Contextual Integrity: Is Copyright a Good Privacy Protector?

Piqued by a purloined pug pic, a blogger has told Fox News “that if you want to use a photo or some other content I’ve created on a national TV broadcast, YOU SHOULD ASK FIRST AND YOU NEED TO PAY ME FOR IT.” Another blogger is worried about unauthorized uses of photos she puts on Flickr. And Michael Savage has sued CAIR for “excerpting a four-plus minute portion of the show and posting it on CAIR’s website.” Do the cases have anything in common?

Commenting on the first controversy, Andrew Ratner asks “Is everything on the Internet up for grabs?” I also want to ask: can a pug have a right of publicity? As a normative matter, I’m not as worried by the appropriation of the pug photo as I am by the uses of photos of individuals, and I think the right of publicity recognizes that distinction. . . but I imagine one of our smart commenters will point me to an animal right of publicity case.

But the right of publicity is really about commercial endorsements, and not necessarily the type of intrusion or mischaracterization that the Flickr blogger is worried about. She does not want her pictures repurposed for a blog that will present them in a sexualized light. She appears to want to maintain the contextual integrity of her self-presentation–an idea Helen Nissenbaum pioneered and which I briefly discuss here. I think educators who resist being taped reflect a similar concern–no one wants to end up being the “angry teacher” on YouTube.

Which brings me to Savage. Even if his copyright claim is doomed to fail, should he be able to use some sort of “contextual integrity” claim to insist that his broadcast be related in toto, or not at all? Or to insist that his side of the story be linked to on the CAIR website? I think that once someone puts something out on a radio broadcast, they lose the type of reasonable expectation of privacy that the Flickr blogger had (even if, say, she did not set the Flickr page to restrict access to the photos to those with permission to view them). Moreover, CAIR’s use seems like a classic fair use; the unsavory reuser of Flickr images is not being nearly as “transformative.”

But given the success of Google and Arriba Soft in the 9th Circuit, I would not be surprised to see these sexualized bloggers re-characterizing themselves as “search engines,” providing thumbnail images, and links back to the Flickr pages. At that point they may well be able to win a fair use claim. Even Fox might win if it satirized the supercute pug as one more blue-state indulgence. Which brings me back to my original point: copyright is probably an inadequate tool to stop this repurposing. The types of common-law privacy torts forbidding “appropriation” explored by Bill McGeveran and Dan Solove may work better. Rights to privacy ought to include some prerogatives of reputation management.

Hat Tip: Ann Bartow.

13 thoughts on “Contextual Integrity: Is Copyright a Good Privacy Protector?

  1. Frank, on this limited bit: “I also want to ask: can a pug have a right of publicity?”

    Nimmer said the answer is “no”: Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954). Since then, some claims have been brought and some theories have been floated but none have succeeded (as far as I know).

    If anyone is aware of anything to the contrary, please post a comment. I’m teaching a seminar on the right of publicity this semester and an exploration of this question might actually make a good paper topic for a student.

  2. Well, if it did, it would have to be a right of puglicity!

    I will try to make up for that awful pun by looking up a few cases on commercial personages like, say, Morris the Cat.

  3. Well, Morris might operate as a trademark, like Tony the Tiger or Niles the Camel. But the problem with the RoP is that since the right of publicity originates in the right of privacy, it shouldn’t apply to animals, who don’t have privacy rights. And I don’t think any state statutory schemes extend to animals.

    Still, I think I recall reading a case about a horse where someone tried a RoP claim…

  4. Much as I hate to disagree with Nimmer (cough, cough) I wonder if someone couldn’t persuasively argue an associative right of publicity, if an animal was closely linked to a person? I’m not a fan of RoP doctrine but if you’re going to have one driven by economics it makes just as much sense to “protect” Trigger as Roy Rogers.

  5. I agree with Ann’s point, which I was led towards in the “right of pug-licity” riff I put up on concurring opinions today. As Dogan put it, there might be an “exclusive right to evoke,” and if the dog evokes the person, we may want to protect their RoP my protecting uses of the dog.

    In this case, I do not think most people associated Truman the Pug with Sweetney the blogger.

  6. Well, you have a case like that in Motschenbacher, where a race car essentially was claimed under the publicity right of the driver. If Trigger can be analogized to a car (both are modes of transport, I guess) then maybe that would be close enough for some court somewhere.

    For me personally, Trigger, being a living creature, mostly evokes Trigger. Or, in the alternative, Dale Evans evokes Roy for me as much as Trigger does, yet Roy can’t claim a right of publicity in Dale. (Of course, Dale, unlike Trigger, has an independent right.)

  7. So this may lead away from animals but McKenna’s piece of Right of Publicity is quite good. It is The Right of Publicity and Autonomous Self-Definition vol 67 of Pitt. Law Review. The issue is control. Greg’s The Trademark Function of Authorship also drives at the issue. I must be honest and note that I think these arguments are dangerous as they offer too much control. My recent work tries to show why one may need and perhaps should have control while alive but after one dies almost all these claims should vanish.

  8. Honesty is good. I’m a fan of Mark’s piece too.

    I’ve actually got very ambivalent feelings about the right of publicity. The TM/Authorship article wasn’t so much an argument for greater powers for authors, but an argument that the Supreme Court’s Dastar decision operated contrary to the logic of trademark, especially w/r/t its solicitude for the interests of consumers.

    If we can generalize about these things, I remain a low-protectionist at heart.

  9. Greg

    To clarify, I think your article is quite clear about that point and does a good job noting the difficulties of the problem. My concern is that as Frank notes and you detail the move towards TM or privacy claims opens up high protectionist moves. That seems dangerous to me yet I like property and some protection. Lessig’s points on this issue ring true to me although many seem to think he is an anarchist.

  10. Just a footnote on the doctrinal point:

    I should clarify that while Nimmer says “no” as a matter of doctrine circa 1954, it’s pretty clear that he’d prefer the answer to be “yes” eventually, so Ann doesn’t have to disagree with Nimmer, exactly, this time.

    Also, out of curiosity, I looked at what Prof. McCarthy has to say on this. See J. Thomas McCarthy, 1 Rights of Publicity and Privacy § 4:36 (2d ed 2007). Short answer: no, it has never floated, but he’s also open to someone trying out a Trigger-type claim.

  11. Just read this blog today because I’m trying to learn more specifics about animals and the right to publicity or appropriation rights. The horse referred to above was Cigar. You can use Google to find the decision.

    Although it varies from state to state, I’m pretty sure you’ll find that right of publicity claims and appropriation claims have been made successfully if the animal is distinctive (versus looking like all others of its species or breed), and famous (recognizable), and sometimes if a secondary recognition has been established.

    Greg, I’m curious if you ever asked that student to research this topic. It’s a fascinating one. If you’ve learned anything different or new, please do share! Thanks.

  12. Hi Jill —

    On what basis are you sure of that?

    Other than the Cortez case about Cigar, there’s nothing out there on this, as far as I know.

    Good luck with your research!

  13. Oh — and in response to the question. No, I had quite a few students this semester writing some great papers on the subject of the right of publicity, but no one decided to talk about this particular niche!

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