenue to purchase more equipment, hire more workers, and grow her business to make more money. By creating and commodifying shoes, Ms. Moneybags exploits natural resources and labor to increase her capital.
Through a similar analogy, consider Mr. Moviestar, a public personality who uses his recognizability to generate attention through media. While business models vary, he sells consumer attention to advertisers, thereby commodifying attention. Like Ms. Moneybags, Mr. Moviestar’s use for the attention from the masses is limited. In turn, as consumers pay more attention to Mr. Moviestar, his recognizability grows; he then uses his recognizability to garner more consumer attention, which he continues to sell to advertisers. Ultimately, Mr. Moviestar increases his recognizability—his personal brand’s value—by exploiting consumer time and attention.
Ample literature on law and economics suggests that overprotection of property rights leads to suboptimal outcomes. Likewise, if tort law overprotects public personalities’ exclusive right to publicize their name or likeness, then the incentive to build their personal brand value may be inefficiently high. But public renown does not come from thin air. A personal brand is built by commodifying consumers’ time and attention. Accordingly, overprotecting the exclusive right to publicize one’s name or likeness may feed advertisers’ appetite for consumer attention.
This Comment argues that tort damages in an appropriation of name or likeness action should be limited to the fair market value of the use. This would mitigate windfalls to plaintiffs, thereby easing the incentive to commodify consumer time and attention. Further, this Comment argues that, in rare instances where an excessive award might be merited, such actions are better suited for a different privacy tort.
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