Legal Commentary

Teaching Moore v. Regents of California in my Reproductive Technology and Genetics Class this past week reminded me of a side issue I was thinking a lot about when writing my forthcoming article, "The Right Not to Be a Genetic Parent?", but never resolved. Given the large number of IP scholars we have visiting the blog this month, and even more in the readership, this seemed like a good audience to enlist in helping me in my thinking.

It starts with my love of pop culture, and a not-very-successful MTV reality TV show called "I Want a Famous Face". The premise of the show was that MTV would take people who want to look like their favorite celebrity, Brad Pitt in the pilot, and pay for plastic surgery, wardrobe change, etc, and follow the transformation.

Now the "right of publicity" tort might cause a problem for the actual show, see, e.g., Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 127, 206 (1993).  But as I understand the tort as it functions in most states, it makes tortious the unconsented use of a name or likeness by someone famous for commercial purposes.

This got me thinking, what about someone not famous, and the appropriation of a face is not used for commercial purposes? Say, for example, that someone (however ill-advised) wanted to have plastic surgery to transform their face into my face just because they liked it.  And just to purify the example, imagined that the details of my face were acquired without committing some other privacy related tort, so imagine they merely watched me on my way to work and sketched my face and brought it to their plastic surgeon and said "do this" (I don't think the sketching would be tortious, but I am happy to stand corrected if I am wrong).

Would this violate any law? As best I can tell, in most states, no.  Should it?  That turns out to be an even more interesting question. 

A number of the traditional basis for giving individuals a property entitlement to do not seem a good fit here (hence the analogy to the kind of entitlements I was interested in my article and the Moore court is interested in, that court explicitly considered but dismissed an analogy to the right of publicity). 

It is hard to tell a desert story justifying the allocation of the entitlement here.  I have invested no effort in my face giving me a claim here, it is not clear why I "deserve" an entitlement to prevent copying of my face.  The same problem is evident when the theory is framed in economic rather than moral terms, as is familiar in intellectual property discourse, using entitlement as an economic incentive for productive labor.   There is no productive labor to incentive here; your face is not something to invest in or develop.  This is an important distinction from the traditional right of publicity case (e.g., having someone imitate Bette Midler for a car commercial).  The celebrity has invested in their reputation, becoming famous, and the "copier" would be free-riding on that.

One could instead focus on a Lockean self-ownership of the body sort of a story, but putting to one side the familiar critiques of that approach, it seems to me the non-rivalrous nature of copying my face rather than taking part of my body might make a significant difference. From a welfarist point of view, it is possible that the illfare I experience from having someone else have copied my face might be outweighed by the benefit to others if they like my face a large amount, especially if there are many such persons and we are aggregating. 

The most promising basis to ground the pre-theoretical intuition seems to me to be what we might call the "personhood" theory of property.  See, e.g., Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 971-90 (1983); Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 331-50 (1988).  This theory would claim that entitlement not to have one's face duplicated  should be allocated to an individual because that entitlement is inextricably intertwined with her personhood.  Can this claim be sustained as a descriptive matter? I'd experience displeasure, but would I really say that my personhood has been breached? My understanding is that the personhood theory appears to be more on the fringe in IP, does this problem suggest it needs to be more core?

Lots of questions and few answers, but I've been thinking about this and thought others might find it interesting or have some insights....