Dustin Marlan (University of Massachusetts School of Law) has posted “The Dystopian Right of Publicity” (Berkeley Technology Law Journal, Vol. 37 2022) on SSRN. Here is the abstract:
Our society frequently describes privacy problems with the dystopian metaphor of George Orwell’s 1984. Understood through the Orwellian metaphor—and particularly the “Big Brother is watching you” maxim—privacy rights are forcefully invaded by the government’s constant surveillance and disclosures of personal information. Yet, privacy’s coined opposite, the right of publicity—“the right of every human being to control the commercial use of his or her identity”—still lacks an appropriate metaphor, making it difficult to conceptualize and thus to regulate effectively.
This Article suggests that the problems with a commercially transferable right of publicity can be usefully analogized to another chilling dystopia, Aldous Huxley’s Brave New World. Huxley wrote Brave New World as an expression of the anxiety of losing one’s individual identity in a technology-driven future. In the novel, Huxley envisioned a utilitarian society controlled through technological manipulation, conspicuous consumption, social conditioning, and entertainment addiction. In contrast to Big Brother’s forceful coercion, pacified citizens in the “World State” society willingly participate in their own servitude.
Commentators often focus on the fact that litigated publicity cases tend to overprotect celebrities’ fame to the detriment of creators’ First Amendment rights. The vast majority of publicity rights, however, actually belong to ordinary citizens. The Huxleyan metaphor’s depiction of technological manipulation, social conditioning, and identity loss thus reveals the constant, but constantly overlooked, publicity problem this Article labels the “pleasurable servitude.” In effect, by consenting to terms of service on social media, ordinary citizens voluntarily license rights in their identities to internet platforms in exchange for access to the pleasures of digital realities. Through this unregulated mass transfer of publicity rights, social networks strip away their users’ identities and sell them to advertisers as commodities. This Article claims that the pleasurable servitude is a form of surveillance capitalism deserving of regulation by means of “publicity policies” that would function analogously to privacy policies.