The right of publicity : privacy or property?Val Corbett

1

Forbes – The World’s Highest Paid Athletes (2014)

•#7 Roger Federer

•Total: $56.2m•Salary/Winnings: $4.2m

•Endorsements: $52m

Independent Colleges

2

Forbes – The World’s Highest Paid Athletes (2014)

•#6 Tiger Woods

•Total: $61.2m•Salary/Winnings: $6.2m

•Endorsements: $55m

Independent Colleges

3

Fenty v Topshop Ltd [2015]

Independent Colleges

4

Justifications of the Right of Publicity

•The Labour Theory•The Economic Theory•Personality Theory •Hegel’s Property Right

5

The Labour Theory

•Based on Locke’s theory of property

•The labour of one’s body and the work of one’s hands was one’s own property

•One should not ‘reap where one has not sown’▫Haelan Laboratories v Topps Chewing Gum

(1953).

Independent Colleges

6

Economic Theory

1st Argument:

•Incentive to undertake socially enriching activities

•For example, creating an identity which is to the cultural benefit of society▫Zacchini v Scripps-Howard Broadcasting Co.

Independent Colleges

7

Economic Theory

2nd Argument:

•Allocative efficiency – protection of scarce resources through private property rights ensures such resources not over-exploited

•Image rights are allocated to those who most “value” them i.e. the natural owner▫Irvine & Others v Talksport Ltd [2003]

Independent Colleges

8

Personality Theory

•Protects an aspect of human dignity - Kant

•Autonomy is an aspect of human dignity

•Personal identity is a characteristic of personhood and makes us unique

Independent Colleges

9

Personality Theory

Case Law of the ECHR:

•Von Hannover v Germany [2005]▫Princess Caroline of Monaco / photographs

taken in public and quasi-public places

•Reklos & Davourlis v Greece [2009]▫Unwanted photograph of baby taken in

hospital/refusal to give up the negatives to the parents

Independent Colleges

10

Personality Theory Critcisms:

•Implies a negative freedom rather than a positive liberty

•Defensive Right – does not give the right to control the use of one’s image

•‘Privacy’ not always engaged in publicity rights cases

Independent Colleges

11

Hegel’s Theory of Property

•Persons must have the ability to impose themselves on the external world

•Ownership of property allows the autonomous individual to express their freedom beyond their person and into the material world

•Moral – private property is an extension of one’s personality

Independent Colleges

12

Hegel’s Theory of Property

•Hegel – private property rights provide an expanded sphere of freedom

•One can thereby have some control over resources in the external environment (Radin)

•Such control takes the form of property rights

Independent Colleges

13

Hegel’s Theory of Property

•Hegel – Three characteristics of property rights:

▫Individual must establish possession/occupancy of the object

▫To establish ownership the individual must exploit the object

▫Property must be alienable/transferable

Independent Colleges

14

Personality as Property

•Signifiers of one’s identity are personal

•Sufficiently external to be capable of ‘ownership’

•External signifiers embodiment of the will of the individual - occupancy

Independent Colleges

15

Personality as Property

•Personality as property avoids labour theory criticism - It is “ours” because it is part of us

•Avoids privacy vs property confusion – considers both spiritual and economic harm

•It is a right to control one’s image

Independent Colleges

16

Freedom of Expression

•Right of publicity limited to protection from unwanted commercial exploitation

•Right of publicity applies only to those uses which uniquely identify the individual

•Right of publicity is descendible but subject to durational limit

Independent Colleges

17

Irish Position

•Norris v Attorney-General [1984]▫Right to privacy guaranteed under the

Consitution and is deemed “necessary for the expression of an individual personality.”

•Re a Ward of Court [1995]▫The right to refuse medical treatment

flowed from right of privacy and such a right was necessary “to ensure the dignity and freedom of an individual.”

Independent Colleges

18

Irish Position

•O’Keeffe v Ryanair [2002]

▫Defendant airline contractually liable for promise to provide “free flights for life” when the plaintiff had agreed in return to forgo her privacy and to partake in publicity for defendant – indirect recognition of the value of such rights.

Independent Colleges

19

The Privacy Bill 2012 • Section 3(2) – it shall be a violation of the privacy of an

individual for a person:

(c) to use the name, likeness or voice of the individual, without the consent of that individual, for the purpose of:

(i) Advertising or promoting the sale of, or trade in, any property or service, or

(ii) Financial gain to the said person,

If, in the course of such use, the individual concerned is identified

or, as a result of such use, is capable of being identified, and the

said person knew that the individual had not given such consent.

Independent Colleges

20

The Privacy Bill 2012

•Section 15 – the right to privacy is extinguished on death.

•Section 8(c) – the defendant may have to pay to the plaintiff damages equal to any, or any likely, financial gain accruing to the defendant as a result of the violation of the plaintiff’s privacy.

Independent Colleges

21