The New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of “loser” pen pal that cell phone subscribers could finally “dump.” The girl has sought legal action against the Australian company under a number of theories.
This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I’m most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan “flour of the family.” Although the New York Court of Appeals rejected the young woman’s claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article “The Right to Privacy” was adopted in a variety of related contexts, but this dimension of privacy — the appropriation of likeness for commercial purposes — has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.
Assuming that some version of the appropriation tort is applicable to the Australian company (and that’s a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one – the hurt feelings stemming from the unwanted exposure of one’s likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.
First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it’s no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.
The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce – we will have created (as I argued here) a kind of First Amendment Lochner.
In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.