Saving Face: Adopting a Right of Publicity to Protect North Carolinians in an Increasingly Digital World

BY William K. Smith

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Who steals my purse steals trash; ‘tis something, nothing;

‘Twas mine, ‘tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed.

—William Shakespeare, Othello act 3, sc. 3

Introduction

The right of publicity is the right to control the use of one’s identity.[1]  It has traditionally been viewed as a “celebrity law suit”—a legal mechanism used to protect the commercial interest of a celebrity’s image, name, or “likeness.”[2] However, the modern ability to record and to photograph anything and everyone, combined with the rise of social media and the increasing tendency to “upload,” “post,” “like,” “share,” or “+1” everything around us has created a world in which anyone can become a “celebrity.”[3]  In fact, as of November 11, 2013, if you have a Google Account, Google has reserved the right to use your name, photo, and any action you take on Google by displaying them in ads and in “other commercial contexts.”[4]  Facebook has a similar clause in its terms as well. [5]  Thus, it is likely you have already unknowingly endorsed a whole host of products in a “celebrityesque” manner. Although Google and Facebook are blatant about the appropriation of your likeness for commercial purposes, others likely will not be. [6]  In today’s digital and open world where almost everything on the Internet can be downloaded, copied, manipulated, and distributed by anyone at any time, it is becoming increasingly difficult for individuals to control how their likenesses are used.

In response to this growing difficulty, many states have enacted right of publicity statutes or broadened the applicability of their privacy laws.[7]  North Carolina has done neither. However, in recent years there has been growing momentum for North Carolina to adopt a statutory right of publicity. In fact, in 2009 the North Carolina General Assembly considered such a bill.[8]  As recently as June 2013, the Sports and Entertainment Law Section of the North Carolina Bar Association published an article by well-known right of publicity activist Jonathan Faber. [9]  In the article, Faber criticizes the proposed 2009 bill as being too weak and calls on North Carolina to enact an “undiluted” right of publicity statute.[10]  However, the proposed 2009 statute and the “undiluted” statute promoted by Faber both fail to appreciate the changing landscape of technology and the potential for anyone to be a celebrity. This Comment focuses on the need for North Carolina to update its statutory law in order to protect the significant interest of all its citizens in controlling the use of their likenesses. In doing so, this Comment argues that North Carolina should consider the varied interests and rights at stake in crafting its right to publicity jurisprudence and adopt a statutory legal scheme that will adequately balance the growing interest North Carolinians have in protecting their likenesses with the traditional interests of the First Amendment.

Analysis proceeds in four parts. Part I introduces the right of publicity and describes its evolution out of the right of privacy. Part II explains the moral and the economic justifications for a right of publicity, highlighting how the right conflicts with the interests of expression and speech found in the First Amendment and how different jurisdictions have attempted to balance those interests. Part III then looks to how these competing interests have played out on the national level and examines the problems and benefits with the current national trend. Part IV presents the normative thesis of this Comment and examines how North Carolina’s current privacy laws fail to adequately protect the privacy and pecuniary interests of its citizens. It then recommends a path forward, which includes adopting a statutory right of publicity in North Carolina that attempts to adopt the best parts of the national trend without strangling the First Amendment.

I. The Right of Publicity

A. The Genesis

As one commentator remarked, the right of publicity was “carved out of the general right of privacy,” “[l]ike Eve from Adam’s rib.”[11]  The right to privacy, in turn, was born out of an 1890 law review article by Samuel Warren and Louis Brandeis.[12] Troubled by new inventions capable of recording and photographing private acts and circulating them through the community,[13]  Warren and Brandeis borrowed the term “privacy” from an English case, Albert v. Strange,[14]  to coin what they described as the individual’s “right to be let alone.”[15] They reasoned that the right of privacy was a natural evolution of common law principles as applied to new developments.[16]  As such, they argued that the violation of privacy should be recognized at common law as an actionable injury, like the common law injuries of assault, nuisance, libel, and slander.[17]  Following the publication of the Warren and Brandeis article, courts split on the idea of a common law right to privacy. In fact, while some courts quickly accepted the idea,[18]  it was the New York courts’ rapid refusal to recognize a common law right of privacy[19]  that drove New York to pass the nation’s first privacy statute.[20]

However, it was not until fifty years after the first privacy statute was enacted that the right of publicity emerged. In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.,[21]  the Second Circuit explicitly recognized the right of publicity as a distinct right separate from the right to privacy.[22]  In Haelan, the trial court rejected the plaintiff’s argument that it had acquired the exclusive use of a baseball player’s photograph and held that the right of privacy was a nontransferable personal right.[23]  The Second Circuit disagreed,[24]  and in one stroke, the court carved the right of publicity out of the right of privacy. Writing for the court, Judge Jerome Frank stated, “We think that, in addition to and independent of that right of privacy . . . a man has a right in the publicity value of his photograph . . . .”[25]  Judge Frank then noted that “[t]his right might be called a ‘right of publicity.’ ”[26]

Immediately following its birth in Haelan, the right of publicity’s popularity ebbed and flowed.[27]  However, in 1977 the United States Supreme Court recognized the right of publicity as a valid state law claim,[28]  and by the 1980s, the existence of the right was widely accepted.[29]  Today, at least forty-one states have recognized the right of publicity by statute or through common law,[30]  and the right has been incorporated into the Restatement (Third) of Unfair Competition.[31]

B. Distinguishing the Right of Publicity from the Right to Privacy

Even though the right of publicity has been widely accepted as distinct from the right of privacy, the two are often still conflated.[32]  While it is true that the right of publicity and the right to privacy derive from a common ancestor,[33]  they are separate causes of action aimed at protecting separate interests.[34]

The right to privacy focuses on an individual’s right to be free from unwanted attention and protects an individual from outside parties publicizing his personal information.[35]  It is a personal right primarily concerned with a specific person’s feelings.[36]  Privacy violations are tortious in nature and, as such, remedies focus on compensating the victim for resulting mental, emotional, and reputational injuries.[37]  In contrast, the right of publicity is concerned with the unauthorized use of an individual’s identity.[38]  The remedies for right of publicity violations focus on recovering the economic value of a persona, as opposed to compensating for emotional or mental anguish.[39]

For instance, the right of publicity and the right of privacy would treat an individual who willingly publishes a photo on a public social media site such as Facebook or Google+ differently. The user will have a hard time recovering damages under a privacy action because proving that emotional or mental anguish resulted from the use of a picture that she intentionally published on a public site would be difficult, to say the least.[40]  In contrast, to recover under a right of publicity action, the burden of proving mental or emotional injury is removed, and all the plaintiff must prove is unauthorized use.[41]

This distinction between the “private” and “public” person is one of the main reasons the right of publicity developed in the first place.[42]  As Melville Nimmer highlighted in his article, the traditional law of privacy was intended to protect the private person from unwanted intrusion and was not designed to protect the public person who intentionally puts herself before the public.[43]  Conversely, the right of publicity evolved specifically to protect the public person by providing a means by which she could recover, not for emotional or mental anguish caused by an invasion of privacy, but for pecuniary damage caused by unauthorized use of her image.[44]

II. Balancing Competing Interests

As one commentator remarked, “[l]egal rights typically do not exist in a vacuum . . . . [T]he unintended consequences or externalities that result from any legal right create collisions with competing rights.”[45]  This is certainly true of the right of publicity. Since its inception, many commentators have argued that the right of publicity intrudes upon the freedoms of speech and expression protected by the First Amendment and that the right should be limited in its application, if not altogether abolished.[46]  However, others argue that the right of publicity protects a fundamental right “to the fruit of [one’s] labors.”[47]  This argument presumes that there is an innate right to own one’s identity and persona[48]  and that the right should be broadly applied. This Part discusses the most popular justifications for adopting a right of publicity and the competing concerns of the First Amendment. It then provides an overview of how different jurisdictions have balanced these interests.

A. Justifications for a Right of Publicity

Recognizing the need for a legal mechanism by which public personas could control the use of their identity, Nimmer provided the first justification for the right of publicity in his 1954 article.[49]  Relying on the axiom of Anglo-American jurisprudence “that every person is entitled to the fruit of his labors,”[50]  Nimmer argued that “unless there are important countervailing public policy considerations,” individuals should be entitled to the fruit of their public personas, which are often created only through “expend[ing] considerable time, effort, skill, and even money.”[51]  In the ensuing decades, justifications for the right of publicity have become more wide-ranging and include both economic and moral justifications.

Commentators have articulated various economic justifications for a right of publicity.[52]  Most rationales revolve around the “utilitarian” or “tragedy of the commons” theories. The utilitarian theory argues that when individuals are granted an exclusive right to the product of their labor, they become more productive and more inventive than they otherwise would be.[53]  The theory posits that, because an individual cannot possibly capture the entire economic benefit created from his increased productivity and innovation, this uncaptured surplus spills over into society and ultimately benefits the public.[54]  As such, supporters of a broad right of publicity argue that, just as other property rights incentivize more productive labor,[55]  the right of publicity incentivizes development of a valuable persona.[56]  This incentive in turn drives individuals to generate performances, works, skills, or other products they otherwise would not have created, which not only enhance their own persona, but also benefit society at large either aesthetically, economically, or both.[57]

The second economic justification offered by proponents of the right of publicity focuses on avoiding the devaluation of a person’s identity through overuse.[58]  This theory suggests that in the same way that overgrazing of cattle on the proverbial tragic commons would render the land valueless to the herdsmen,[59]  not recognizing a right of publicity would render an individual persona economically valueless through overuse.[60]  Essentially, the production of too many low value or low quality products will crowd out the production of the valuable ones.[61]  In contrast, just as restricting the use of the commons optimized its value for herdsmen,[62]  limiting the use of a person’s likeness optimizes the economic value of her identity.[63]

Advocates of the right of publicity have also advanced two main moral justifications for the right of publicity. The first of these follows the Lockean moral theory that “every person is entitled to the fruit of his labors.”[64]  The argument is largely self-explanatory: if an individual puts in the effort and the work to cultivate a commercially valuable identity, then he should be entitled to the economic benefit derived from that identity.[65]

The second theory is grounded in the idea that a person should own his identity, not because he has earned it, but because “[i]dentity [is] something intrinsic to the individual.”[66]  As articulated by Alice Haemmerli, proponents of this view offer a moral justification based on the philosophy of Immanuel Kant rather than John Locke.[67]  Advocating “a property right based on human freedom,”[68]  Haemmerli argues that identity should remain “subject to individual control as an autonomy-based property right, no matter what or who has affected its level of fame.”[69]  Essentially, the argument is an academic extension of the innate feeling that, regardless of circumstance, every person should have the right to control his own identity and persona.[70]  Under this view, it is “damage to the human spirit,”[71]  not to economics, that is at issue. This is perhaps best summarized in a statement made over a hundred years ago by Justice Andrew J. Cobb:

The knowledge that one’s features and form are being used . . . and displayed in . . . advertisements . . . brings not only the person of an extremely sensitive nature, but even the individual of ordinary sensibility, to a realization that his liberty has been taken away from him; and, as long as the advertiser uses him for these purposes, he cannot be otherwise than conscious of the fact that he is for the time being under the control of another, 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; and . . . no one can be more conscious of his enthrallment than he is.[72]

The idea that one’s identity belongs to oneself is a strong one, and the thought of someone else having free reign to use one’s likeness without permission makes even the “individual of ordinary sensibility” uncomfortable.[73]  Yet, on the other hand, equally uncomfortable is the thought of curtailing or censoring the fundamental right of free speech.

B. First Amendment Concerns

Commentators have articulated many reasons why the right of publicity should be limited in its application or even abolished.[74]  The two most prominent arguments are preemption by federal copyright law and infringement of the First Amendment. While preemption arguments have enjoyed some limited success, they have largely been ineffective in the courts.[75]  Rather, it is the First Amendment arguments that have carried the most weight.[76]

The First Amendment protects freedom of expression and speech[77]  and, as many legal minds have noted, is essential to a democratic society.[78]  Critics argue that, by banning the use of another’s image or likeness, the right of publicity infringes upon the freedom of speech protected by the First Amendment and is imposed at the expense of expression and creativity.[79]  Judge Alex Kozinski of the Ninth Circuit explains this viewpoint in White v. Samsung Electronics America.[80]  In White, Vanna White, the Wheel of Fortune hostess, sued Samsung over a VCR advertisement.[81]  Judge Kozinski dissented from the court’s opinion that White’s right of publicity had been violated by arguing that the right of publicity stifles creativity and is “imposed at the expense of future creators and of the public at large . . . .”[82]  He then went on to explain, “Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative force it’s supposed to nurture.”[83]

Three years after Kozinski’s dissent in White, the Tenth Circuit applied Kozinski’s reasoning in Cardtoons, L.C. v. Major League Baseball Player’s Association.[84]  In Cardtoons, the court was asked to determine whether cartoon-like trading cards, in parody of then-popular baseball cards, violated the baseball players’ right to publicity.[85]  The court reasoned that because the use of the baseball players’ likenesses was for “social commentary” purposes and not a “purely commercial” purpose as in White,[86]  the cards were worthy of First Amendment protection as “an important form of entertainment and social commentary.”[87]  The court explained further:

One of the primary goals of intellectual property law is to maximize creative expression. The law attempts to achieve this goal by striking a proper balance between the right of a creator to the fruits of his labor and the right of future creators to free expression. Underprotection of intellectual property reduces the incentive to create; overprotection creates a monopoly over the raw material of creative expression.[88]

Since then, courts have gone on to hold that the right of publicity does not apply if the use of a person’s identity is sufficiently newsworthy, transformative, or expressive.[89]  However, these rulings have done little to ease the tension between the First Amendment and the right of publicity,[90]  and courts and states have continued to struggle with how to balance these competing interests.[91]

C. The Balancing Act

In response to changing technology and a desire to extend protection to public as well as private personas, various states began adopting right of publicity statutes or recognizing the right through their common law.[92]  The breadth and depth of protection granted by each state and how it balances the competing interests varies substantially.[93]  By way of comparison, this subpart provides an overview of how New York, California, Tennessee, and Georgia—the four states with the longest history of right of publicity claims[94] —have dealt with right of publicity issues and how courts have attempted to balance the competing interests of the right of publicity and the protections of the First Amendment.

  1. New York

New York courts do not recognize a common law right to publicity.[95]  However, New York’s statutory right of publicity developed out of a common law ruling in the 1902 case, Roberson v. Rochester Folding Box Co.[96]  In that case, the defendant used a private picture of the plaintiff to produce over 25,000 posters advertising the defendant’s baking flour.[97]  The court held that in the absence of legislation, the plaintiff did not have a valid cause of action.[98]  This decision caused immense public outcry, and within a year, the New York Legislature passed sections 50 and 51 of the Civil Rights Law entitled “Right of Privacy.”[99]  While the New York courts have steadfastly insisted that there is no right of publicity statute in New York,[100]  the protections enumerated in the state’s “Right of Privacy” statute are indistinguishable from those protected under a common law right of publicity.[101]

In order to establish a right of privacy claim in New York, a plaintiff must demonstrate that the defendant (1) used the plaintiff’s name, portrait, picture, or voice; (2) for the purposes of advertising or trade; and (3) did so without the plaintiff’s written consent.[102]  The plaintiff can recover damages for any injuries, and if the defendant knowingly used the plaintiff’s name, portrait, picture, or voice in an unauthorized manner, the jury can also award “exemplary damages.”[103]

In an effort to accommodate the First Amendment interest, the New York courts have recognized some limitations on their right of publicity law, including a newsworthiness and public interest exception,[104]  an incidental use exception,[105]  the application of the statute to commercial uses only,[106]  and a requirement that the reference to the plaintiff be clear and recognizable.[107]

  1. California

California has both a common law and a statutory right to publicity. The common law right of publicity was first addressed in California in Lugosi v. Universal Pictures.[108]  In that case, the widow and son of movie actor Bela Lugosi sued Universal Pictures to prevent Universal from selling and marketing Count Dracula products, which had been made popular by Lugosi’s portrayals of the character.[109]  The court found that a right of publicity existed, but that the right was only descendible and exercisable after Lugosi’s death if the right had been exercised at some point during his life.[110]  In this case, it had not, and therefore the claim was denied.[111]

In response, California’s legislature created a statutory right to publicity that does not require exercising the right during life and extends seventy years after the death of the person whose likeness is in question.[112]  The statutory right provides protection against “knowing” uses of a person’s name, voice, signature, photograph, or likeness for various commercial purposes.[113]  However, the simple use of a person’s likeness in connection with a commercial product does not violate the statute.[114]  Rather, the use has to be specifically for “advertising” purposes as defined by the statute.[115]  Thus, the statute imposes a three-step test that requires the following: (1) a “knowing” use of the plaintiff’s identity; (2) use for “advertising” purposes; and (3) a direct connection between the use and the commercial purpose.[116]

Conversely, under California’s common law right of publicity a plaintiff must prove the following: (1) the defendant’s appropriation of plaintiff’s “identity” for defendant’s advantage; (2) lack of plaintiff’s consent; and (3) resulting injury.[117]  Courts have interpreted “identity” broadly and the term encompasses more than it does under the statutory right of publicity.{{118} [[118]]603 P.2d 425 (Cal. 1979).[[118]] For example, a picture of a distinctly decorated racecar where the driver is not visible would not violate the statute, but it does violate the common law right.[119]  Additionally, the Ninth Circuit has suggested that under certain circumstances the common law right is not limited exclusively to commercial uses of the plaintiff’s identity.[120]

Plaintiffs can bring actions under both the statutory right and the common law right,[121]  and most do.[122]  However, both the statutory and the common law rights are subject to various First Amendment exceptions: under the common law there is an exception for “expressive works, whether factual or fictional”;[123]  and under the statutory law there are express exceptions for any use in a “play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value,” or an advertisement for any of these works.[124]

  1. Tennessee

Like California, Tennessee recognizes both a common law right to publicity and a similar statutory right.[125]  Like California, Tennessee also made the right both freely transferable and descendible.[126]  However, Tennessee differs from California in that it limits coverage to a “name, photograph or likeness.”[127]  Also, it does not require registration by the heirs of the right upon the death of the individual.[128]  Rather, it provides that the heirs have the sole right to use the publicity rights during the first ten years following the death of the individual.[129]  Then, following the ten-year period, there is a grace period of two years in which the estate can still claim the right by using it. If the heirs claim the right in this period, then the right permanently belongs to the estate; if not claimed, then it enters the public domain.[130]  Tennessee provides First Amendment exceptions to its right of publicity for the use of a person’s “name, photograph or likeness . . . in connection with any news, public affairs, or sports broadcast or account.”[131]

  1. Georgia

Georgia has no statutory right of publicity; however, it has a well-developed common law right.[132]  In Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc.,[133]  the Supreme Court of Georgia answered three certified questions from the Eleventh Circuit regarding the right of publicity in Georgia: (1) does the right of publicity exist as a right independent of the right of privacy; (2) does the right survive the death of the owner; and (3) does the right have to be exploited during life to be descendible?[134]  In response, the Georgia court held (1) that the right of publicity was discrete from the right of privacy; (2) that it was property and was thus inheritable and devisable; and (3) that the owner of the right did not have to use it during life for it to survive his death.[135]  Georgia’s right of publicity extends only to a person’s name and likeness and only protects against unauthorized uses of a person’s identity for financial gain.[136]  It currently only provides a First Amendment exception for “newsworthiness.”[137]

 

***

 

While each state arrived at separate conclusions about the basic questions of whether or not the right of publicity should be a property right, extend beyond death, or be a statutory or common law right,[138]  these states uniformly recognized the need to balance the right with the interests of the First Amendment by identifying specific exemptions.[139]  However, the range of exclusions, numbering from one in Georgia to over ten in California,[140]  indicate the disparity of thought in deciding how much weight should be given to each right. This balancing of interests is something that courts have struggled with as well when interpreting right of publicity laws against the backdrop of First Amendment rights.

D. How Courts Have Interpreted Right of Publicity Laws While Balancing First Amendment Concerns

The first time the Supreme Court of the United States examined the right of publicity was in Zacchini v. Scripps-Howard Broadcasting Co.[141]  In Zacchini, the plaintiff’s complete “human cannonball” performance was recorded and subsequently broadcast by a television station in Ohio.[142]  Zacchini brought suit against the television company alleging a violation of his right of publicity under Ohio law.[143]  The Ohio courts ruled in favor of the broadcasting company and ruled that Zacchini’s claim was barred by the First Amendment.[144]  Zacchini appealed and the case went before the Supreme Court.[145]  The Supreme Court noted conflicting interests. On the one hand, the Court recognized the interest of “protecting the proprietary interest of the individual” and the individual’s ability to “reap the reward of his endeavors,”[146]  and on the other hand, the Court identified the First Amendment guarantees of freedom of speech and the press.[147]  Ultimately, the Court ruled in favor of Zacchini, finding that “[w]herever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without consent.”[148]  Following Zacchini, in an attempt to define the “line in particular situations,”[149]  lower courts began applying different balancing tests to resolve conflicts between the right of publicity and First Amendment protections. The three most common tests are the Predominant Use Test,[150]  the Rogers Test,[151]  and the Transformative Use Test.[152]

  1. The Predominant Use Test

The Predominant Use Test focuses on the ultimate use of the identity and was first applied in Doe v. TCI Cablevision.[153]  TCI considered the right of publicity claim of Anthony “Tony” Twist, a hockey player, against the producers of the Spawn comic book series due to the introduction of a villain into the series by the name of Anthony “Tony Twist” Twistelli.[154]  In balancing Twist’s property interests in his name and identity against the First Amendment interests of the comic book creators, the court rejected the Rogers and Transformative Use tests and instead employed what it labeled a “sort of predominant use test”:

If a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some “expressive” content in that it might qualify as “speech” in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.[155]

The court then ruled for Twist, holding that “the metaphorical reference to Twist, though a literary device, has very little literary value compared to its commercial value.”[156]  Essentially, if the use is primarily for commercial purposes, then the First Amendment will not protect the use. However, if the use is primarily to express an idea, thought, or speech rather than to create economic profit, then the First Amendment will protect the use.

  1. The Rogers Test

Many commentators have suggested that right of publicity claims are similar to trademark claims because both types of claims require balancing property interests against the interests of free expression.[157]  As such, courts have at times applied what is called the Rogers Test. The Rogers Test evolved out of Rogers v. Grimaldi,[158]  a case that involved both a right of publicity claim and a claim under the trademark-specific Lanham Act.[159]

In Rogers, actress Ginger Rogers brought suit against the maker of a film titled “Ginger and Fred.”[160]  Rogers asserted a right of publicity claim, citing the unauthorized use of her name in the title.[161]  She also asserted a claim under the Lanham Act alleging that the movie title would confuse consumers.[162]  The court held that, because “the title ‘Ginger and Fred’ is clearly related to the content of the movie and is not a disguised advertisement for the sale of goods and services or a collateral commercial product,”[163]  the right of publicity does “not bar the use of a celebrity’s name in a movie title unless the title was ‘wholly unrelated’ to the movie or was ‘simply a disguised commercial advertisement for the sale of goods or services.’ ”[164]  The test has since expanded beyond movie titles,[165]  but the focus of the test remains on whether the use of the identity in question is “wholly unrelated” to the underlying work.

  1. The Transformative Use Test

In Comedy III Productions, Inc. v. Gary Saderup, Inc.,[166]  the California Supreme Court considered whether an artist’s charcoal rendering of the Three Stooges, sold on t-shirts and as prints, violated the Three Stooges’ right of publicity.[167]  The court ruled in favor of the Three Stooges.[168]  Importing the first factor of the Fair Use Test employed in copyright law,[169]  the court defined the Transformative Use Test as follows:

[T]he central purpose of the inquiry . . . “is to see . . . whether the new work merely ‘supersede[s] the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’ ”[170]

Essentially, the focus of the Transformative Use Test is on the expressive nature of the use. It asks whether the use is creating something new, thereby “transforming” the original image into a new expression, as opposed to just copying or reproducing the original.[171]

III. The National Trend

As evidenced above, different states and courts have adopted various means for dealing with the competing interests of the right of publicity and the First Amendment.[172]  However, the national trend is moving towards adopting a statutory right of publicity that defines the right as a property right,[173]  is limited to commercial activity,[174]  relies on statutory exemptions,[175]  and uses the Transformative Use Test[176]  to preserve First Amendment protections.[177]  This Part highlights some of the benefits of this trend, such as the transferability and descendibility that comes with defining the right as property, and also some of the problems, such as limiting protection only to commercial activity.

A. The Benefits

Two benefits of defining the right as a property right, rather than a privacy right, are that the right is both transferable and descendible.[178]  The principal argument in favor of transferability is grounded in the incentive-based theory.[179]  The argument runs that “transferability promotes economic creation incentives by allowing those who hold the right to exploit it to their advantage.”[180]  Furthermore, transferability in other intellectual property interests such as copyright, trademark, and patents has helped promote efficient economic allocation and use.[181] Thus, allowing individuals to freely license or assign their images or “identities” enables the individual to maximize the economic benefits—benefits that will ultimately spill over into society at large.[182]

Similarly, descendibility would also encourage individuals to invest in themselves in ways that would serve the public interest.[183]  A descendible publicity right would allow an individual to assure that the right vests in a “suitable beneficiary.”[184]  Such a beneficiary would be more likely to ensure the image of the decedent was used in a manner the decedent would have wanted and would prevent it from being exploited purely for commercial or political gain.[185]  Finally, it does not seem rational or equitable that upon an individual’s death, advertisers, political pundits, or others should be able to use the image of the decedent to further their own ends simply because that individual is no longer alive to assert a privacy right. A mother, father, or child should be able to prevent the objectionable or offensive use of the image or likeness of a deceased family member.[186]

Another benefit to the national trend is the use of the “transformative test” in determining the applicability of First Amendment protections. While criticized by some for being vague and uncertain,[187]  the Transformative Use Test strikes the best balance between providing a flexible yet uniformly applicable framework for balancing the interests of the First Amendment against those of the right of publicity. Unlike the Predominant Use Test, the Transformative Use Test is primarily concerned with the expressive nature of the product or creation rather than whether the use was commercial.[188]  Thus, by focusing on the expressive element rather than the predominant use, the Transformative Use Test avoids the conclusion implicit in the Predominant Use Test that at least some expressive speech has no First Amendment value.[189]

Likewise, the Transformative Use Test is superior to the Rogers Test because, unlike the Rogers Test, the Transformative Use Test maintains its focus on the principal issue—whether the use is an expression protected by the First Amendment. By focusing on whether the use is “wholly unrelated” to the underlying work,[190]  the Rogers Test shifts the analysis away from the expressive nature of the use and instead focuses on whether the use is related to the protected material.[191]  This shift blurs the primary First Amendment concern of whether the work is expressive speech. In contrast, the core inquiry of the Transformative Use Test is precisely whether the “new work merely ‘suspercede[s] the objects’ of the original creation, or instead adds . . . new expression, meaning, or message.”[192]  Thus, the analysis under the Transformative Use Test remains on whether the speech is expressive and therefore deserving of constitutional protection, or whether it is simply copying someone else’s work.

B. The Problems

Although the national trend of defining the right of publicity as a property interest has its benefits,[193] this designation also carries significant problems. Property ownership creates certain rights in the owner, one of which is the right to exclude others from using the property and to invoke the government’s authority to uphold such exclusions.[194]  Thus, a property owner may exclude others from using his property as a means to engage in speech.[195]  This is true even when excluding use may prevent the most effective means of expressing one’s message. For example, while “[a]n espousal of socialism may carry different implications when displayed on the grounds of a stately mansion than when pasted on a factory wall,”[196]  the Supreme Court has held that speakers only have a right to adequate means of communication, not the most effective means.[197]  Similarly, while a postcard of John Wayne wearing lipstick may be a powerful message, a property-based right of publicity would extinguish that message if the owner of the right chose to prohibit that use.[198]  Such a line of reasoning would be equally applicable to the famous Andy Warhol paintings,[199]  political cartoons, and any other medium that used a person’s likeness for purposes of speech or expression. Ultimately, a property-based right of publicity would completely swallow any expression, parody, or social commentary that used another’s image or likeness.

Another problem with the national trend is limiting the right to only commercial uses. Such a limitation may have been practical in the past, as the cost of obtaining and reproducing an individual’s likeness for noncommercial use would have been prohibitive. However, with modern technological advances, capturing and widely disseminating someone’s likeness can be accomplished from a smartphone or similar device with no additional cost beyond acquiring the device and a data connection. This ease of obtaining and disseminating an individual’s likeness has led to unauthorized uses for an increasing array of purposes outside the scope of commercial uses, such as extracting revenge[200]  or cyberbullying.[201]  Such uses are as equally unauthorized as commercial ones, often have no describable expressive element, and often are not adequately covered under applicable state privacy law.[202]

Ultimately, the national trend is steadily moving towards a descendible and transferable property-based right that requires commercial use of one’s image before triggering protection. However, by basing the right of publicity in property law, this movement threatens to swallow any First Amendment claims, and by limiting protection only to commercial uses, it leaves citizens vulnerable to uses of their likeness that strike at a person’s dignity rather than their pocketbook.

IV. North Carolina Law, Privacy, and Publicity

A. North Carolina Privacy Law

In contrast to the national trend, North Carolina currently does not explicitly recognize a right to publicity; however, it does recognize a limited misappropriation action under its privacy common law.[203]  Nevertheless, the breadth and depth of the protection is currently uncertain, as the Supreme Court of North Carolina has only addressed the issue of misappropriation once, in 1938.

The 1938 case, Flake v. Greensboro News Co.,[204]  involved the unauthorized publication of a photo of Nancy Flake, a widely known orchestra singer, in an advertisement for the “Folies de Paree,” a group that Flake described as “a theatrical troupe organized in the city of Chicago and composed of the cheapest class of chorus girls.”[205]  The advertisement was jointly sponsored by the North Carolina Theaters and Melts Bakery, and featured a photo of Flake in a bathing suit accompanied by the words “Keep that Sylph-Like Figure[206]  by eating more of Melts Rye and Whole Wheat Bread, says Mlle. Sally Payne, exotic red haired Venus.”[207]  The newspaper had mistakenly used the photo of Flake instead of a photo of Sally Payne, who was a member of the Folies.[208]  Flake brought suit alleging that the publication of the photo in the advertisement was libelous and violated her right of privacy.[209]  The Supreme Court of North Carolina dismissed her libel claim,[210] but held that she had a valid cause of action for the unauthorized publication of her image.[211]

Later, in Barr v. Southern Bell Telephone and Telegraph Co.,[212]  the North Carolina Court of Appeals extended application of the privacy action of misappropriation to cases where consent was granted to use a person’s name and image, but the use exceeded the scope of consent.[213]  In Barr, an employee gave consent for his name and photograph to be used in a Yellow Pages advertisement for his employer’s rug cleaning business.[214]  However, the telephone company then published the ad using the employee’s name but substituting the employee’s picture with that of a “much older” man.[215]  The court of appeals found that such evidence “would justify” a finding that the company had violated Barr’s rights and remanded the case to the trial court.[216]

These two cases, Flake and Barr, encompass the entirety of North Carolina’s current right of publicity and misappropriation jurisprudence. Under current North Carolina law, to establish a case for the unauthorized use or misappropriation of an individual’s image, the plaintiff must establish that the defendant used the plaintiff’s likeness without consent and that the use was for an advertisement.[217]  In today’s hyper-connected world where anyone can become a celebrity overnight,[218]  such limited and basic protection is simply not enough. Not only does it fail to protect plaintiffs in cases involving purely noncommercial activity such as cyberbullying or revenge, but it also fails to provide protection for any commercial use outside of advertising. Thus, someone could lift an image of a local fallen military hero off the Internet, place it on a t-shirt or coffee mug, and then, as long as they did not advertise with it, they could go about selling the merchandise, and the hero’s family would be without recourse to stop it.

2. Problems with North Carolina’s Current Privacy Law and Why a Publicity Right Would Better Serve its Citizens

In today’s connected world of social media, there are many drawbacks to relying on privacy common law to address the issues surrounding the unauthorized use of one’s identity. For instance, people are less private than in the past, routinely publishing photos, thoughts, and images of themselves on the Internet.[219]  Such actions make it difficult to claim that their privacy has been violated by the use of such an image. On the other hand, posting a photo of oneself on a blog or social media site should not give license to whatever third party comes along to appropriate it for personal use.[220]

Another shortcoming of pursuing an action under a privacy tort theory is that the plaintiff must generally demonstrate that the defendant’s unauthorized use of the plaintiff’s likeness caused “some damage to plaintiff’s peace of mind and dignity, with resulting injury measured by mental or physical distress and related damage.”[221]  As mentioned above, this would be difficult for the person who made her image publicly available in the first place. However, even for the more private person, the prospect of having to publicly prove damage to her dignity and “mental distress” would likely deter her from seeking redress in court.[222]

The advent of modern technology creates yet another problem. In today’s world it is rather simple and inexpensive to create a “perpetual” identity—one that exists beyond death.[223]  Additionally, recent advances in digital and holographic technology have made it possible to recreate deceased personalities and use them for marketing, entertainment, or other purposes.[224]  Under existing privacy law, the descendants of such personalities would not have standing to pursue a claim in court against the use of the decedent’s image because privacy rights are personal and expire upon death.[225]  Thus, an individual surfing the web who receives a targeted toilet paper ad featuring a deceased relative would have no standing to prevent that company’s use of the ad.

Finally, North Carolina only recognizes the privacy torts of appropriation and intrusion, explicitly rejecting publication of private facts and false light.[226]  Thus, if someone makes a private photo or video with the individual’s consent but then publishes it on the Internet for a noncommercial use, the victim would have no recourse to have it removed.[227]  There would be no defamation claim as the image would be truthful.[228]  The privacy tort of appropriation would fail because it requires commercial use,[229]  and an intrusion claim would fail because the image was taken with consent.[230] This shortcoming leaves North Carolinians exposed to exploitation, humiliation, and mental anguish when their unauthorized private images appear on the Internet.

Adopting a statutory right of publicity in North Carolina would largely solve the problems listed above. For example, unlike a privacy action, a right of publicity claim does not require the showing of mental or emotional damage. Thus, a victim of a revenge posting would be free to pursue legal action under the right of publicity without having to endure the humiliating and often demeaning process of proving mental or emotional damage in open court. Additionally, by granting a right of publicity that is transferable and descendible, children would have standing to prevent the exploitation of their deceased parents’ identities and images. This would help eliminate the undesirable prospect of being barraged with targeted ads featuring deceased relatives hawking various products. Finally, granting a statutory right that protects against any unauthorized use of someone’s identity, and not just commercial ones, would fill the gap North Carolina’s current privacy law creates regarding online bullying, harassment, and the unauthorized dissemination of privately created photos and images.

C. North Carolina’s Failed 2009 Right to Publicity Bill

Adopting a statutory right of publicity in North Carolina is not a new idea. In 2009, in response to concerns of the NASCAR community and family of military personnel,[231]  the North Carolina General Assembly considered a statutory right of publicity.[232]  Under the proposed statute, any person would have a statutory property interest in his “personality,” defined to include any attribute that serves to identify a person to “an ordinary reasonable viewer or listener, including the [person’s] name, voice, signature, photograph, image, portrait, likeness, or distinctive appearance.”[233]  This right would have been violated when anyone “knowingly used another individual’s personality for commercial purposes without obtaining prior consent.”[234] The right would have been freely transferable and descendible (descendibility was limited to seventy years) and would have provided for use in the following exceptions:

A play, book, magazine, newspaper, musical composition, radio or television program, single and original work of art, work of political or newsworthy value, audiovisual work other than a video game, or an advertisement or commercial announcement for any of these works, if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work. Any news, public affairs, or sports broadcast or account.[235]

It also included a provision stating that any person who violated the statute would be liable for the greater of either one thousand dollars or any provable profit resulting from the unauthorized use,[236]  and included provisions for attorney’s fees and punitive damages.[237]

The bill did not pass,[238]  and while it contained many redeeming qualities, there were various problems as well.[239]  Borrowing heavily from California’s statutory law and following the national trend, the bill codified the right of publicity as a property interest.[240]  A property designation provides the positive traits of transferability and descendibility, but is also problematic because it largely dismisses First Amendment concerns.[241]  Similarly, following the national trend, the bill only applied to commercial uses,[242]  which is problematic because such a provision leaves citizens vulnerable to harmful noncommercial uses like revenge and bullying. The bill also included a long list of exclusions that would have diluted the effectiveness of establishing the right in the first place[243]  and required registration by anyone claiming ownership of a right of a deceased individual.[244]  This is problematic not only because it would cost North Carolina a substantial amount of money,[245]  but also because it requires affirmative action before extending coverage. Moreover, it is unlikely that a person would think to register until an unauthorized use occurred, but by then, it would be too late, as such use would be exempted.[246]

D. Recommendations for North Carolina

Instead of adopting a statute like the one proposed in 2009 or an “undiluted” statute as recently championed by Faber, North Carolina would be better served by adopting a statute that adequately balances the significant interest that North Carolinians have in protecting their image with the traditional interests of the First Amendment. In order to achieve this goal, North Carolina should follow New York’s lead and adopt a statute that is limited in scope and based in privacy, not property.[247]  Unlike New York, however, North Carolina should incorporate a provision for transferability and descendibility and extend protection to both commercial and noncommercial uses.

  1. Privacy over Property

Although the national trend favors treating the right of publicity as a property right rather than a privacy right,[248] North Carolina would be better served by basing its right to publicity in privacy because any recognition of a property right would immediately attach a “bundle of rights.”[249] [249]]At least one commentator thought it was a good thing the bill did not pass, stating that the bill actually weakened the right of publicity rather than providing meaningful protection. See Faber, supra note 10, at 4, 6.[[249]] This attachment of property rights would largely squash any First Amendment rights because, as discussed earlier, property rights include the right to exclude others from use.[250]  Thus, there would be no balancing against First Amendment interests and no weighing of whether a particular use contributed to the public sphere or was meaningful “social commentary.”[251]  Rather, the property right of publicity would trump free speech and expression every time.[252]  Such a model would not only severely handicap free speech and expression, but it would also be cumbersome. The legislature would be tasked with attempting to conceive of every exception worthy of protection in its original drafting, and when technology advances or when other circumstances arise, courts would be faced with either only allowing those specific exceptions or creating new ones.[253]

In contrast, basing a right of publicity in privacy would avoid the problem of the attachment of the proverbial “bundle of rights” and allow for the flexibility needed in addressing emerging technologies and changing circumstances. Additionally, where property rights have traditionally trumped First Amendment concerns, privacy rights, since their inception, have been balanced against First Amendment interests.[254]  Furthermore, the right of publicity was conceived out of privacy,[255] [[25]]See N.C. Gen. Assemb., Legis. Fiscal Note, H.B. 327, Sess. 2009 (estimating that it would cost the state $45,050 to set up a registration system that would only bring in about $15 a year in registration fees).[[255]] and thus, it makes sense that a right of publicity statute should be based in privacy—not property—rights.

  1. Descendibility and Transferability

While some states, like New York, still refuse to recognize a post-mortem right of publicity,[256]  more and more states are extending protection after death.[257]  The need for a descendible and transferable right of publicity only increases as technology continues to provide ways to re-create the past in stunningly lifelike renditions.[258]  Here, North Carolina would do well to keep with the national trend,[259]  and include a provision in its right of publicity statute to allow for descendibility and transferability. Such a provision would allow the right to be freely assignable during life and descendible upon death. Providing transferability during life allows those interested in the commercialization of their images to do so freely. Descendibility upon death would serve two purposes. First, if the decedent’s likeness did have commercial value, then it would ensure that the decedent’s descendants or assignees received its benefit. Second, descendibility would ensure that those closest to the decedent had the legal means to protect the decedent’s images.[260]

However, here again, the pecuniary and privacy interests protected by a descendible and transferable right of publicity should be balanced with the interests of free speech and expression to preserve a rich public domain upon which future artists and creators can draw.[261]  Thus, like most other states that provide post-mortem rights, North Carolina should limit the protection to a specific length of time, after which the right would expire and become part of the public domain. Here, states vary dramatically, with Tennessee providing a minimum of ten years of protection[262]  and Indiana providing an entire century of exclusive use.[263]  Providing protection for only ten years is too short of a time. The Internet retains images for almost an indefinite period of time and limiting protection to only a decade leaves many of those closest to the deceased without recourse before even a generation has passed. Furthermore, the pecuniary interest in a right of publicity generally increases over time and a limit of ten years would cut short the economic value of those interests.[264]  However, Indiana’s approach of a hundred years of protection is too long. Such a long term of protection would stifle creativity and weaken the public domain.[265] Rather, providing protection for fifty years following the death of a person seems more in line with the aims of the right of publicity. Such an approach would safeguard both the commercial and privacy interests of the decedent’s immediate family for a reasonable amount of time,[266]  but not unduly starve the public domain.[267]

  1. Commercial vs. Noncommercial Use

No state has currently enacted a statute that extends right of publicity protection to noncommercial uses.[268]  This is likely due to the fact that, historically, the right of publicity has been viewed as a celebrity right, useful only to those who are famous enough to have their image published in multiple places.[269]  Furthermore, until recently, many commentators thought that the right of privacy was sufficient to protect non-famous citizens.[270]  Yet, privacy actions fail to adequately protect the non-famous citizen for a variety of reasons.[271]  Chief among those reasons is that people are becoming less and less private in the traditional sense.[272]  It is not difficult to imagine a scenario in which a Facebook user (or other social media site user) uploads a photo of themselves or their friends only to have that image downloaded or copied by a third party and used to harass, embarrass, or humiliate the individual pictured.[273]  Under North Carolina’s current privacy law, the victim would have little or no recourse.[274]  Just because the way people share and communicate with each other is evolving does not mean people are any less deserving of control over how their image is used.[275]

Additionally, as technology advances, new types of harms emerge. Recent years have seen a surge in cyberbullying and revenge-oriented online publication.[276]  Extending protection to noncommercial uses would provide victims of these emerging harms with a straightforward way to seek recovery. Moreover, extending protection to cover such ill-willed uses would deter would-be perpetrators in the first instance, thereby reducing the overall rate of occurrence and preventing the harm before it occurs. No one should have to suffer the indignity of having her likeness misused by malignant perpetrators—regardless of whether the likeness has commercial value or not.

  1. Putting it all Together

Creating a statute as described above need not be complicated.[277]  It should simply state that an action may be brought for knowingly using an individual’s name, portrait, photograph, or voice without authorization;[278]  include a definition of photograph that requires the plaintiff to be readily identifiable and includes videography;[279]  add a provision that allows the action to be brought for a period of fifty years following the death of an individual by the individual’s designated beneficiary or takers at law having at least a 50% interest in the deceased’s estate;[280]  omit any registration requirement;[281]  and provide damages in the greater of one thousand dollars or actual damages with special provision for punitive damages and reasonable attorneys’ fees.[282]  Finally, the statute should include a list of exemptions that includes use for any original “transformative” creation,[283]  incidental use,[284]  or any news, public interest, or sports broadcast or account.[285]

Such a statute would grant North Carolinians legal protection for their identity in a meaningful way without overtly intruding on the rights guaranteed by the First Amendment. Allowing an action to be brought for fifty years following the death of an individual, but without creating a property interest in the right, will still protect the pecuniary and privacy interests of the individual and his descendants but will avoid sidelining the First Amendment. By allowing exemptions for “transformative,” incidental, or newsworthy uses, but not requiring the use to be for commercial purposes, the statute would provide protection for instances of noncommercially motivated uses such as revenge, malice, or similar motives, but still protect legitimate uses such as parody, social commentary, news and other such uses traditionally protected under the First Amendment. Finally, a provision for damages and fees would help deter would-be perpetrators by guaranteeing a minimum punishment.

the statute as concise and as simple as possible will help ensure the First Amendment is left room to breathe. Meanwhile, making the right explicit and uniformly applicable will provide North Carolina’s citizens with the protection they deserve in our ever-changing and increasingly digital world.

Conclusion

Just as technological advances in the early twentieth century led to legal protection for privacy,[286]  technological advances in the twenty-first century have led to the need for a meaningful right of publicity.[287]  In the past, photos and videos were only available in hard copy and wide distribution was both complicated and costly. Now, with the rise of social media, smartphones, and other technologies, vast amounts of people have “public” personas, with hundreds of photos and several videos containing their images available on sites like Facebook, Google+, and other user-generated content sites. This change in technology and in the way we interact has created rampant opportunity for unauthorized use and dissemination of individuals’ identities. This widespread misuse has prompted many states to adopt right of publicity protections, and it is time for North Carolina to follow suit by adopting a statutory right of publicity that effectively protects the identity rights of all its citizens without choking the First Amendment. As one commentator remarked, quoting Charles Dickens, “[t]here is probably nothing so strongly intuited as the notion that my identity is mine. If I cannot control my own identity and prevent [its] use by others, then the ‘law is a ass.’ ”[288]

_____________________________________________________________

The following items are available in the PDF version of the article:

Table I. Fifty States: Current Right of Publicity Laws

Table II. Summary of State Publicity Rights

Appendix A. Sample Statute

_____________________________________________________________

**  As with any undertaking of this size, thanks are in order. First, and always, my thanks to Hillary for her unwavering support. Second, a large thank you to Lauren Shor and the Law Review editors for their tireless efforts and long suffering on my behalf. Third, an equally large thank you to Sam Scheller, for providing the kernel that began this project, and Professor David S. Ardia, who helped flush out the initial ground work. Finally, thank you to Claire, Avery, and Henry for providing welcome distractions with your laughter and smiles.

DOWNLOAD PDF | 92 N.C. L. Rev.2065 (2014)

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