Image Rights as a means of Identity Protection

Identity is not merely a set of facts: name, location, employment, position, age, gender, or merely certain online behaviours. Some part of identity is controlled by the individual, but most of identity is created by the world in which that individual operates. We can think of identity as a streaming picture of a life within a particular context. Each of us has multiple identities (Clarke, 1994). The role of groups in shaping ‘real life’ identities is implicit, as is the multiplicity of ‘real life’ identity. Our online lives demonstrate this point. As such, each discreet identity needs protection from the new threats that arise from new technologies.

The Bailiwick of Guernsey’s new Image Rights Ordinance has numerous benefits which can protect an identity both as an individual and as a group. Any person, be they a natural person or a legal entity, can register their personality as a unique and exploitable asset. Moreover, the term ‘personality’ includes fictional personalities or the personalities of persons who have died within the last 100 years. It also permits joint and group registrations. Accordingly, Walt Disney Studios, for example, could choose to register Mickey Mouse as a personality, or the estate of Albert Einstein could choose to register Einstein’s personality. The registration of a personality immediately captures all present, historic and future images associated with that personality. In the context of the law, ‘image’ is framed extremely widely and means the name of the person and includes:

“…the voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, and any other distinctive characteristic or personal attribute of a personage, or…

…any photograph, illustration, image, picture, moving image or electronic of other representation (‘picture’) of a personage and of no other person …” (IRO, s 3(1)(b) and (c)).

“Identity is used to mean ‘the condition of being a specified person’, or ‘the condition of being oneself … and not another’. It clusters with the terms ‘personality’, ‘individuality’ and ‘individualism’, and, less fashionably, ‘soul’. It implies the existence for each person of private space or personal lebensraum, in which one’s attitudes and actions can define one’s self … The dictionary definitions miss [this] vital aspect.” (Clarke, 1994) The Bailiwick of Guernsey did not.

An autonomy-based theory of identity protection incorporates the important insight that some forms of property are more essential to personhood than others (Radin, 1982). Moreover, property in persona – ‘the inherent right of every human being to control the commercial use of his or her Identity’ – deserves a particular form of protection in our legal system (McCarthy, 2007). The current U.S. theory of the right of publicity is as a traditional intellectual property right (Westfall & Landau, 2005). If one focuses on individual autonomy, then the inclusion of both the personal and purely economic elements of the right can be included. This, then, enables a particular form of intellectual property, incorporating a ‘sui generis mixture of personal rights, property rights, and rights under the law of unfair competition.’(Hoffman, 1980)

In The Presentation of Self in Everyday Life, the concept of identity as a series of performances in which ‘impression management’ was used to portray ourselves appropriately in different environments was suggested (Goffman, 1959). “The origin of the term [identity] implies equality or ‘one-ness’, but identities are no longer rationed to one per physiological specimen. A person may adopt different identities at various times during a life-span, and most individuals maintain several at once. Nor are such multiple roles illegal or even used primarily for illegal purposes.” (Clarke, 1994)

“The junction of the new and the old is not a mere composition of forces, but is a recreation in which the present impulsion gets form and solidity while the old, the ‘stored,’ material is literally revived, given new life and soul through having to meet the new situation. It is this double change that converts an activity into an act of expression. Things in the environment that would otherwise be mere smooth channels or else blind obstructions become means, media. At the same time, things retained from the past experience that would grow stale from routine or inert from lack of use, become coefficients in new adventures and put on raiment of fresh meaning. Here are all the elements needed to define expression.” (Dewey, 1980)

Dewey’s view is that both the subjects our minds engage and what we do with those subjects are the results of personal experience being reworked in the present tense. Because each of us is a unique experiential time line, whatever we produce constitutes personal expression (Ibid). Each of us is a unique order of experiences and each new creation might somehow be predictable and mechanical while staying beautiful and unique (Ibid).

In conclusion, if the identity concerned, whether it is human or non-human, fictional or non-fictional, is capable of expressing something unique by any means, it can be protected as a ‘personality’ and ‘registered image’ under the law. Moreover, as registered, protected intellectual property, a registered image (or the entire registered personality) can be sold or licensed for the authorized use by others recognizing the value that was hitherto difficult to clearly define and capture.

References:
• The Image Rights (Bailiwick of Guernsey) Ordinance 2012.
• Clarke, R.A. (1994) Human identification in information systems: management challenges and public policy issues, 7 Information Tech. & People, Vol. 4, pp.6–37, http://www.anu .edu.au/people/Roger.Clarke/DV/HumanID.html.
• Dewey, J. (1980) Art as Experience, New York: Perigee Books.
• Goffman, E. (1959) The Presentation of Self in Everyday Life, New York: Basic Books.
• Hoffman, S.J. (1980) Limitations on the Right of Publicity, 28 Bull. Copyright Soc’y 111, 112.
• McCarthy, J.T. (2007) The Rights of Publicity and Privacy (2d ed) § 1:26, New York: Thomson.
• Radin, M.J. (1982) Property and Personhood, 34 Stan. L. Rev. 957.
• Westfall, D. & Landau, D. (2005) Publicity Rights as Property Rights, 23 Cardozo Arts & Ent. L.J. 71.

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