I don't know why this has happened to me. I work hard and I'm dedicated, but overall I'm totally surprised. What did I do to deserve this?
-- Vanna White n1
The celebrity is a person who is known for his well-knownness. . . .
[*128] He is neither good nor bad, great nor petty. He is the human pseudo-event.
-- Daniel Boorstin n2
Entertainment and sports celebrities are the leading players in our Public Drama. We tell tales, both tall and cautionary, about them. We monitor their comings and goings, their missteps and heartbreaks. We copy their mannerisms, their styles, their modes of conversation and of consumption. Whether or not celebrities are "the chief agents of moral change in the United States," n3 they certainly are widely used -- far more than are institutionally anchored elites -- to symbolize individual aspirations, group identities, and cultural values. n4 Their images are thus important expressive and communicative resources: the peculiar, yet familiar idiom in which we conduct a fair portion of our cultural business and everyday conversation. In December 1990, for example, shortly before the outbreak of the Gulf War, a story circulated in Washington that President Bush had boasted to a congressional delegation that Saddam Hussein was "going to get his ass kicked." n5 When reporters pressed Bush to confirm the statement, he did not answer directly. Instead, he hitched up his pants in the manner of John Wayne. Everyone got the point. n6
The fact that celebrities haul so much semiotic freight in our culture has a number of important consequences. One such consequence -- one with which American law, in my view, has been unduly impressed -- is that star images enhance the commercial value of commodities with which they are associated. Most obviously, celebrity sells cultural commodities: movies, records, videos, and so on. Since the early years of this century, when the Hollywood "star system" first took hold, n7 celebrity has been a vital factor of production in what Adorno and [*129] Horkheimer christened the "culture industry." n8 Beyond this, however, we can distinguish three central ways in which celebrity generates economic value. First, there is intense demand for information about the lives and doings of celebrities -- for news stories, gossip items, biographies, interviews, docudramas. n9 Second, there is a large and increasingly lucrative market for merchandise (T-shirts, posters, greeting cards, buttons, party favors, coffee mugs, school notebooks, dolls, and so on) bearing the names, faces, or other identifying characteristics of celebrities, living and dead. n10 Third, as contemporary advertising practice amply attests, celebrity enhances the marketability of a wide array of collateral products and services. n11
[*130] Conceivably, a legal order could assign all of these economic values in the same direction, either to the individual celebrity herself or to the public domain. Our legal order, however, has not adopted either of these polar approaches. Instead, it has divvied up the economic values associated with modern celebrity, enabling celebrities to capture (and monopolize) some, but not all, of them. Thus, on the one hand, celebrity personas may be freely appropriated for what are deemed to be primarily "informational" and "entertainment" purposes. Except in unusual circumstances, permission need not be obtained, nor payment made, for use of a celebrity's name or likeness in a news report, novel, play, film, or biography. Under current law, the "life stories" of celebrities are, for all intents and purposes, common property -- available to be told and retold at the pleasure, and for the profit, of the teller. n12
The merchandising and advertising values that attach to star images, in contrast, are privately held. By virtue of what is now widely known as the "right of publicity," n13 the "commercial" value of a celebrity's name, likeness, and other identifying characteristics is her private property, which she may enjoy and exploit, transfer and bequeath, as she alone thinks best. n14
[*131] Thus, for example, The National Enquirer is free to run a cover story on Johnny Carson's marital discords and parenting failures without obtaining his permission or making him payment, because the "newsworthiness" of the story will easily trump any claim Carson might assert for invasion of privacy or infringement of his right of publicity. Carson, however, can invoke his right of publicity to stop a small-time manufacturer from marketing a line of "Here's Johnny" portable toilets. n15 Similarly, the tabloids are free to profit by keeping the world abreast of Bette Midler's struggles to control her weight, but an automobile maker may not make unauthorized use of a Midler "sound-alike" in a television commercial. n16 The family of Dr. Martin Luther King, Jr., has no legal remedy against the revelation that the slain civil rights leader "engaged in extramarital sexual encounters on the last night of his life." n17 But King's family, having inherited his right of publicity, can stop the marketing of an inexpensive plastic bust. n18 Likewise, "pathographers" n19 of Elvis Presley can ply their trade without fear of liability, but Elvis impersonators n20 [*132] and marketers of Elvis paraphernalia n21 must reckon with the assignees of Presley's right of publicity.
Unlike the right of privacy, which has always had more than its share of skeptics and critics, n22 the right of publicity has been embraced enthusiastically by courts and commentators. Twenty-odd states n23 and several foreign jurisdictions n24now recognize the right of publicity, and inclusion of the right in the Third Restatement on Unfair Competition may be in the offing. n25 To be sure, reservations have been occasionally [*133] voiced on one score or another, n26 and disagreement exists about a variety of subsidiary doctrinal matters. n27 But there is a solid, indeed an overwhelming, consensus within the American legal community that the right of publicity is a good thing. n28 Thomas McCarthy, the chief expositor and promoter of the right of publicity, fairly describes the current [*134] state of judicial thinking this way: "[T]he initial phase of questioning what the Right of Publicity is, and whether it should exist at all, has passed into history. Most courts accept the existence of the right and concern themselves with polishing its contours as they apply it to a diversity of factual settings." n29
My purpose in this Article is to rain hard on this parade. I shall argue that this "initial phase of questioning" was brought to a close much too hastily, without a systematic, theoretically persuasive case ever having been made for recognition of an independent property-like right of publicity. To that end, I will try to show that the main arguments advanced in support of publicity rights are significantly less persuasive than is commonly believed, and that publicity rights exact a higher cost in important competing values (notably, free expression and cultural pluralism) than has generally been appreciated. I hope thereby to reopen the question of whether the right of publicity should exist at all, and to recast that question to take proper account of the possible impact of publicity rights on the distribution of cultural power in contemporary society.
The argument of the Article is organized as follows. In Part I, I attempt to situate the "right of publicity" issue in the context of a wider academic debate about contemporary popular culture. Proponents of publicity rights often talk as if all that is at stake here is money -- fairly big money, perhaps, but still "only money." For them, the controlling question is simply, "Who will benefit financially from a celebrity's publicity values -- the celebrity who created them or some freeloading stranger?" n30 As I see it, however, the stakes are both higher and more complicated. Publicity rights are about meaning as well as money. The question "Who owns 'Madonna'?" is not just a question about who gets to capture the immense economic values that attach to her persona. The question is also, even chiefly, about who gets to decide what "Madonna" will mean in our culture: what meaning(s) her image will be used to generate and circulate, and what meaning(s) she will have for us. By centralizing this meaning-making power in the celebrity herself or her assignees, the right of publicity facilitates top-down management of popular culture and constricts the space available for alternative and oppositional cultural practice. This is perhaps not reason enough to reject the right of publicity tout court. But it does place a heavy burden of justification on the proponents of the right.
In Part II, I examine the forces and interests that brought forth the right of publicity. The question I address in this Part is why the right of [*135] publicity did not emerge as a separate and distinct right until fairly recently. My central claim is that the commercial exploitation of famous persons is not, contrary to standard accounts, a new phenomenon. Large-scale commercial exploitation of famous persons goes back as far as the eighteenth century. What is new to our time is not the existence of so-called "publicity" or "associative" values, nor even their systematic commercial exploitation, but rather the magnitude of these values, the specific cultural and institutional mechanisms by which they are generated, and (above all) the widespread belief that famous persons ought to be able to capture these socially created values for themselves. The emergence of a right of publicity reflects, I shall argue, the triumph of a market-oriented, instrumentalist, individualistic understanding of fame over an older, more communitarian conception.
In Part III, I examine and evaluate the main justifications that courts and commentators have advanced in support of the right of publicity. These fall basically into three categories. There are, first of all, "moral" arguments, based on the supposed right of persons to "reap the fruits of their labors," and the correlative injustice of permitting others to "reap where they have not sown." Next, there are "economic" arguments, the most popular version of which is that the right of publicity, like copyright protection, provides needed economic incentives to creative effort and achievement. A related line of argument, advanced by Judge Posner and others, justifies the right of publicity as a mechanism for promoting allocative efficiency. Finally, some courts and writers argue for the right of publicity in terms of consumer protection. On this view, the right of publicity, like the law of trademark, promotes the flow of useful information about goods and services to consumers and protects them from deception and related marketplace harms. My ultimate conclusion is that these arguments, individually and cumulatively, are not nearly as compelling as is commonly supposed, nor as compelling as we have reason to demand. It may be possible to make a coherent and convincing case for the right of publicity. But that case has yet to be made.
They're talking dollars. As Jack Benny would say, dollars.
-- New York State Senator Emanuel Gold, referring to proponents of a proposed publicity rights law. n31
[*136] Contemporary proponents of the right of publicity have, in the main, exhibited surprisingly little interest in the basic question of justification. n32 The predominant tone in both the case law and the academic writing in this regard is impatient, even at times bullying -- as if only a fool or a prig would insist on an elaborate or arduous demonstration. Some seem content to rest upon an unanalyzed intuitive sense that a celebrity's persona simply is her "property," that if there is a "natural right" to any property, then this must surely be it. In a similar vein, Professor McCarthy, the author of the standard treatise on the subject, characterizes the right of publicity as "a self-evident legal right, needing little intellectual rationalization to justify its existence." n33 That celebrities should have exclusive control of the commercial use of their identities, McCarthy says, is simply "commonsensical." n34 "[O]ne wonders what all the fuss is about." n35
The nonchalance of this appeal to "common sense" is rather astonishing. "Common sense," after all, is not a faculty by which we can learn how matters are, much less how they should be. All we can learn through common sense, as Stuart Hall reminds us, is where something fits into "the existing scheme of things." n36 What appears to be "common sense" may be nothing but the particular view of a matter that most strongly supports and expresses the interests of powerful social groups, or that fits most snugly with other deeply rooted and unexamined beliefs. n37
That aside, there are good reasons to demand a full and persuasive justification for publicity rights. The first is the fact that the right of [*137] publicity redistributes wealth upwards. Whether or not the "principal danger to a just society today" is, as Richard Delgado tentatively suggests, the "purposeful enrichment" by the government of those "at the top," n38 governmental actions that make the rich richer surely demand very compelling justification. Why, we may properly ask, should the law confer a source of additional wealth on athletes and entertainers who are already very handsomely compensated for the primary activities to which they owe their fame? n39 The actor Arnold Schwarzenegger, for example, reportedly collected $10 million for his role in the movie Total Recall. n40 Ryne Sandberg recently signed a multiyear contract with the Chicago Cubs that pays him an average annual salary of $7.1 million. n41 Is that not enough, or even too much? Why should the law give entertainers and athletes a legal right that funnels still more money their way? Why not instead treat a famous person's name and face "as a common asset to be shared, an economic opportunity available in the free market system"? n42 There may well be a satisfactory answer to these questions, but if so, its name is certainly not "common sense."
But that is not all. There is still another -- and, to my mind, far [*138] more important -- reason why an appeal to "common sense" will not suffice here: publicity rights facilitate private censorship of popular culture. In order to see how this is so, and to appreciate why it is cause for serious concern, we need first to place the "right of publicity" issue in the context of a wider academic debate about the nature and distribution of cultural power in contemporary American society. Only then will we be in a position to see why "we're talking" much more than "dollars" here.
Since the early part of this century, when the entertainment industries emerged as large-scale capitalist enterprises, cultural power -- the power to make and circulate meanings, values, and symbolic forms -- has been steadily commercialized and centralized. n43 Popular culture is no longer, if it ever was, "a spontaneous, autochthonous expression of the people," n44 shaped out of their own material and discursive resources to suit their own needs and interests. The dominance of global entertainment and media conglomerates has instead made popular cultural practice predominantly a matter of consumption. n45 These developments have generated a lively and fascinating contemporary debate between "cultural pessimists" and "cultural populists" about the nature and distribution of cultural power in contemporary society. n46
"Cultural pessimists," who owe much to the seminal work of the Frankfurt School theorists, n47 see mass-mediated popular culture as a field in which dominant, repressive (in other words, consumerist, patriarchal, [*139] etc.) meanings are systematically reproduced and reinforced. n48 In their view, commodities produced and distributed by the culture industries dissolve, or at least conceal, social difference and conflict. "Cultural populists," n49 in contrast, generally view popular culture as contested terrain in which individuals and groups (racial, ethnic, gender, class, etc.) struggle, albeit on unequal terms, to make and establish their own meanings and identities. As the populists see things, the consumers of cultural commodities (movies, songs, fashions, television programs, etc.) neither uniformly receive nor uncritically accept the "preferred meanings" n50 that are generated and circulated by the culture industry. To varying degrees, depending on their social location and sophistication, consumers "resist" or even subvert these meanings. They "recode" cultural and even industrial commodities in ways that better serve their particular needs and interests, and "rework" them to express meanings different from the ones intended or preferred by their producers.
A full assessment of these rival positions is beyond the scope of this Article. The "populists" seem right to me, however, on several points that bear directly on the "right of publicity" issue. First, despite the dominance of global entertainment conglomerates, popular culture is not [*140] simply something that is "fabricated by technicians hired by businessmen" n51 and then imposed from above upon a passive, atomized, and uncritical populace. As Stuart Hall put it, the consumers of cultural commodities are not all "cultural dopes." n52 Their participation is not "limited to the choice between buying and not buying." n53 Instead, the consumption of cultural commodities can be, and often is, an active, creative practice, in which the "consumer" appropriates the product by investing it with (new) meaning. There is, as Paul Willis has shown, a "realm of living common culture" in which individuals and groups use cultural and industrial commodities creatively to do "symbolic work" and thereby "establish their presence, identity, and meaning." n54
To be sure, there are significant constraints on this popular meaning-making. Individuals and groups must do this symbolic work with centrally produced and distributed commodities. They must make their culture out of these commodities, for there are no other material or discursive resources available to them. n55 What is more, the instability or volatility of meaning must not be overstated. n56 The products or "texts" of the culture industries (films, television programs, music, fashion, stars, etc.) do generally come with "preferred" meanings already structured into them, meanings that often serve or reflect the interests of dominant groups. Against-the-grain readings of such texts may be very difficult to mount or sustain. The economic and ideological dominance of the culture industries thus significantly "limits the spaces and forms available for alternative or oppositional cultural practice." n57 But within these constraints, [*141] individuals and groups do participate actively in the process of generating and circulating meanings that constitutes "culture." While our culture is far from a perfect democracy, it is more participatory and open-textured than the bleakest contemporary followers of Adorno and Horkheimer allow. n58
The "populists" also get the better of the argument on another important point: the so-called "national audience" for mainstream cultural products is in reality composed of a large number of overlapping subgroups and subcultures structured along racial, ethnic, gender, generational, occupational, and other lines. These groups have their own histories, experiences, interests, and cultural competencies, which they bring to bear in the consumption (that is, the reception and appropriation) of cultural commodities. n59 For this reason, popular culture remains what it long has been: a struggle for, and over, meaning. It is a contest in which dominant groups try to naturalize the meanings that best serve their interests into the "common sense" and "taste" of society as a whole, while subordinate and marginalized groups resist this process with varying degrees of effort and success. n60 The contest is one in which the culture industries hold most of the cards, but in which there is some space for even relatively powerless groups and subcultures to generate or negotiate meanings that relate to their own experiences and positions and that serve their own interests better than does the dominant ideology.
It is impossible, I think, for the law to remain neutral in this contest. The law can strengthen the already potent grip of the culture industries over the production and circulation of meaning, or it can facilitate popular [*142] participation, including participation by subordinate and marginalized groups, in the processes by which meaning is made and communicated. The law can accelerate the already powerful trend toward centralized, top-down management of popular culture, or it can fight a rearguard (and perhaps futile) action on the side of a more decentralized, open, democratic cultural practice. Whether self-consciously or not, contemporary American intellectual property law has tended to throw its weight on the side of centralized cultural production.
In recent decades, as David Lange n61 and a few other writers n62 have observed, the law has moved more and more of our culture's basic semiotic and symbolic resources out of the public domain and into private hands. Consider, for example, the way in which antidilution doctrine is increasingly being used to enable corporations to manage their public personas and immunize them from oppositional recoding. n63 Or consider the recent "Gay Olympics" case, n64 in which the United States Supreme Court upheld the right of the United States Olympic Committee to prohibit a nonprofit gay rights organization from using the word "Olympic" to designate its own athletic competition, even in the absence of any likelihood of consumer confusion or deception. n65
The same centralizing process has been at work in the right of publicity area. The judicial and academic rhetoric on publicity rights makes reference to "economic incentives," "natural rights," and "unjust enrichment." The subtext, however, is control over the production and circulation of meaning in our society. This is so because star images are widely used in contemporary American culture to create and communicate meaning and identity. The fact that the culture and advertising industries routinely and systematically use celebrity images in this way should be obvious enough. Indeed, it is only because celebrity images carry and provoke meaning that they can enhance the marketability of the commodities with which they are associated. n66 Their "associative" or "publicity" [*143] value derives from their semiotic power. What is somewhat less obvious is that individuals and groups also use star signs in their everyday lives to communicate meanings of their own making. They make active and creative use of celebrity images to construct themselves and their social relations, to identify themselves as individuals and as members of subcultural groups, and to express and communicate their sense of themselves and their particular experience of the world. Indeed, celebrity images are among the basic semiotic and symbolic raw materials out of which individuals and groups "establish their presence, identity and meaning." n67
This is especially clear in the case of groups that are outside the cultural mainstream. Richard Dyer has observed that particularly intense audience-star relationships occur among groups such as adolescents, women, and gays, who experience extreme "role/identity conflict and pressure, and an (albeit partial) exclusion from the dominant articulacy of, respectively, adult, male, heterosexual culture." n68 Dyer shows, for instance, how urban gay men in the 1950s seized on the image of Judy Garland as a powerful means of speaking to each other about themselves. n69 Along the same lines, Rosemary Coombe has drawn our attention to the way in which "celebrity images provide the cultural resources which those in marginalized groups use to construct alternative gender identities." n70 She notes, by way of example, that James Dean provides contemporary lesbians "with an icon which may embody a challenge to dominant understandings of the causal connections between biology, anatomy, desire, and sexual practice." n71
It is not just the members of marginalized groups, however, who draw on the celebrity image bank to define and identify themselves, or to express their sense of themselves and their particular experience of the world. Everyone from the President on down n72 does it to some extent, often through the consumption and display of celebrity paraphernalia: T-shirts, posters, greeting cards, etc. When we buy, exchange, and display cultural commodities of this kind, we "are actively contributing to the social circulation" of meanings about the celebrity. n73 "The choice of which Madonna T-shirt to buy," as John Fiske has noted, "is a choice about which meanings of Madonna to circulate." n74 It is a consumption decision in the first instance, yet it is also something more.
[*144] An example may help to sharpen the point. n75 A few years ago, a bill was introduced in the New York Legislature to create a broad and descendible right of publicity. n76 During hearings on the bill, some of the testimony referred to a greeting card, said to be sold chiefly in gay bookstores. The card bears a picture of John Wayne, wearing cowboy hat and bright red lipstick, above the caption, "It's such a bitch being butch." n77 Wayne's children, among others, objected to the card not only on the ground that its sellers were making money from The Duke's image -- money that should go to them, or, in this case, to the charity of their choosing. n78 They objected also, indeed primarily, because in their view the card was "tasteless" and demeaned their father's (hard-earned) conservative macho image. n79 To his children, as to most of his fans, "John [*145] Wayne" epitomizes traditional America's mythic and idealized view of itself, its history, and its national character. What Wayne stands for -- what his image means in the mainstream cultural grammar -- is rugged individualism, can-do confidence, physical courage, and untroubled masculinity. That is the "preferred meaning" n80 of "John Wayne." It was on this preferred meaning that President Bush drew easily and effectively in communicating his military plans in the Gulf. n81 It is on that meaning, too, that Wayne Enterprises drew when it licensed the Franklin Mint to sell (for $395) a "serially numbered, non-firing" replica of the .45-caliber automatic pistol that Wayne "carried in so many great military films." n82
Nevertheless, against-the-grain readings of John Wayne are also possible. For instance, in a course on how to survive as a prisoner of war, the U.S. Navy uses the term "John Wayning it" to mean trying foolishly to hold out against brutal torture. The particular greeting card that Wayne's children and others objected to so strenuously represents an even more subversive inflection of Wayne's image. The card uses his image to interrogate and challenge mainstream conceptions of masculinity and heterosexuality. It recodes Wayne's image so as to make it carry a cultural meaning that presumably works for gay men, among others, but which Wayne's children (and no doubt many of his fans) find deeply offensive. If the New York Legislature were to make John Wayne's right of publicity descendible, however, it would confer on Wayne Enterprises n83 the power to determine that this particular appropriation of the John Wayne image is "illegitimate," and to enforce that determination by denying a license to the greeting card maker. Wayne Enterprises would henceforth have the power to fix, or at least try to fix, the meaning that "John Wayne" has in our culture: his meaning for us.
What it comes down to, then, is that the power to license is the power to suppress. When the law gives a celebrity a right of publicity, it does more than funnel additional income her way. It gives her (or her assignee) a substantial measure of power over the production and circulation of meaning and identity in our society: power, if she so chooses, to suppress readings or appropriations of her persona that depart from, challenge, or subvert the meaning she prefers; power to deny to others the use of her persona in the construction and communication of alternative [*146] or oppositional identities and social relations; power, ultimately, to limit the expressive and communicative opportunities of the rest of us. The result is a potentially significant narrowing of the space available for alternative cultural and dialogic practice. Publicity rights, in other words, move us even further away from what John Fiske has called a "semiotic democracy" n84 -- a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values.
The censorial potential inherent in the right of publicity is perhaps not reason enough to reject it tout court. After all, it is possible that this power will be used very sparingly -- although what evidence there is on this score provides little reason for optimism. n85 It is also possible that the law does not bite very hard or deep here, that while the existence of publicity rights deters or stifles some popular cultural production and prevents some representational practices, "social semiosis continues in spite of it." n86 It should, however, be up to the proponents of publicity rights to demonstrate that this is so. Absent such a demonstration, the risk of censorship and, perhaps more importantly, of self-censorship makes the burden of justification a substantial one. It falls to the proponents of publicity rights to explain why the risk is worth running. Appeals to "common sense" will not suffice here, nor will vague assurances that the First Amendment can be relied on to safeguard legitimate interests in expression. n87 Proponents of the right of publicity should be [*147] required to make a clear and convincing showing that important interests will be served by recognizing a property right in a celebrity's identity. In Part III, we shall see that no such showing has yet been made. First, however, we need to understand the forces, material and ideological, that have brought forth the right of publicity.
[A]lthough the concept of privacy which Brandeis and Warren evolved fulfilled the demands of Beacon Street in 1890, it may seriously be doubted that the application of this concept satisfactorily meets the needs of Broadway and Hollywood in 1954.
-- Melville Nimmer n88
Famous persons have not long had or even long laid claim to a property right in their identities. Despite intimations in earlier cases, n89 the right of publicity was recognized for the first time only forty years ago. n90 [*148] Why did it not emerge sooner? The standard answers -- that "nothing in our experience before the early 1900's . . . made such a right necessary," n91 and that the "[c]ommercialization of personality only recently has invaded our daily lives" n92 -- will not do. The right of publicity is not a new right for a new wrong. As will be seen below, large-scale commercial exploitation of famous persons goes back at least to the eighteenth century. It continued throughout the nineteenth century as well, all the while engendering little in the way of private complaint or social disapproval. Indeed, the practice seems to have been supported by a widely shared conception of famous persons as a kind of communal property, freely available for commercial as well as cultural exploitation. In this Part, I examine how and why this traditional common property conception was ultimately displaced by one more suited to what Melville Nimmer, in his seminal 1954 article on the right of publicity, unashamedly called "the needs of Broadway and Hollywood." n93
A. Commodification Ascendant: From Fame to "Celebrity"
As Leo Braudy has shown, the marketing of the images of famous persons became big business in the second half of the eighteenth century. n94 In 1774, for example, Josiah Wedgwood introduced a series of small portrait medallions of "Illustrious Moderns" that was an immediate hit with consumers and became a regular part of his factory's output. n95 Wedgwood followed up with "[p]lates, figurines, earthenware pitchers, flatware -- a multitude of household objects featur[ing] the faces of the new generation of great men." n96 By 1779, Wedgwood's medallions "were outselling the tea services through which [he] had first made his fortune." n97 Other entrepreneurs, in England and elsewhere, were quick to grasp the commercial possibilities and began to market large quantities [*149] of what some would now derisively call "celebrity paraphernalia." n98 This was probably lucrative business, yet Braudy makes no mention of any financially motivated complaint having been registered by or on behalf of the "great men" whose faces were appropriated, or of any social disapproval having been voiced. n99
Benjamin Franklin's experience while ambassador to France is quite instructive in this regard. Shortly after his arrival in France in 1776, Franklin's likeness began to appear "on medallions, snuffboxes, rings, clocks, vases, handkerchiefs, and pocket knives." n100 " n100 Louis XVI found this iconization of Franklin so excessive that he presented one of Franklin's devoted female admirers with a "chamber pot adorned with [Franklin's] picture." n101 Franklin recorded his reaction to these developments in a revealing letter to his daughter:
The clay medallion of me you say you gave to Mr. Hopkinson was the first of the kind made in France. A variety of others have been made since of different sizes; some to be set in lids of snuff boxes, and some so small as to be worn in rings; and the numbers sold are incredible. These, with the pictures, busts, and prints, (of which copies upon copies are spread every where) have made your father's face as well known as that of the moon, so that he durst not do any thing that would oblige him to run away, as his phiz would discover him wherever he should venture to show it. It is said by learned etymologists that the name Doll, for the images children play with, is derived from the word IDOL; from the number of dolls now made of him, he may truly be said, in that sense, to be i-doll-ized in this country. n102
Franklin's half-joking lament about the price in freedom and privacy exacted by fame anticipates a common complaint of modern celebrities. For our purposes, however, the interesting thing about this letter is that there is no hint in it of moral outrage or resentment. Judging by this letter, Franklin did not begrudge these entrepreneurs the profits they were deriving from his image, nor did he resent their failure to seek his consent.
Why is it that Franklin -- a man not blind to commercial opportunities -- did not feel offended, wronged, or cheated by this commercial appropriation of his face and fame? Why is it that other members of the [*150] founding generation such as Washington, Adams, and Jefferson likewise suffered commercialization of their personas without apparent complaint? Braudy points us toward a possible answer. The Founders, he says, believed that broad dissemination of their images would advance the interests of the nascent American republic. They viewed their images as a kind of common republican property, appropriately deployed in any way that would further the cause of independence and nation building:
Franklin, like Washington, Jefferson, and even the more artistically puritanical John Adams, appreciated the propaganda value of such images of an exemplary civic virtue, especially in France, the country to which the most elaborate appeals for support against England were being made. But it was even more effective in America, where the images of the new heroes served to help create a spirit of unity paralleled by the evolution of more abstract national symbols. America was organizing a culture from the ground up, and in that organization the unifying and crystalizing function of faces was of prime importance. n103
For these reasons, Braudy continues, the Founders grudgingly sat for portraitists and sculptors as a matter of "patriotic duty," notwithstanding their strong distrust of the aristocratic visual arts. This same sense of civic duty may also account in part for the Founders' tolerant attitude toward the more mundane sorts of commercial exploitation described above. Portraits and busts, after all, could be purchased by only a few of their fellow citizens, and would not be seen by many more. But mass-marketed household artifacts and decorative objects (plates, medallions, clocks, rings, and the like) helped to establish a genuinely democratic national iconography. n104
This is not to say that the members of the founding generation were indifferent to fame. On the contrary, the lust for fame was perhaps their "ruling passion." n105 Moreover, a central theme of their political thinking was that "[f]lame should be freely sought and freely given" as the "only proper reward" for civic virtue and heroism. n106 But "fame" for them was not mass notice or great popularity, not mere "well-knownness." It [*151] was rather the respect and esteem of those amongst their contemporaries (and posterity) who could "discriminate between virtue and vice." n107
Nor was "fame" for them an instrumental good, something to be sought and valued because it enabled one to get more of whatever else (money, power, sex) one wanted. It was rather an intrinsic or "final" good, sought and valued for its own sake, as a crown of achievement and reward for disinterested civic virtue. In the Founders' view, as Garry Wills has observed, "[t]he purity of a perfect heroism was its willingness to be rewarded only in fame." n108 Steeped in the classical republican tradition n109 and uncorrupted by modern economics, n110 they did not and perhaps could not conceive of fame as a business "asset," a means to material income, a mere commodity. n111 Indeed, the modern "economic" conception of fame (upon which, as we will see, the right of publicity is based) n112 was alien to Franklin's generation. It is hardly surprising, therefore, that they did not feel that entrepreneurs who commercially exploited their images were "cheating" them of the "fruits" of fame. Fame, as they understood it, was itself the sweetest "fruit" of all. n113
A century later we can again find manufacturers and merchants making widespread use of the names and faces of famous and prominent persons. For example, after John Brown was hanged by the State of Virginia for his role in the raid on Harper's Ferry, entrepreneurs marketed lithographs, prints, busts, and photographs of him. n114 During [*152] Sarah Bernhardt's 1880 American tour, manufacturers and merchants "cashed in with Sarah Bernhardt perfume, candy, cigars, and eyeglasses." n115 Two years later, when Oscar Wilde visited the United States on a much-publicized and controversial lecture tour, advertisers put his image on trade cards for such products as Marie Fontaine's Moth and Freckle Cure. n116 Even famous fictional characters were sometimes appropriated for commercial purposes. The appearance of George du Maurier's novel Trilby in 1894, for instance, touched off a "bohemianism" craze. n117 Along with massive book sales and theatrical productions came the marketing of what we (in the age of Dick Tracy and Batman) would call "peripherals": "Trilby shoes and foot accessories, bathing suits, cigars, cigarettes." n118
These are by no means isolated examples. According to the social historian Neil Harris, commercial exploitation of famous persons -- living and dead, political and theatrical, fictional and real -- was common throughout the nineteenth century: "From Jenny Lind to Georges du Maurier's Trilbymania, from Louis Kossuth to Lillian Russell, celebrities stood at the center of temporary epidemics. Hats, dolls, canes, bicycles, theaters, toys, dinnerware, furniture, cigars, liquors bore the likenesses, names, or special symbols of various personalities." n119 Yet, as earlier, this widespread commercial exploitation appears not to have generated much public outcry or private litigation. In Harris' view, "[s]ome unspoken assumption made famous people . . . a species of common property whose commodity exploitation required little control." n120
In the final two decades of the nineteenth century, however, this "unspoken assumption" began to be directly challenged both in the courts and in society at large. The shift is evident in an unsigned 1895 editorial in Case & Comment, entitled "Advertising Brigands," which scathingly criticized the commercial exploitation of famous persons:
"Any likeness of anything that is in Heaven above" we may [*153] expect to see in these days on city walls, slabsided rocks, or country barn doors, as the sign or trade-mark of some quack medicine or shoddy merchandise. If the "likeness" crammed into our vision by a persistent advertiser happens to be his own, we may as well resolve to "suffer and be strong." But when some immortal face that the nation loves is taken by a vulgar smart Aleck and degraded to an advertisement of eye salve, liver pills, or a cure for piles, we ought to be strong enough to make him do the suffering. n121
The editorial cited such specific "abuses" as cigars named for President Arthur and the English social philosopher Herbert Spencer, and a tea named for President Garfield. n122 Highly moralistic in tone, the editorial worried that before long "the sad, sublime face of Abraham Lincoln [would] be posted up everywhere to advertise 'Bloater's Bitters,' or 'Smart Cuss's Corn Cure[]'" and that mannequins of Martha Washington and Mrs. Grover Cleveland would be used "to display perfect fitting corsets or seamless suits of underwear." n123
Roughly contemporaneous with this editorial are the first reported lawsuits by prominent persons objecting to the unauthorized commercial appropriation of their names and likenesses. n124 In 1890, for example, Marion Manola, a comic opera star appearing in a New York City production of Castles in the Air, refused to allow herself to be photographed in costume (tights) for a poster advertising the show. When the production manager, disregarding her wishes, had a photographer snap a picture of Manola during a performance, she sought and obtained an ex parte injunction against its advertising use. n125
A year later Sir Morrell Mackenzie, a prominent English physician specializing in diseases of the throat, brought suit in New York against an American manufacturer for the unauthorized use of a spurious testimonial, complete with a facsimile of his signature, in connection with the sale of "Soden Mineral Pastilles." He complained of "damage to his professional standing and income as a physician," as well as "infringement [*154] of his right to the sole use of his own name." n126 Although Mackenzie would probably have been remediless had these events occurred in his native England, n127 the New York court, without citing any precedent or giving any explanation, entered a preliminary injunction.
In 1899, the widow of Colonel John Atkinson, described as a "well-known lawyer and politician," sued to prevent the marketing of a "John Atkinson Cigar," bearing her late husband's likeness on its label. n128 Although the Michigan Supreme Court declined to recognize a right of privacy and dismissed her claim, it characterized the defendant's conduct as "impertinen[t]." n129
[*155] These developments suggest that an important shift in attitude toward the commercial exploitation of famous persons was already underway around the turn of the century. Neither courts nor litigants were certain as yet, however, about what exactly was "wrong" with the unauthorized commercial use of a famous name or face to promote the sale of a product or service. n130 Some of these early celebrity litigants seemed primarily concerned about embarrassment n131 or reputational injury. n132 In two of the cases, what seemed to trouble the courts most was the risk that gullible consumers would rely to their detriment on a false suggestion of endorsement of a product (medicine) n133 or service (life insurance) n134 that vitally affected health or well-being. One editorialist expressed outrage at the "dishonor[]" being done to "the memory of our great Americans." n135 A New Jersey court, however, explained its decision to enjoin the unauthorized use of Thomas Edison's name and picture [*156] on a medicine label not in terms of "privacy" or "dignity" but in the language of property:
If a man's name be his own property, as no less an authority than the United States Supreme Court says it is[,] it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it. n136
This is perhaps the earliest judicial statement of the view that the interest infringed by unauthorized commercial appropriation of a public figure's identity is economic. The New Jersey court viewed Edison's persona as a thing of value, a commodity of which Edison should be deemed the owner and disposer. Unauthorized use of Edison's persona injured him by depriving him of the opportunity to market the commodity himself. As we will see below, n137 it took quite some time for litigants, courts, and commentators to come around to this view of the matter.
Before we follow up these doctrinal developments, however, we must try to understand why commercial exploitation of famous persons began to generate both public opposition and private litigation at this particular time. Had the images of famous persons become more valuable to advertisers and merchandisers in the 1890s? If so, why? Had the specific unauthorized uses to which these images were being put become more offensive? If so, how? Had "republican" and communitarian values and modes of thinking come under general pressure? It is not easy to give a confident answer to these questions. It is likely, however, that a set of related changes in journalism and advertising in the late nineteenth century are at least partly responsible for the new demand for protection against commercial appropriation.
Consider, first, the changes in advertising. Between the end of the Civil War and 1900, total expenditures on advertising soared, multiplying tenfold n138 and transforming the American landscape in the process. In urban centers, "every available building and public conveyance was plastered with some sort of commercial message," while "enterprising advertisers easily convinced rural inhabitants to have the same thing done to their roadside farm buildings." n139 More important for present [*157] purposes, there was a marked change in advertising content. Previously, advertising had mostly been word-based, usually presenting consumers with a "reason why" they should select the particular product. n140 In the late nineteenth century, however, the perfection of chromolithography n141 made possible a new kind of visual (i.e., image-based) advertising. Advertisers went on a binge of image appropriation, ransacking Greek mythology, the history of the Republic, the animal kingdom, and myriad other sources for visual images to attract attention to, and create favorable associations for, their products. n142 Illustrious persons, both living and dead, were among the most popular of the images that found their way onto trade cards, posters, and product labels in this period. Late-nineteenth-century cigar boxes, for example, bore the names and faces of scores of famous and prominent persons -- writers, artists, philosophers, politicians, military figures, royalty, and conquerors. n143 Likewise, when cigarettes began to be mass marketed, the names and faces of famous persons were affixed to their packs. "Buffalo Bill Cody" and "Robert Fulton" cigarettes were marketed in 1890. Ten years later, smokers could choose between "Thomas Jefferson 'Chums'" and "Tolstoi 'Russian Cigarettes.'" n144
The closing decades of the nineteenth century also brought several related changes in popular journalism. Daily newspaper circulation jumped from 2.6 million in 1870 to 8.4 million in 1890. n145 Important changes in journalistic practice accompanied the rising circulation. The "sensationalism" for which the journalism of this period is generally known was "less substance than style." n146 The emphasis on crime and [*158] police news, on "human interest stories" and High Society gossip, simply continued the tradition of the antebellum "penny press." n147 Where the tabloid newspapers of the 1880s and 1890s (like Hearst's New York Journal and Pulitzer's New York World) broke new ground was in format and layout. n148 In order to attract readers in the growing urban centers, newspapers radically transformed their "look." Large print and small page size were introduced to make newspapers easier for commuters to read on the bus. n149 Editors used screeching headlines, exclusive features, and illustrations "to attract the eye and small change of readers." n150 The development of new engraving techniques, particularly the "halftone" process, enabled newspapers and magazines for the first time to reproduce instantaneous photographs of people and events. n151 The result was the emergence of a genuinely pictorial or illustrated "personalities" journalism. n152
These parallel developments in journalism and advertising generated considerable anxiety, at least among certain elements of the "talking classes," and led to urgent demands for legal protection of "privacy." In 1890, Warren and Brandeis, expressing concern about the trivializing effects of gossip and the dangers of instantaneous photography, proposed recognition of a legal right of privacy. n153 In 1896, John Gilmer Speed warned that without a legally enforceable right of privacy "civilization must deteriorate, and modesty and refinement be crushed by brutality and vulgar indecency." n154 Speed, who was particularly distressed by the publication of surreptitiously taken photographs, insisted that even an actor has the "right to be let alone" when the curtain falls. n155 An editorialist in a legal magazine went so far as to urge adoption of a statute criminalizing the unauthorized use in advertising of the "portrait, likeness, or caricature of any other person, living or dead." n156
In sum, then, the turn-of-the-century appropriation cases described [*159] above are perhaps best understood as part of a larger cultural crisis occasioned by the shift from a word-based to an image-based society. n157 Prior to the late nineteenth century, even the most prominent Americans were known largely through their words or their deeds, rather than through their images. While the faces of Franklin, Washington, and perhaps a few others were widely known, "[i]t is quite likely," Neil Postman suggests, "that most of the first fifteen presidents of the United States would not have been recognized had they passed the average citizen in the street. This would have been the case as well of the great lawyers, ministers and scientists of that era." n158 In the closing decades of the nineteenth century, however, new technologies for the representation and dissemination of images -- instantaneous photography, chromolithography, the halftone process -- transformed advertising and journalistic practice, divesting elites of their facelessness. Suddenly, in greater numbers than ever before, prominent people found their names and images disseminated far and wide, not only in newspapers and magazines, but also on product labels, advertising posters, and trade cards. Some of them, especially in the metropolitan centers of the northeast, did not respond with the same equanimity and good humor that Ben Franklin displayed when French merchants made his face "as well known as that of the moon." n159 They were distressed, alarmed, and incensed, and they turned to the courts (and legislatures) for help. n160
[*160] In the opening decades of this century, the pace of this "Graphic Revolution" n161 quickened, with the introduction first of motion pictures and later of radio broadcasting. n162 Together these communication technologies constituted a powerful new "machinery of glory" n163 that swiftly transformed both the social physics and the economics of fame. Before this time, as Daniel Boorstin has said, people generally became famous the way Edison had -- by accomplishing something "great" in the world:
A man's name was not apt to become a household word unless he exemplified greatness in some way or other. He might be a Napoleon, great in power, a J.P. Morgan, great in wealth, a St. Francis, great in virtue, or a Bluebeard, great in evil. To become known to a whole people a man usually had to be something of a hero: as the dictionary tells us, a man "admired for his courage, nobility, or exploits." n164
Motion pictures and radio, however, abruptly uncoupled fame from greatness of achievement. Now people could become famous without doing anything particularly remarkable or admirable, simply by virtue of a magnetic "personality" or "some physical idiosyncrasy or personal mannerism which could become a nationally advertised trademark." n165 The result was an altogether new form of human eminence -- the "celebrity" n166 [*161] -- the "person who is known for his well-knownness." n167 Richard Schickel describes the sea change this way:
What happened in this period [1915-1925] was that the public ceased to insist that there be an obvious correlation between achievement and fame. It was no longer absolutely necessary for its favorites to perform a real-life heroic act, to invent a boon for mankind, to create a mighty business enterprise. . . . Beginning with the rise of the star system in Hollywood it was possible to achieve "celebrity" through attainments in the realms of play -- spectator sports, acting -- and almost immediately thereafter it became possible to become a celebrity (a new coinage describing a new phenomenon) simply by becoming . . . a celebrity. . . . n168
And whereas in earlier times great men or women "came into a nation's consciousness only slowly" through processes that "were as mysterious as those by which God ruled," n169now fame was something that could be purposefully fabricated, even overnight, by the masters of the new "machinery of glory." n170 Although the owners of this new technology did not immediately appreciate how useful and lucrative the mass production of celebrity would ultimately be, a "star system" took root in Hollywood as early as 1910. n171
[*162] Of course, even before the advent of motion pictures there had been stage "stars" who enjoyed great popular acclaim and renown. n172 But the relationship of nineteenth-century stage stars to their publics was much less intimate and intense than the relationship of the new movie stars to their "fans." Even those stage actors "who spent most of their lives on tour did not reach more than a tiny portion of their potential public in the course of a year." n173 People would get to see them perform once, maybe a few times, in a lifetime.
Moviegoers, in contrast, got to see their favorites regularly -- and, most importantly, they got to see them in close-ups. This fostered an illusion of intimacy and generated widespread curiosity about the stars' private lives and doings. The first fan magazine appeared in 1911, n174 and syndicated gossip columns, which reported on the careers and private lives of the stars, proliferated. n175
[*163] At the turn of the century, biographical articles in popular middlebrow magazines like Collier's and The Saturday Evening Post generally took as their subjects political leaders, businessmen, financiers, scientists, and inventors -- what Leo Lowenthal calls "idols of production." n176 But by 1920 these same magazines had already shifted attention to "idols of consumption": film actors, entertainers, athletes, and the like, people who excelled in the world of play. n177 Moreover, magazine biographies in the latter period focused not on the "public" accomplishments of this new recreational elite, but rather on their "private" lives: their relations with family and friends, their hobbies, amusements, and food preferences, their styles of dress and home decoration. n178 Readers of these magazine articles, it is crucial to note, were more than idly curious about "the lifestyles of the rich and famous." During these years, ordinary Americans increasingly began to look to the movies and to celebrities for cues about what they should buy and how they should live. Stuart Ewen writes:
The systematic link between celebrity and consumption was established, in the United States, during the 1920s and 1930s. The fan magazines and newspaper columns that covered Hollywood dovetailed with the movies to offer a seamless tableau of fashions, hairstyles, favorite foods, personal habits, reading interests, decorating ideas, and recreational interests, not to mention sexual proclivities, all of which were visible, many of which offered appealing alternatives to the stuffy residues of Victorianism, or the greenhorn habits of immigrant parents.
By 1939, Margaret Farrand Thorp . . . noted that the consumption patterns of Hollywood (on and off screen) had become a "standard of reference" for popular consumption, "making it possible for the housewife in Vermont or Oregon to explain to her hairdresser, her dressmaker, or her decorator, the ideal that she is striving to realize." n179
[*164] The commercial implications of these developments were not lost on either the movie studios or the advertising agencies. In the 1920s and 1930s, Hollywood and Madison Avenue joined forces in aggressively exploiting the newly immense power of movies and movie stars to inspire emulation and thus generate consumption demand. Two developments in this connection are especially noteworthy. The first is the widespread practice of "product placement" in the Hollywood movies of this period. The film studios routinely made their movies available to manufacturers and merchandisers as showcases for fashions, furnishings, accessories, cosmetics, and other consumer goods, in exchange for direct money payments, supplies of props, or free advertising for their own ventures. n180
A second and related development was the widespread use of celebrity names and faces in advertising tie-ins and product testimonials. Although the testimonial endorsement dates back at least to the seventeenth century, n181 the technique had fallen into some disrepute around the turn of this century because of its association with patent medicines. n182 During the 1920s, the J. Walter Thompson firm ("JWT") led the way in reviving the testimonial endorsement. n183 Stanley Resor, JWT's president, promoted the idea that "advertising messages should be 'personified' to take advantage of three basic tendencies in mass society: curiosity about others, the spirit of emulation, and the search for authority." n184 In democratic societies, Resor thought, these tendencies lead people to revere whoever most closely fills the role of "aristocracy." n185
Although socially prominent persons in America had long believed it to be beneath their dignity to lend their names for commercial purposes, in the early 1920s Resor's firm somehow managed to persuade a series of fashionable "great ladies" to endorse products in exchange for [*165] donations to charity. According to one advertising historian, the "break-through came in 1924 when Mrs. O.H.P. Belmont, the doyenne of New York society and a prominent feminist as well," permitted JWT to use her name in an endorsement of Pond's cold cream. n186 Mrs. Reginald Vanderbilt, Queen Marie of Rumania, and the Duchess de Richelieu -- a group of whom Proust might be proud -- quickly followed suit, each vouchsafing the virtues of Pond's. n187 These "great lady" endorsements probably legitimated and thus paved the way for product endorsements by people, including members of the new Hollywood "aristocracy," whose motives were somewhat less philanthropic. In any event, JWT and other advertising agencies were soon using the names and faces of movie stars and professional athletes to sell soap, n188 cigarettes, n189 sporting equipment, n190 cosmetics, n191 and other consumer goods. n192
[*166] By the 1930s, then, new "joint consumption" communications technologies (motion pictures, radio) had transformed not only the mechanisms by which fame was generated, but its commercial significance as well. The most obvious change was that celebrity itself had become a source of immense economic value. The "publicity values" of movie and sports stars could now be exploited profitably in a wide range of collateral endeavors. n193 Even more important is the fact that certain key economic actors had already begun to behave as if celebrity images were garden variety "commodities." Movie studios were routinely licensing the images of their players to advertisers and merchandisers in exchange for money payments, favorable publicity for their own ventures, n194 or free supplies of props. A number of licensing companies were even formed for the specific and sole purpose of marketing the names and faces of famous persons. n195
The law, however, had not yet caught up with these new commercial practices. In unusual cases unauthorized commercial appropriation of a celebrity's name or persona might be actionable as defamation, n196 [*167] unfair competition, n197 or trademark infringement. n198 And in some jurisdictions, a celebrity could invoke her "right of privacy" to prevent others from using her name or face for commercial purposes. n199 But these legal doctrines, for reasons that will be examined next, did not establish a framework in which either celebrities or their assignees could maximize the return on their image capital.
B. Commodification Triumphant -- From Privacy to Property
As Thomas McCarthy tells the story, the right of publicity was "carved out of the general right of privacy" -- "like Eve from Adam's rib." n200 In my view, this simile is doubly misleading. The right of publicity was created not so much from the right of privacy as from frustration with it. Moreover, as we will see, the whole matter was negotiated by courts and commentators with something less than divine ease and grace.
The right of privacy, first proposed by Warren and Brandeis primarily as an antidote to journalistic intrusiveness, n201 received its initial legal recognition instead in connection with the unauthorized advertising use of names and likenesses. In 1903, the New York Legislature, acting swiftly to reverse the Court of Appeals' decision in the notorious Roberson case, n202 adopted a statute establishing both criminal and civil [*168] liability for the unauthorized use of "the name, portrait or picture of any living person" for "advertising purposes, or for the purposes of trade." n203 Two years later, in Pavesich v. New England Life Insurance Co., the Georgia Supreme Court held the unauthorized use of a person's photograph in a testimonial advertisement actionable as an invasion of privacy. n204 In the ensuing years, more through judicial decision n205 than legislation, protection from unauthorized commercial use of name and likeness became a widely recognized aspect of the right of privacy.
The plaintiffs in Roberson and Pavesich asserted claims that fit comfortably within the basic conception of privacy as a "right to be let alone." n206 In both cases the plaintiffs had been plucked from obscurity and rudely exposed to widespread and unwanted publicity. They could plausibly claim keen embarrassment or distress at having their faces spread before all the world. n207 Claims of such emotional injury were not nearly as convincing when they came from celebrities, however. After all, how could a movie star or professional athlete, who had deliberately and energetically sought the limelight, complain of embarrassment or hurt feelings when an advertiser or merchandiser simply gave his face [*169] some additional publicity? How could someone like Babe Ruth, who had performed before thousands, posed for photographs, granted interviews, made paid public appearances, and endorsed products, n208 complain of distress or humiliation when his picture was used without his consent on a baseball card or in a cereal advertisement? His gripe was not that his name or likeness had been used, but rather that the user had not paid him for the privilege. n209 His grievance was uncompensated rather than unwanted publicity, and it was by no means easy to see what that had to do with privacy.
Understandably, then, when celebrity plaintiffs first came to the courts in the 1920s and 1930s seeking relief from unauthorized commercial appropriation on privacy grounds, the reception was generally cool or uncomprehending. A number of courts held simply that celebrities had waived their rights of privacy, not only as to news coverage and comment but as to commercial appropriation as well, by assuming positions of prominence and visibility. n210 In other jurisdictions, the rule that publicity is actionable only if "offensive" effectively barred celebrities from recovery for garden variety commercial appropriation. n211 And even where courts did not impose these obstacles, recoverable damages in privacy actions were limited to compensation for hurt feelings. Thus, the few privacy actions in which celebrity plaintiffs managed to prevail resulted in damage awards that were small or nominal. n212
In another respect as well, privacy theory proved a less than perfect vehicle for celebrities eager to extract the maximum possible benefit from [*170] their publicity values. A right of privacy, as a purely "personal" right, was neither descendible n213nor assignable. n214 Possessed of a right of privacy, Babe Ruth could license a manufacturer to use his name in connection with the sale of baseball bats, but this would really amount only to a "release": an enforceable promise not to sue the bat manufacturer for invasion of privacy. Ruth could also grant an "exclusive" license, yet this would amount only to an enforceable promise not to license anyone else to use his name in a similar connection. Either promise might well be worth something to a bat manufacturer. Yet what the bat manufacturer would have preferred to purchase from Ruth, and what it would have been willing to pay more money for, was the right to proceed directly against any third party competitor who made unauthorized use of Ruth's name in connection with the sale of bats. n215 Yet this right was not one that Ruth, possessed only of a nonassignable right of privacy, could confer.
By the 1930s, then, it was already evident that if a celebrity had only a right of privacy against unauthorized commercial use of her identity she would not be able to realize maximum benefit from her publicity values. Only if the law were to "propertize" these values, so that a celebrity could not only exclude others from using them but also transfer them for value in return, would she be able to enjoy their full benefit. Only then, too, could a fully functioning market in these values take hold.
This property paradigm, which had received some early support in Edison n216 and a handful of other lower state court decisions, n217 made its (unsuccessful) major league debut in 1935 in Hanna Manufacturing Co. v. Hillerich & Bradsby Co. n218 The plaintiff there ("Hillerich") had contracted with certain famous baseball players for the "exclusive right" to use their names, autographs, and photographs in connection with the sale and advertising of baseball bats. It then manufactured and sold bats [*171] of the styles and shapes preferred by the various players, marking them with the players' autographs. Hanna, a competing bat manufacturer, had no agreements with the players, but nonetheless made bats in the styles they favored and stamped their surnames in block letters on them. n219 Both companies' bats were marked conspicuously with their respective trademarks. Hillerich sued to enjoin Hanna's use of the players' names on two grounds: first, that Hillerich had a property right in the names; second, that Hanna's use of the names, by falsely implying that the players endorsed its bats, constituted unfair competition. The federal district court held for Hillerich on both grounds, enjoining Hanna from using on its bats the name of any player under contract with Hillerich, or from representing that any such player used or endorsed its bats. On appeal, the Fifth Circuit, while allowing a modified injunction on the unfair competition ground, n220 reversed the decision on the property ground. In the court of appeals' view, whether the right of the players to prevent unauthorized use of their names was a "personal" or a "property" right did not much matter. For in either event, the right was "not vendible in gross so as to pass from purchaser to purchaser unconnected with any trade or business." n221 In a passage that bespeaks coolness to the growing professionalism of sports and, more importantly, resistance to the commodification of fame, Judge Sibley explained: "Fame is not merchandise. It would help neither sportsmanship nor business to uphold the sale of a famous name to the highest bidder as property." n222 Accordingly, the court held that Hillerich's contracts with the players operated only to prevent the players from objecting to its own use of their names. Hillerich's rights against third parties were to be determined solely by the law of trademark and unfair competition. n223
The decision in Hanna Manufacturing was very unfavorably received by commentators. n224 This reaction is due in part, I suspect, to the growing strength within the legal community of a modern economic conception of fame. The older understanding, on which Judge Sibley's opinion in Hanna Manufacturing rested, was that a famous name, like a [*172] "good" name, is not something one can put up for sale in the marketplace. Fame, like reputation, is inalienable. It is something from which others may benefit, but which they cannot buy or own. As we have seen, however, in the opening decades of this century new communications media and new advertising practices had transformed both the cultural meaning and the commercial reality of fame, leading to the formation of an active, growing market in celebrity names and faces. In conjunction with these developments, some people began to conceive of fame as an instrumental good, a business asset like "good will," a commodity to be produced and exchanged like any other. As this alternative conception of fame grew in power, Judge Sibley's insistence on the "market-inalienability" n225 of fame increasingly came to seem naive, romantic, and obstructionist. n226
The decisive legal breakthrough for this new economic conception of fame came in 1953, in a case with facts similar to those in Hanna Manufacturing. The Second Circuit, per Judge Jerome Frank, held in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. n227 that people, especially prominent ones, "in addition to and independent of" their right of privacy, have "a right in the publicity value of [their] photograph[s]." This right could be licensed or assigned, and the licensee or assignee could enforce it against third parties:
This right might be called a "right of publicity." For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through [*173] public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses [sic], trains and subways. n228
Judge Frank impatiently dismissed as "immaterial" whether this "right of publicity" should be labeled a "property" right: "[H]ere, as often elsewhere, the tag "property" simply symbolizes the fact that courts enforce a claim which has pecuniary worth." n229
Although Judge Frank cited a few earlier decisions, he made no sustained effort to demonstrate, in the manner of Warren and Brandeis, that the right of publicity had already been implicitly recognized by the courts. Instead, he simply asserted, almost in passing, that unless celebrities were able to grant a licensee protection against third parties, the publicity values of their photographs would "usually yield them no money." n230 He made no attempt, however, to explain why this should be cause for judicial concern. Indeed, he offered no rationale whatsoever for the new right beyond the fact that, without it, celebrities would be denied image revenues and thus "feel sorely deprived." n231 Nor did he consider [*174] the offsetting costs of recognizing such a right. Most importantly, the Haelan Laboratories opinion contained not a trace of moral or conceptual uneasiness about the commodication of personality. It seemed natural and obvious to the court that celebrity personas should be treated as garden variety commodities, to be bought and sold in the market like any other. After all, a thriving market in these "commodities" had been in existence for some time. The court was simply giving legal form (and protection) to a preexisting commercial practice. n232 With Haelan Laboratories, the market-alienability of celebrity images was well on its way to being naturalized as Professor McCarthy's "common sense." n233
A year after Haelan Laboratories, the nascent "right of publicity" received its first systematic exposition in a seminal article by Melville Nimmer. n234 Self-consciously patterned on the great Warren-Brandeis privacy essay, Nimmer's article rehearsed the inadequacy of available legal theories to protect the commercial interests of celebrities in their identities, urged as a solution recognition of an independent right of publicity (now unequivocally described as a property right), and briefly outlined a cause of action for its infringement. n235 Although Nimmer made passing references to "community needs," n236 it was what he candidly called "the needs of Broadway and Hollywood" n237 that seemed chiefly to concern him. Indeed, the article can perhaps best be read as a high-class form of special-interest pleading for the star image industry. n238 Nimmer, [*175] however, was shrewd enough to see that the proposed commodification of celebrity personas would be more acceptable to courts and legislatures, as well as the general public, if it was grounded in moral principle. And so John Locke n239 goes to Hollywood:
It is an unquestioned fact that the use of a prominent person's name, photograph or likeness (i.e., his publicity values) in advertising a product or in attracting an audience is of great pecuniary value.... It is also unquestionably true that in most instances a person achieves publicity values of substantial pecuniary worth only after he has expended considerable time, effort, skill, and even money. It would seem to be a first principle of Anglo- American jurisprudence, an axiom of the most fundamental nature, that every person is entitled to the fruit of his labors unless there are important countervailing public policy considerations. Yet, because of the inadequacy of traditional legal theories . . . persons who have long and laboriously nurtured the fruit of publicity [*176] values may be deprived of them, unless judicial recognition is given to what is here referred to as the right of publicity. . . . n240
Later in this Article I will examine and criticize this rationale for publicity rights at some length. n241 For now, I only note that Nimmer's appeal to celebrity "labor" recalls a larger public relations effort mounted by Hollywood in the preceding decades to persuade the American public that film stars owed their fame and fortune to old-fashioned hard work. Concerned to put the scandals and excesses of the 1920s behind them, Hollywood's image-makers in the 1930s and 1940s undertook what Richard Schickel calls "a massive effort . . . to reeducate the public," to convince them that movie stars, though extraordinary in talent, beauty, and income, were "entirely like their audience in basic values and desires." n242 This "myth of ordinariness" was reinforced, Schickel says, by "a myth of hard and . . . anxious work." n243 "[W]hatever the stars had," the public was constantly assured in these years, "they earned. However luxuriously they might disport themselves in the Sunday rotogravure, however carefree they might look in the snaps from Ciro's and the Mocambo . . . it was constantly put about that . . . the stars worked farmers' hours in factorylike conditions." n244 Consciously or not, Nimmer deftly deployed this "myth of hard and anxious work" in defense of a right of publicity. As we will see below, even today the right of publicity draws its chief moral and rhetorical support from this same source. n245
Although Haelan Laboratories and Nimmer's proposal received favorable early notices in the law reviews, n246 the courts were initially reluctant to embrace the new right. n247 Whether this is attributable in any part to the lingering influence of the traditional noneconomic conception [*177] of fame is hard to say. n248 In any event, the right of publicity, helped along by some kind words from Professor Kalven n249 and later from the Supreme Court, n250 gradually began to win widespread judicial n251 and scholarly n252 acceptance. In the last decade or two, as the "celebrity industry" n253 has grown in power, organization, and sophistication, and as the costs involved in celebrity production have soared, the pressure for legal commodification of personas has intensified. This is pressure that would-be appropriators (and consumers who might share their interests in free use) have had neither the cohesion, lawyering skill, nor lobbying muscle to counter this pressure effectively. The result has been a steady stream of judicial decisions and statutes recognizing a property-like right of publicity n254 and expanding its scope. n255 This has come about, as will [*178] be seen next, despite the fact that the rationales most commonly advanced in support of the right of publicity nowadays are no more compelling than those put forward by Judge Frank and Melville Nimmer in the early 1950s.
I am my own commodity. I am my own industry.
-- Elizabeth Taylor, objecting to an ABC docudrama based on her life n256
Only that audience out there makes a star. It's up to them. You can't do anything about it. . . . Stars would all be Louis B. Mayer's cousins if you could make 'em up.
-- Jack Nicholson n257
The main justifications advanced in support of publicity rights fall basically into three categories. There are, first of all, "moral" arguments, based on the supposed right of persons to "reap the fruits of their labors," or the injustice of permitting others to "reap where they have not sown." Next, there are "economic" arguments, the most popular version of which is that the right of publicity, like copyright, provides needed incentives to stimulate creative effort and achievement. A related line of argument, advanced by Posner and others, justifies the right of publicity as a mechanism for promoting allocative efficiency. Finally, some courts and writers argue for the right of publicity in terms of consumer protection. On this view, the right of publicity, like the law of trademark, promotes the flow of useful information about goods and [*179] services to consumers and protects them from deception and related marketplace harms. In the discussion that follows, I examine and evaluate these various arguments in turn. For the most part, my critique in this Part is internal: I take each argument on its own terms and attempt to show either that it fails, or that it relies upon empirical or normative premises, usually unstated, that are controversial, dubious, or clearly erroneous. My ultimate conclusion is that these arguments, individually and cumulatively, are not nearly as compelling as is commonly supposed, nor as compelling as we have reason to demand.
A. Moral Arguments for Publicity Rights
I have heard it said, with seeming seriousness, that a property right in identity is something a celebrity "deserves" simply for becoming famous. The suggestion is a very curious one. Fame, after all, is "no sure test of merit." n258 Whatever may once have been the case, plenty of people become famous nowadays through sheer luck, through involvement in public scandal, or through criminal or grossly immoral conduct. More to the point, even commercially marketable fame can be achieved in this fashion. Donna Rice, for example, landed an advertising contract with "No Excuses" Jeans after her relationship with Senator (and presidential candidate) Gary Hart was made public. n259 Britain's Great Train Robber, Ronald Biggs, while living as a fugitive in Brazil, "appeared in an ad touting a good cup of coffee 'when you're on the run, like me.'" n260 More recently, the successful marketing of "trading cards" of serial killers and other famous criminals -- Jeffrey Dahmer, Richard Speck, etc. -- has attracted legislative attention. n261
To be sure, advertisers generally prefer to use the persona of a celebrity whose fame is not ill-gotten -- someone whose glamor, credibility, or popularity may rub off on the advertised product or service. But not always. Often enough, an advertiser wants a celebrity image simply to attract attention -- to lift its commercial message out of the general "clutter." n262 Photographs of the villain elite -- national enemies, mob leaders, [*180] people involved in notorious sex or political scandals -- can be very useful to advertisers for this purpose. For example, shortly after Panamanian General Manuel Noriega was deposed and flown to Miami, the British airline Virgin Atlantic ran an ad with his mug shot and this headline: "Only one person can fly into the USA for less than [90 pounds]." n263 In the weeks after the Iraqi invasion of Kuwait, advertisers put Saddam Hussein's picture to similar use. n264 Advertising of this kind raises an interesting question about the scope of the right of publicity. n265 But that issue aside, the key point for now is simply that being famous, by itself, [*181] does not make a person deserving of all the fruits of her fame. If public figures are morally entitled to a property right in the commercial value of their identities, it must be on some basis other than their fame itself. n266
The basis most frequently and confidently advanced by courts and commentators is the labor theory on which Nimmer originally relied. In his seminal 1954 article, Nimmer purported to derive the right of publicity from what he called an "axiom" of Anglo-American jurisprudence: "that every person is entitled to the fruit of his labors unless there are important countervailing public policy considerations." n267 Nimmer contended that a person who has "long and laboriously nurtured the fruit of publicity values," who has expended "time, effort, skill, and even money" in their creation, is presumptively entitled to enjoy them himself. n268 Numerous courts and writers have since justified the right of publicity in similar fashion: some emphasizing the celebrity's affirmative entitlement, as a matter of moral right or desert, to reap "the fruits of his labors" or to control what he has created; n269 others stressing the supposed injustice of permitting strangers to "reap where they have not sown." n270 In the next two Sections I examine and evaluate this cluster of moral arguments for the right of publicity. n271 My central contention is that there is a good [*182] deal more to the generation of a commercially marketable public image than the "labor" of the star herself. Once we appreciate what else is involved, a labor-based moral argument for the right of publicity loses much of its initial appeal.
1. The Claims of "Labor" on the Fruits of Fame
A labor-based moral argument for publicity rights presupposes that commercially marketable fame is no mere gift of the gods. For the argument to be plausible, a commercially marketable public image or persona must be viewed as the celebrity's own product, something that she herself makes or creates by her own individual labor. Most courts subscribe to some such view. Judicial opinions generally treat commercially valuable fame as a crown of individual achievement, the result of conscious and sustained effort in a chosen field of endeavor. Time and again, right-of-publicity plaintiffs are described by the courts as carefully "cultivating" their talents, slowly "building" their images, judiciously and patiently "nurturing" their publicity values -- as working long and hard to make themselves famous, popular, respected, beloved. The bandleader Guy Lombardo, one court says, "invested 40 years" in "carefully and painstakingly" building "his public personality as Mr. New Year's Eve." n272 Elroy "Crazy Legs" Hirsch, another court assures us, devoted "much time and effort" to "assiduously cultivat[ing] a reputation not only for skill as an athlete, but as an exemplary person whose identity was associated with sportsmanship and high qualities of character." n273 A much-cited federal district court opinion puts the general point this way: "A [*183] celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics, and other personal characteristics, is the fruit of his labors and is a type of property." n274
Law review writers, too, generally see a commercially valuable public image as something a star attains largely on her own, through some combination of talent, effort, intelligence, pluck, and grit. Professor Sims, for example, says that a celebrity usually creates "a positive or otherwise intriguing image in the public mind, with the concomitant ability to attract the public's patronage, consumption, or support of that with which his name or likeness is associated," in the same way a professional person or business creates "goodwill" -- namely, through "the expenditure of considerable time, money, and effort." n275 Professor McCarthy opines that "[w]hile one person may build a home, and another knit a sweater so also may a third create a valuable personality, and all three should be recognized by the law as 'property' protected against trespass and theft." n276 A student commentator offers this analogy to drive home the point:
A carpenter begins with a virtually worthless piece of wood. Through a combination of hard work, time, and skill, he converts it into a beautiful chair. He now has a thing of value where none existed before. Similarly, a celebrity begins as an unknown. He has no publicity value. Through the investment of many years of hard work, he makes his name and face marketable. Like the carpenter, he has created a valuable asset where none existed before. n277
This "moral" argument for publicity rights has a fair measure of intuitive appeal. The petit bourgeois heart that secretly beats in all our breasts cannot but swell at the thought that Madonna's claim to the commercial value of her public image is morally indistinguishable from a carpenter's claim on a chair that he has built from scratch. Closer examination, however, reveals a number of serious problems with this line of argument for the right of publicity.
The first problem, which plagues labor theories of property generally, is that it is by no means evident that anyone -- carpenter or celebrity -- has a natural or moral right to the full market value of the product [*184] of her labor. n278 The second problem cuts deeper. The labor-desert rationale for publicity rights is based, I will argue, on a fundamental misconception of the processes by which fame is generated and public images are formed in contemporary society. When we look at these processes without ideological blinders, we find that celebrities generally do not create commercially marketable public images in anything like the way carpenters make chairs. The notion that a star's public image is nothing else than congealed star labor is just the folklore of celebrity, the bedtime story the celebrity industry prefers to tell us and, perhaps, itself.
In order to assess the strength of a labor-based moral argument for publicity rights, the first thing we need to know is how "publicity" or "associative" values come into being. More specifically, we need to know the extent to which it is the "labor" (time, money, effort) of the celebrity -- or of persons whose labor can be imputed to her -- that produces or ultimately underlies these economic values. The British semiotician Judith Williamson provides a useful starting point for our analysis. According to Williamson, a star persona can enhance the marketability of the commodities with which it is associated only if it already means something to the rest of us. Williamson makes this point very clearly in analyzing an advertisement for Chanel No. 5 perfume, which consisted of a close-up photograph of the French actress Catherine Deneuve juxtaposed with a photograph of a bottle of the perfume. As Williamson explains it, Chanel is using what Catherine Deneuve "means" to us already in order to establish a desired meaning for its perfume:
It is only because Catherine Denueve has an "image", a significance in one sign system, that she can be used to create a new system of significance relating to perfumes. If she were not a film star and famous for her chic type of French beauty, if she did not mean something to us, the link made between her face and the perfume would be meaningless. So it is not her face as such, but its position in a system of signs where it signifies flawless French [*185] beauty, which makes it useful as a piece of linguistic currency to sell Chanel. n279
This passage helps us see that it is only because star images are sources and bearers of meaning that they have the power to "sell" commodities with which they are associated. Their economic value (their "associative" or "publicity" value, to use the terms favored by Halpern and Nimmer, respectively) derives from their semiotic power -- their power to carry and provoke meanings. n280 But how is it that a star's face becomes a "sign"? How are these meanings generated and what part does star "labor" play in the signifying process?
Unfortunately, courts and commentators have shown little interest in these questions. Instead, the courts make general and often platitudinous assertions, unsupported by any empirical evidence, about how celebrities achieve fame and distinctive public images, and then the commentators cite judicial opinions as support for the same propositions. n281 This gets us nowhere. To evaluate the merits of a labor theory of publicity rights, we need to know what the mechanisms of renown in our society really are, not just what the folklore of celebrity says they are. We need to know how a person's face becomes a "sign," how it comes to have a specific meaning (or range of meanings) for others, and what role star "labor" plays in the overall process. And the best way, if not the only way, we can find this out is inductively, by looking at what John Rodden has called "reputation-histories." n282
Consider, for starters, the case of Einstein. Why did he, alone among theoretical physicists in this century, achieve worldwide recognition and commercially marketable fame? Why has his name, rather than Bohr's or Schrodinger's, become virtually synonymous in our vernacular with "genius"? Why is it his face, rather than Heisenberg's or Pauli's, that today stares out at us from advertisements, T-shirts, posters, greeting cards, and even party favors? n283 Why, in short, is his face a "sign," while theirs are not? Our first instinct may be to reject these questions as [*186] somewhat foolish. Einstein, we may think, was a great scientist, probably the greatest scientist of the century, and a "great soul" to boot. Surely, neither his renown nor his cultural significance needs explanation: things could not have turned out otherwise.
Yet a recent article by the historian Marshall Missner casts doubt on this easy answer. Missner has marshalled impressive evidence that Einstein's fame, in America at least, was "by no means inevitable." n284 The process by which Einstein became a celebrity in America in the years immediately after World War I was instead "a tale of serendipity -- a publicity campaign run by an invisible hand." n285 Although it is a long way from Einstein to Madonna and Vanilla Ice, and from the 1920s to the 1990s, Missner's study can teach us something about the mechanisms of renown and popular meaning-making in our society -- about the ways in which fame is generated and specific public images are formed in an era of mass communications. For that reason, I will set out a brief summary of his findings.
Missner suggests that the first puzzle to be explained is why the theory of relativity itself attracted so much public attention. The theory, put forward by Einstein in 1905, "did not have any obvious technological consequences at the time." n286 Nor did it conflict, in any obvious way at least, with religious dogma. True, it was a great theoretical achievement, but the achievements of Bohr and Heisenberg "were of at least similar magnitude" and yet "did not gain any public recognition at all." n287 Why, then, did Einstein's theory cause a public sensation, both in Europe and America, while their work did not? The initial factor, Missner claims, was the dramatic way in which the theory was confirmed: by observation of the deflection of light during the solar eclipse of May 1919. n288 This confirmation was announced, with great fanfare, at a scientific conference held in London in November of the same year. n289 Subsequent newspaper and magazine accounts did much to fuel public interest in the theory, trumpeting it as a "revolutionary" discovery that upset common sense assumptions about time and space. n290
[*187] According to Missner, however, the primary reason the theory aroused intense interest in the United States was its political and ideological resonance. n291 The period immediately after World War I was a time of intense xenophobia; there was widespread fear of social revolution and alien, antidemocratic conspiracies. The theory of relativity, at least as presented by the popular press, struck many Americans as elitist, sinister, and subversive. n292 Revealingly, a story somehow took hold after 1919 that only "twelve men" in the entire world (all foreigners, presumably) really understood Einstein's theory. n293 Editorialists voiced concern that this elite might ultimately use their knowledge of the theory to alter basic aspects of reality -- to "bend" space and time, to enter a "fourth dimension," and so on -- and thereby achieve world dominion. n294 Even the sober editors of The New York Times railed against the theory's antidemocratic implications. n295
In April 1921, Einstein himself paid his first visit to this country as part of a Zionist delegation led by Chaim Weizmann. The American mainstream press misinterpreted the tumultuous welcome that New York City's Jews gave to the delegation, and to Weizmann in particular, as a "hero's welcome" for Einstein. The Washington Post, for example, headlined its account of the arrival: "Thousands at Pier to Greet Einstein." n296 The New York Times misreported the event in similar fashion. n297 These erroneous reports helped to generate keen curiosity about Einstein as a person. Reporters who sought him out for interviews were relieved to find that he was not a "haughty, aloof European looking down on boorish Americans," n298 but a modest, humorous, and informal man, who "smiled when his picture was taken, and produced amusing and quotable answers to their inane questions." n299 The fact that Einstein wore rumpled, ill-fitting clothing, played the violin, and smoked a pipe seemed particularly reassuring. He simply did not look like "the 'frightening Dr[.] Einstein,'" the "destroyer of space and time." n300
Before very long, the press coverage turned sharply in Einstein's favor, and less was heard about his theory's sinister implications. Einstein had come to America in April 1921, as the somewhat obscure originator of a frightening and "un-American" theory. He left, two months later, a person revered in the American Jewish community and [*188] widely admired in the general populace, well on his way to secular sainthood and cultural iconization. n301
What can we learn from this about the processes by which fame is generated and public images are formed in our society? First, Missner's account underscores an elementary, but occasionally overlooked, sociological truth about fame: fame is a "relational" n302 phenomenon, something that is conferred by others. A person can, within the limits of his natural talents, make himself strong or swift or learned. But he cannot, in this same sense, make himself famous, any more than he can make himself loved. Furthermore, fame is often conferred or withheld, just as love is, for reasons and on grounds other than "merit." There is ample room for disagreement about just how wide the gap between fame and merit actually is, about just how contingent and morally arbitrary the mechanisms of renown really are. n303 Still, Missner's account illustrates that the reason one person wins universal acclaim, and another does not, may have less to do with their intrinsic merits or accomplishments than with the needs, interests, and purposes of their audience. n304 That Einstein became a celebrity, a cultural icon, while Bohr and Heisenberg did not, had less to do with the quality of his (and their) achievements than with our needs and preoccupations. n305 And if Einstein's persona still has significant "publicity value" today, if advertisers and T-shirt makers are still eager to use his face, that is in good part because fame, however initially acquired, tends to "feed[ ] on itself." n306
Second, and this is closely related to the previous point, Missner's account suggests that there is an important element of contingency in the process by which even indisputably great people become famous. The "canon of great names" may appear "like a canopy of fixed and shining stars." n307 But the canon -- literary, scientific, cultural, even athletic -- is in fact a "socially constructed reality," not a "law of nature." n308 While Einstein's fame may now seem to us latecomers to be natural or inevitable, [*189] there was in fact no necessity to it. Things could well have turned out otherwise. Einstein's fame, as Missner shows, was "built on the contingent association of many different factors": n309
The right kind of announcement of his theory's verification occurred; the right sort of phrases were used to describe the theory; the right chords in the public were touched; Einstein came [to America] at the right time, when interest in the theory was beginning to run its course; the right kind of mass demonstrations to attract attention were held (even if they were often directed toward others); Einstein said the right things and had the right kind of appearance and personality; and there was the right kind of group, the American Zionists and the Jewish community in general, to serve as a vanguard. n310
The point here is not to suggest that there is nothing to fame but luck, circumstance, and politics. Nor is it to suggest that there is no "objective" basis upon which Einstein can be judged a greater scientist than, say, the inventors of velcro and teflon. n311 The point, rather, is that Fame does not play fair; it plays favorites. Very wide disparities in fame exist between people (like Einstein and Bohr) whose claims to our attention and esteem are roughly comparable. These wide and seemingly unjustified disparities in fame exist as well in the entertainment and athletic fields, and are usually accompanied there by equally great (and unjustified) disparities in income. "Superstar" athletes, musicians, and screen actors command huge incomes, while performers of only slightly less talent may barely eke out a living. n312
Whether or not the state should undertake, through tax policy or some other way, to redress or offset these disparities in fame and fortune is a large and difficult question. But however that issue is resolved, it seems to me that the state should neither actively compound these disparities nor appear to legitimate them. Yet that, in a way, is the practical effect of the right of publicity. Publicity rights operate to channel additional dollars to the very people -- Einstein rather than Bohr, Vanilla Ice rather than Too Short -- who happen to draw first-prize tickets in the fame lottery.
Third, Missner's account illustrates the crucial role of the news media in the creation of these unjustified disparities in fame. The mainstream press selected Einstein for celebrity, and it chose him in part [*190] because he served the media's own institutional interests: he granted interviews, spoke quotably, had the "right appearance." No doubt the media would have looked elsewhere for a symbol of "scientific genius" had Einstein been dour, taciturn, and unphotogenic.
A similar selection process routinely occurs not only in science and the arts, but also in politics and society, and even in entertainment. The media has its own powerful institutional need for a steady supply of recognizable personalities to enlist audience interest, put across ideas and information, and generate consumption demand for the wares of its advertisers. n313 In the "mass-mediated version of reality," Todd Gitlin observes, almost everything of importance -- social and political movements, organizations, scientific breakthroughs -- must be "reduced to personifications." n314 For the mainstream media, "news" consists of events that can be presented as "drama," and the drama "most easily packaged for everyday consumption" is "the drama of recognizable individuals" -- of regulars, celebrities, stars. n315 The media thus has a "structured need" and "relentless hunger" for celebrities: it needs them, and produces them, in order to carry out its own institutional purposes. n316 Television especially, "with its compulsion to provide visual embodiment to abstraction," desperately needs personalities to "stand for" abstract ideas and developments; it therefore creates celebrities "where there were none." n317
Most importantly, the particular people the media chooses for this purpose tend to be those who best serve its own need to present the world in compellingly dramatic terms. Thus, as Gitlin brilliantly shows, media news coverage of the New Left in the 1960s centered on those of its "leaders" who "most closely matched prefabricated images of what an opposition leader should look and sound like: articulate, theatrical, bombastic." n318 These were people who "enjoyed performance, who knew how to flaunt some symbolic attribute, who spoke quotably." n319 The public actions of Jerry Rubin, Abbie Hoffman, Tom Hayden, Mark Rudd, and Stokely Carmichael made "good copy" because they "generated sensational pictures rich in symbolism." n320
[*191] The media, of course, did not invent these New Left leaders out of whole cloth, any more than the media invented Einstein. People like Rubin, Hoffman, and Hayden "were already leaders in some sense, or the media would not have noticed them." n321 But the media picked them out from a much larger pool of New Left leaders and then "promoted them selectively," n322 just as the media did with Einstein (and did not do with Bohr and Heisenberg). And once the media had made these particular leaders well-known, it continued to cover them because they were well-known.
Fourth, and most importantly for present purposes, Missner's account helps us begin to see what is wrong with the radically individualistic picture of public image formation that dominates the case law and academic writing on the right of publicity. As Missner shows, the particular images of Einstein that were generated and circulated in the early 1920s had little to do with anything we might meaningfully call "labor," or even purposeful effort, on his part. It was the press and the public, working out their own anxieties and concerns, that first created the sinister "Dr. Einstein" and later replaced him with the smiling, violin-playing sage. The media and the public, in other words, first "read" Einstein one way, and then another, entirely for reasons of their own. They made "Einstein" mean what they needed or wanted him to mean. Einstein was certainly a participant of sorts in this signifying process -- during his 1921 visit he clowned for American reporters, posed with his violin, and so on -- but he was not the sole and sovereign author of his public image.
Nowadays, of course, much less is left to chance in these matters. Especially in the entertainment world, the production of fame and image has become more organized, centralized, methodical, even "scientific." n323 The work of "fashioning the star out of the raw material of the person" n324 is done not only by the star herself, but by an army of specialists -- consultants, mentors, coaches, advisors, agents, photographers, and publicists. Much time and effort may be devoted to establishing and maintaining a distinct public image that the celebrity, or her handlers in the "celebrity industry," has chosen for its market appeal. n325 Consider, [*192] for example, the testimony of actor Tony Roberts before the New York Legislature in support of a bill that would create a broad and descendible right of publicity:
How does an actor establish credibility -- or shall we say an identity or an image or a persona by which people know him? The answer is, through a lifetime of correct decisions and choices, or incorrect decisions and choices. . . . [H]e attempts throughout his career to establish an image of himself which offers him the greatest opportunities for advancement in his chosen profession. . . . To this end, one hires personal managers at 15% to advise and screen out the wrong kinds of publicity, personal appearances and so on. Press agents, at great expense, arrange interviews with reputable publications, and arrange appearances on television talk shows, and at award ceremonies. . . . One chooses to endorse certain products, camps, hotels, diets, resorts, etc., or one doesn't. One chooses to be associated with certain causes, benefits, political ideologies or not.
And so, shouldn't this creation which is the result of a life-time of careful nurturing, of scrupulous monitoring and shaping, be enough of a reality to be protected after one's death . . .? n326
There is no reason to doubt that many celebrities attempt to manage the process by which their images are formed in something like the way Roberts describes. The more important and more difficult questions are, first, how well they succeed, and, second, whether and to what extent the law should assist them in these efforts. On the first question, it seems plain to me that the image-formation process resists centralized capture or control more than celebrities would like. A public figure obviously cannot simply pick out a preferred image, like an off-the-rack coat, and make it stick. No matter how long and conscientiously he "labors" to create and maintain a preferred public image, and no matter how adept and shrewd his advisors and handlers are, he cannot make his persona "mean" precisely and solely what he wants it to mean. Richard Dyer explains why:
[*193] A film star's image is not just his or her films, but the promotion of those films and of the star through pin-ups, public appearances, studio hand-outs and so on, as well as interviews, biographies and coverage in the press of the star's doings and "private" life. Further, a star's image is also what people say or write about him or her, as critics or commentators, the way the image is used in other contexts such as advertisements, novels, pop songs, and finally the way the star can become part of the coinage of everyday speech. Jean-Paul Belmondo imitating Humphrey Bogart in A bout de souffle is part of Bogart's image, just as anyone saying, in a mid-European accent, "I want to be alone" reproduces, extends and inflects Greta Garbo's image. n327
However strenuously the star may fight the intertextuality of his image, however "scrupulously" he may try to "monitor" and "shape" it, the media and the public always play a substantial part in the image-making process. n328 True, audiences "cannot make media images mean anything they want to," but they can (and do) "select from the complexity of the image the meanings and feelings, the variations, inflections and contradictions, that work for them." n329 It is not just that the audience, by giving the public figure "cues" as to what it is it "wants" from him, [*194] helps to determine the particular image he seeks to create and project. n330 After all, something of the same sort occurs with the design and marketing of many products. Even a carpenter, for example, will respond to hints and cues from the public as to what kind of chair they want. The crucial difference, however, is that the public participates directly and actively in the meaning-making process, as they do not in the chair-making process. Again, Dyer gets the matter about right:
[T]he agencies of fan magazines and clubs, as well as box office receipts and audience research, mean that the audience's ideas about a star can act back on the media producers of the star's image. This is not an equal to-and-fro -- the audience is more disparate and fragmented, and does not itself produce centralised, massively available media images; but the audience is not wholly controlled by Hollywood and the media, either. In the case, for example, of feminist readings of Monroe (or of John Wayne) or gay male readings of Garland (or Montgomery Clift), what those particular audiences are making of those stars is tantamount to sabotage of what the media industries thought they were doing. n331
The example of Judy Garland, which Dyer develops at some length, is a useful one. In the mainstream culture of the 1940s and 1950s, Judy Garland was just "the girl next door." What she meant for most Americans was normality and ordinariness. That, presumably, was just what MGM wanted "Judy Garland" to mean. (It may also have been, though this is less clear, the meaning that Garland sought for herself.) Dyer shows, however, that after Garland's firing by MGM and her suicide attempt, urban gay men found in Garland's image, particularly her androgyny and her fragile facade of normality, a powerful means of "speaking to each other about themselves." n332 They reworked or recoded Garland in a way that served their own particular subcultural needs and interests. And, what is most important to see, this popular disruption and reorganization of meaning considerably increased the "publicity value" (market value) of Garland's image. The additional, [*195] alternative meanings that were popularly generated created whole new markets for Garland's image -- for Judy Garland impersonators and Judy Garland merchandise -- that would not otherwise have existed.
For instance, Dyer reports that "[i]n 1982, Rockshots, a gay greetings card company, issued a card depicting Garland as Dorothy, in gingham with Toto in a basket, in a gay bar, with her opening line in Oz as the message inside." n333 It is difficult to see how Garland, or MGM for that matter, could assert a plausible moral claim to these particular merchandising values. If these values were the product of something that can be called "labor" at all -- a point that is not free from doubt or difficulty -- had not the relevant labor, the semiotic work, really been done by Garland's gay male "fans" rather than by Garland herself (or MGM)?
A celebrity, in short, does not make her public image, her meaning for others, in anything like the way a carpenter makes a chair from a block of wood. She is not the sole and sovereign "author" of what she means for others. Contingency cannot be entirely erased. The creative (and autonomous) role of the media and the audience in the meaning-making process cannot be excised. n334 To be sure, the precise distribution of semiotic power will vary from case to case, as will the part played by luck and politics. Sometimes, the celebrity herself or persons in her pay seem to perform the lion's share of the meaning-making work; at other times, the work is left to experts in the celebrity industry, for whom the celebrity is little more than "raw material" to be "mined and worked up into" n335 a saleable commodity. Sometimes, the meaning the celebrity (or her sponsors) initially selects and circulates largely resists displacement; at other times, this "preferred meaning" n336 is inflected, subverted, or inverted, either in the culture at large or in a particular subculture, as the celebrity's fans weave their own narratives and create their own fantasies about her. But despite these variations, a celebrity's public image is always the product of a complex social, if not fully democratic, process in which the "labor" (time, money, effort) of the celebrity herself (and of the celebrity industry, too) is but one ingredient, and not always the main one. The meanings a star image comes to have, and hence the "publicity values" that attach to it, are determined by what different groups and individuals, with different needs and interests, make of it and from it, as they use it to make sense of and construct themselves and the world. [*196] Contrary to the assertion of Professor McCarthy, n337 then, a celebrity like Madonna cannot say of her public image what the carpenter can say of his chair: "I made it." And because she cann