by Gillian Black. Oxford and Portland, Oregon: Hart Publishing, 2011. 223 pp. Hardcover £45. ISBN: 9781849460545.
Reviewed by Philip A. Dynia, Political Science Department, Loyola University New Orleans. Email: dynia [at] loyno.edu
Marlene Dietrich, Johnny Hallyday, Paul Hogan, Michael Douglas and Catherine Zeta Jones, Michael Hosking, George Athans, Vanna White, Bette Midler, Tom Waits, Johnny Carson. Aside from their celebrity status, what do these individuals have in common? All have litigated (in person or through his or her estate) in the field of publicity in countries—Germany, France, Australia, England, New Zealand, Canada, the United States--included within what the author describes as “Western jurisdictions” (p.85).
Advertising, media and merchandising practices are remarkably similar in all of these countries. And while these jurisdictions recognize a right of publicity (publicity encompassing three uses: media information, promotion, or merchandising) or a right to control the use of persona (a term that encompasses an individual’s name, image, indicia, information and reputation), there is a lack of unity in their judicial and academic responses, both in terms of understanding the nature of the right as well as the justification for such a right. In this book, an expansion and updating of her 2009 University of Edinburgh PhD thesis on publicity rights in Scots law, Gillian Black, a Lecturer in Law at Edinburgh University, seeks to bring order to the chaos. By and large she succeeds, at least in terms of theoretical coherence. What remains in the world of actual practice within Western jurisdictions is another story.
And as ever academe remains a world unto itself, treating the notion of a right to publicity as “something of a Marmite right — commentators either love it or hate it” (p.102). The concept of a “Marmite right” was thoroughly unfamiliar to this reviewer. An obscure Scottish Reformation sect, the Marmites? A cabalistic group of Enlightenment philosophers? Apparently, the reference is to a British food spread, made from yeast extract, whose powerful taste caused its British manufacturers to use the marketing slogan “Love it or hate it.” Presumably the slogan “With a name like Marmite it has to be good” was already taken.
A person’s image can be a powerful instrument. One consequence of the social use and versatility of personal image is that it can command a price—particularly if that person is a celebrity. Catherine Zeta Jones and Michael Douglas sold their wedding photographs to OK! Magazine for £1 million in 2000. In 2007, David Beckham was allegedly paid $20 million for his Emporio Armani advertising deal. Michael Jackson dead is well on his way to making more money than did Michael Jackson alive.
As Black notes at the outset, “[c]ourts and legal commentators . . . have [*653] struggled to identify and agree [on] a common legal response to publicity.” Still, “[c]onfusion ranges from terminology to taxonomy” (p.1). That is especially the case in the United Kingdom, where there is no specific right, resulting in publicity interests being addressed through other arguably less suitable legal doctrines. In the early 1950s the United States developed a “publicity as property” approach that currently relies on a wide range of state legislation, case law, federal jurisprudence, tort and unfair competition restatements that add up to something considerably less than a coherent whole, a system of “protection for publicity rights . . . not necessarily to be envied or emulated” (p.105). Civilian (i.e., Romanistic-European) jurisdictions appear to have developed the most principled solution, but their focus on personality rights often makes it difficult for them to accommodate the inescapable economic dimension of publicity exploitation.
Black utilizes an “a-jurisdictional” approach, although with frequent reference to “a range of Common law and Civilian systems, particularly the two in the United Kingdom” most familiar to her, namely “the mixed system of Scots law and the English Common law” (pp.5-6). Black seeks to return to first principles and to describe existing practices as a whole, the better “to provide a comprehensive picture of what publicity rights should look like, rather than what they do look like in any one jurisdiction” (p.196).
Black sets out three overriding goals that correspond to the three major parts of the book: (1) a review of the practice of publicity grounded in commercial practice in the Western jurisdictions; (2) an assessment of the justifications which support or undercut a legal right to regulate the practice; and (3) an analysis of how these justifications should shape a right of publicity in terms of limitations and exceptions.
Several chapters devoted to a review of the main analytical approaches to legal protection of publicity rights lead to the conclusion that property, personality, and appropriations doctrines, while identifying certain key elements of the right, fail to provide a comprehensive approach with widely accepted terminology. This survey of what happens in practice indicates that publicity involves the use of persona for media information, promotion or merchandising purposes. Publicity exploitation can be authorized or unauthorized, and recognition of both elements must be at the heart of any publicity right. Most importantly, it must be a right and not only a remedy.
Black notes that while some would argue that privacy is the ultimate underpinning of a right to publicity, actual practice in Western jurisdictions must lead to rejection of privacy as a basis for the right. While there are certain themes shared by both publicity and privacy—themes relating to information and image—Black concludes that privacy is both too wide and too narrow to provide a principled basis for publicity rights.
In addition to the need to establish clear parameters and uniform terminology, there is another question which lies at the heart of publicity in law—whether or not legal protection is justified. “It is this element which typically provokes most discussion and, inevitably, disagreement” (p.197). Black [*654] acknowledges that “publicity is not a right which is especially easy to justify. It is not a right which is clearly ‘good’ or beneficial: it is not a right which tackles poverty or outlaws torture or makes a notable contribution to scientific endeavour. On the other hand, neither is it a prejudicial or dangerous or oppressive right” (p.102). Black maintains throughout the book an even-handed perspective: “[a] publicity right may not feed the world, but nor is it intrinsically harmful” (p.103).
Black’s first justification is a pragmatic one, recognizing the reality of the practice and the uncertainty of the existing unsystematic legal response. Individuals and exploiters treat publicity exploitation as a valid commercial practice like any other. There is a large industry devoted to brand management, licensing, celebrity endorsement, and public relations. More importantly, there is also “a visible trend of unauthorised use followed by litigation to prevent or recover for this use. The courts have been willing to protect the interests of both the individual and the authorized exploiter” (p.103). In other words, the first justification is the need to bring order to the chaos of existing practice.
The remaining two justifications stem from recognition of the twin elements of dignitarian and economic interests inherent in publicity exploitation. One justification comes from the fundamental need to protect autonomy and dignity through control of publicity use of persona, the elements of which are inherently personal and worthy of protection. The other moves away from dignitarian considerations to economic efficiency, both for individuals and for the market as a whole, and the need to balance private rights and public interests.
In part three, Black shows how these rationales not only justify the right but provide the further benefit of starting to shape the right itself. From the fact that the right must protect personal interests inherent in each individual certain primary features of the right can be deduced, including the holder of the right, its inalienablity and consequently the difficulties in classing it as a property right. Analysis of society’s interests in freedom of expression and cultural communication lead to an understanding of the permitted uses of persona, the defenses that must be recognized, and the remedies that should be available where breach of the right is proved. All of these interests do not constitute reasons for dismissing publicity, but rather for considering limitations on the right for the benefit of the wider public. Black urges striking a balance between a private right of publicity and public interests. “The question of justifying a right is not an all-or-nothing quest for an unanswerable case for or against publicity. Rather, it is an opportunity to admit interests on both sides of the equation, and search for a balance through the initial recognition of the right and corresponding permitted uses” (p.197).
Black concludes that a “monopoly right of publicity” would meet the various objectives she has indentified, in that it would reflect the economic and dignitarian interests of each individual through the right to control use of persona, while recognizing the legitimate interests of other parties in using that persona in public to communicate and to share cultural [*655] meaning. “This right would be balanced and coherent, thereby protecting the interests of all parties involved and providing much needed clarity and certainty in the field of publicity” (p.198). Monopoly, or exclusive privilege, is “an exclusive, and valuable, right to do something and, hence, to stop others from doing the same thing” (p.148). In relation to persona, the individual is seeking to use it and prevent others from using it.
There is a similarity here to intellectual property, which is also a monopoly. Indeed, publicity has a number of other striking similarities with intellectual property, especially copyright, where both rights look to protect dignitarian interests—persona or creative expression on the one hand, while recognizing the economic benefits to be derived from exploitation on the other. Curiously, the strongest support for this conclusion comes from the leading American case, Haelan Laboratories v. Topps Chewing Gum. In that case, Judge Jerome N. Frank argued (as quoted by Black) that “a man has a right in the publicity values of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture…. Whether it be labeled a ‘property’ right is immaterial” (p.149). Black further remarks that it would be interesting to speculate on how publicity rights might have developed in the United States if subsequent jurists had concentrated on Judge Frank’s reference to exclusive privilege rather than his property observation.
Such a statutory monopoly right of publicity “is unlikely to be embraced by the legislatures in the United Kingdom in the near future” (p.198). Historical developments and the federal system militate against such legislation in the United States. Black nevertheless insists that her theoretical conclusions remain valid.
This reviewer is inclined to agree. Her conclusions are the product of a process of meticulous review and analysis of relevant court decisions, statutes, and academic studies, ranging through the sometimes confusing and contradictory legal systems that constitute Western jurisdictions. For every conclusion that she draws, Black first provides ample opportunities for both judicial and academic proponents of contrary views to be heard before proceeding to offer solid, persuasive arguments for her own positions.
Black concludes that “[w]hatever legal developments may arise . . . it is safe to predict that publicity as a practice will persist undiminished: celebrities will continue to operate as ‘cultural lodes of multiple meanings’ and to feature prominently in our daily lives, whether we are reading magazines, buying shampoo, or choosing a calendar for the coming year” (p.198) If the legal developments that arise do so in conjunction with some serious consideration of Black’s book, we can probably welcome those developments.
Haelan Laboratories v. Topps Chewing Gum 202 F.2d 866 (1953).
© Copyright 2011 by the author, Philip A. Dynia.