Engelberg Center mark Engelberg Center on Innovation Law & Policy Corpus

The Right of Publicity: A New Framework for Regulating Facial Recognition

Jason M. Schultz
Articles
Cases discussed: No Doubt v. Activision Publ'g, Inc. · Eastwood v. Sup. Ct. · Haelan Labs., Inc. v. Topps Chewing Gum, Inc. · Kirby v. Sega of Am., Inc.
"The Right of Publicity: A New Framework for Regulating Facial Recognition," 88 Brook. L. Rev. 1039 (2023)
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scour or "scrape" online networks, or in some cases, are provided by the owners of the networks themselves. Direct informed consent is rarely, if ever, sought for such uses. Instead, automated software routinely extracts an individual's visual likeness from these photos, translates it into data (often in the form of one's facial geometry, sometimes called a "vector" or "faceprint'), and then uses that data to train FR machinelearning systems.'¢ Yet mass appropriation techniques were not always the default approach. In the early days of FR development, most images for datasets were compiled either through photoshoots, with full informed consent of participants, or through acquisition of government-provided "mugshots."!7 This was the case even in the nascent stages of FR system development in the 1960s; though these early versions of FR were not automated or nearly as powerful as today's technology-they still depended on the appropriation of individual images and likenesses. Despite this consistent need for images, the process for gathering these images was entirely different. For example, when creating one of the first foundational FR systems in 1968, Woody Bledsoe, a pioneer in artificial intelligence, used photos of men who agreed to have their photos taken by him and his research team.!* The same was true for the FERET program, another early 383, 389 (1960);Fairfield v. Am. Photocopy Equip. Co., 291 P.2d 194, 197 (Cal. Ct. App. 1955) (explaining that "[o]ne concept of the right of privacy is the right of a person to be free from unauthorized and unwarranted publicity'); see also SARAH E. IGO, THE KNOWN CITIZEN 34 (2018) (noting the ROP emerged as a response to "the potent trinity of press, photography, and publicity in the late nineteenth century'). [Vol. 88:4 public eye, but who were then later exposed via new media.?! Yet even from these origins, the ROP was more than a "right 'to be let Finally, there is the output of the FR system. When a "match" is made, FR systems will typically output an official image and identification of the likely subject. The display of these images and associated information not only relies on the uses identified above but also constitutes its own independent use as an output for consumption by the FR system customer.

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Customers purchase FR systems for these outputs, so without them, the entire commercial value of the system would be dramatically diminished.*' Thus, such outputs constitute a third violation of individuals' ROP. . This would also address some of the concerns about the ongoing harm of FR systems, as each "search" would constitute an additional ROP violation, whether or not the search produced a particular individual's image as the result, given that any target image would need to be checked against all known (and appropriated) identities to ensure the "accuracy" that companies like Clearview AI promise to their customers.

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87 Oddly, some courts have suggested that the ROP does not apply to uses of likenesses where the likeness itself is or is a part of the product, rather than an advertisement for a product. See Brooks v.

2023] THE RIGHT OF PUBLICITY 1057

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The commercial advantages of mass image appropriation are also influenced by the network effects of the image database in which they reside. Companies like Clearview have made explicit their intention to have multiple photos of every single person in the world in their database in order to improve the accuracy of their system. Much as having a complete collection of images and identities for sports stars in trading card sets or as avatars in videogame rosters adds to the holistic commercial value of those products, the addition of any single photo or face to an FR system adds value in terms of alleged accuracy, , 815 F. Supp. 2d 1108, 1113(C.D. Cal. 2011), aff'd, 489 F. App'x 155 (9th Cir. 2012) (citing Newton v. Thomason, 22 F.3d 1455, 1461(9th Cir. 1994)).

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103 Td. at 1114. 104 See Cohen v. Facebook, Inc., 798 F. Supp.2d 1090, 1096(N.D. Cal. 2011) (holding that users did not consent to the use of their identity for commercial purposes using Facebook's "Friend Finder" service because the terms of service were too ambiguous to find specific consent). where in order to send invitation emails to their users' contacts, LinkedIn gathered explicit consent to collect user's Gmail contacts, showed users matches between their contacts and all LinkedIn users, and then asked users to "invite some people" 109 Jd. at 1215 (finding that LinkedIn's disclosures were "clear enough to alert

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[p]laintiffs" of the ensuing use of their names, and that a reasonable person who saw such disclosures and continued was consenting to the emails).

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110 See Mark A. Lemley, Terms of Use, 91 MINN. L. REV. 459, 463 (2006).

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111 See No Doubt v. Activision Publ'g, Inc., 122 Cal. Rptr. 3d 397 (Ct. App. 2011).

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3 Special thanks to Jessica Silbey for this insight and connection.

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14 Moore v. Regents of Univ. of Cal., 793 P.2d 479, 480-81 (Cal. 1990). 20 See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1103(1992) 142 Id. at 574; see also ROTHMAN,supra note 11, others could broadcast an entire play, boxing match, song, or symphony without permission" under the pretext of news reporting.'43 One justice went so far as to state at oral argument that the issue was "reproduction" rather than "reporting."!4

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While plays, songs, and symphonies would also be covered by uncopyrightable "hot news" information by wire services using new transmission technology to be illegal); Shyamkrishna Balganesh, "Hot News": The Enduring Myth of Property in News, 111 COLUM. L. REV. 419, 442 (2011). 47 Pora v. Frontline Video, Inc., 18 Cal. Rptr. 2d 790, 792 (Ct. App. 1993) (holding that the makers of a state history documentary featuring a noncelebrity , Inc., 989 F.2d 1512, 1513(9th Cir. 1993) (denial of petition for rehearing and rejection of suggestion for rehearing en banc) (Kozinski, J., dissenting) ("Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.

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Overprotection stifles the very creative forces it's supposed to nurture.").

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149 Haelan Lab'ys, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953).

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150 Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307, 314 (Ct. App. 2001).

Footnotes

(2019). 26 See Selinger & Hartzog, supra note 25, at 111; Dave Gershgorn, Is There Any Way Out of Clearview's Facial Recognition Database?, VERGE (June 9, 2021, 10:30 AM), https://www.theverge.com/22522486/clearview-ai-facial-recognition-avoid-escapeprivacy [https://perma.cc/34SP-NB2Z].
No Doubt v. Activision Publ'g, 122 Cal. Rptr. 3d 397, 401-06, 412, 415 (Ct. App. 2011).
distribution, to create twenty-five thousand copies of that likeness on paper.*® Had an individual artist hand drawn Abigail Roberson's face on individual pamphlets, she still may have sued, but the scale of the harm and the level of concern among legal scholars and policymakers would have been dramatically different. That difference, in part, helped motivate the New York Legislature to codify the ROP as part of its privacy law in 1904, following Roberson's loss on appeal.*¢ Pavesich's case also involved innovation in visual appropriation technologies. There, the plaintiff sat for a portrait photograph in a commercial studio in downtown Atlanta.°' Afterwards, the photographer surreptitiously sold the negative of the photo to an agent for the New England Life Insurance Company, who used it to print a photograph for the company's newspaper ad.** Such reuse of a photographic negative was quite novel for 1905. While the first negative was invented by French scientist Nicéphore Niépce in 1826,°° until the 1870s, most 39 Niépce and the Invention of Photography, MASON NICEPHORE NIEPCE, https://photo-museum.org/niepce-invention-photography/ [https://perma.cc/W34W-6UZY]. publicity is abhorrent." (quoting The Right of Privacy, N.Y. TIMES, Apr. 23, 1905, at 8) (alteration in original)). Thus, even in 1905, commentators were linking the need for a distribute films nationwide grew rapidly, the supply of stories and scripts lagged behind.** Film producers such as Reid looked to other media, such as newspapers or court records, for sources that too often were ultimately appropriated and exploited. Hence, when Reid found the news story about Melvin, it provided the content she needed to help meet Hollywood's insatiable demand.*" These new capacities for exploitation, brought about by advances in the technologies of the day, played a significant role in the rise of the ROP claims filed at the time. Since then, the television, video games, and even baseball cards.58 In each case, the development of these new technologies changed and challenged an individual's ability to control how their identity could be used, and the ROP responded. ML's current hunger for data has been growing for decades, with image data driving and magnifying the growth of strong ROP to the "unprecedented development" of technologies that could accelerate and intensify the appropriation of individual likenesses. 54 Melvin v. Reid, 297 P. 91, 91 (Cal. Ct. App. 1931). 55 DOUGLAS GOMERY, THE HOLLYWOOD STUDIO SYSTEM: A HISTORY 25 (20085). 56 See BARBAS, supra note 35, at 97-98. 57 See Melville B. Nimmer, The Right of Publicity, 19 LAW & CONTEMP. PROBS. 203,204-06 (1954) (explaining how the ROP failed to keep up with "tremendous strides" in technological advancements during the rapid expansion of the advertising, television, film, and radio industries); O'Brien v. Pabst Sales Co., 124 F.2d 167 (5th Cir. 1941); see also ROTHMAN, supra note 11, at 68-71 (discussing the film industry's influence on ROP development).58See, e.g., Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953) (holding that the ROP applies to images of baseball players included as novelty gifts in chewing gum); Zacchini v.Scripps-Howard Broad. Co., 433 U.S. 562, 578- 79 (1977) (holding that ROP applies to a news broadcast of a performance); Eastwood v.Super. Ct., 198 Cal. Rptr. 342, 347 (Ct. App. 1983) (holding that the ROP applies to periodical covers and telecasts); Keller v. Elec. Arts Inc., 724 F.3d 1268, 1279 (9th Cir. 2012) (holding that the ROP applies to likenesses used as video game avatars). helped discipline by imposing liability where commercial actors are tempted to do an end-run around consent of the individuals they exploit. III. THE ROP FRAMEWORK FOR REGULATING FR ROP claims vary from state to state and between their common law form and statutory implementations. However, most can be distilled down to the following elements: (1) "the defendant's use of the plaintiff's identity[,| (2) the appropriation of' that identity to the defendant's advantage, "(3) lack of consent[,] and (4) resulting injury."6' While some states and statutes limit the scope of actionable exploitation to particular advantages, such as advertising, many have expansive concepts of "commercial misappropriation," such as in California, or "for the purposes of trade" in Virginia and New York.® A. Three Ways that FR Uses an Individual's Likeness or Identity For the first ROP element to be satisfied, courts must find that FR systems "use" an individual's likeness or identity. This can occur in at least three distinct ways: (1) the use of one's image to train a FR system, (2) the association of one's image with one's identity within the FR systems, and (8) display of 59 See CRAWFORD, supra note 1, at 96. 60 Id. at 95; see also MARY L. GRAY & SIDDHARTH SURI, GHOST WORK: HOW TO STOP SILICON VALLEY FROM BUILDING A NEW GLOBAL UNDERCLASS (2019). 61 See, e.g., Stewart v. Rolling Stone LLC, 105 Cal. Rptr. 3d 98, 111 (Ct. App. 2010), as modified on denial of reh'g (Feb. 24, 2010) (quoting Eastwood v. Sup. Ct., 198 Cal. Rptr. 342, 347 (Ct. App. 1983); Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998); see also In re Clearview AI, Inc. Consumer Priv. Litig., 585 F. Supp. 3d 1111, 1127-30 (N.D. Ill. 2022), *23-33 (comparing Virginia, California, and New York ROP common law and statutory ROP claims against Clearview Al). 62 ROTHMAN, supra note 11, at 25; In re Clearview AI, Inc. Consumer Priv. Litig., 585 F. Supp. 3d at 1127-380. *? Without prior images, FR systems would not exist. Traditionally, ROP claims are predicated on uses that are visually apparent to human eyes, such as appearing 1n advertising, newspapers, on television and in movies, or as avatars in video games. The "publicity" of the person has typically been conceptualized with a human public as the audience. Yet, as algorithmic systems become more prominent and powerful agents in our society, the law has moved quickly to recognize that the actions such systems take on behalf of those who build or buy them can have as much of an impact on legal rights as human actors. So just as a company might "use" an individual's image to train internal human personnel (such as security guards or customer service representatives) to recognize that individual at a later time or place, the use of individuals' images to train algorithmic systems for similar purposes can be treated similarly in a ROP analysis. This approach is supported by the Restatement of the Law of Unfair Competition, which defines "for purposes of trade" to include uses that appear "in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user." https://ainowinstitute.org/litigatingalgorithms-2019-us.pdf [https://perma.cc/9LP2-STXA]; see generally Crawford & Schultz, supra note 9 (arguing that courts should adopt a form of state action doctrine that would apply to vendors of AI systems that make governmental decisions). 65 See RESTATEMENT (THIRD) OF THE LAW OF UNFAIR COMPETITION § 47 (AM. L. INST. 1995) (emphasis added). [Vol. 2. Association of One's Image with One's Identity" The next category of use is also one traditionally associated with ROP claims, albeit again traditionally with human audiences in mind. FR systems are built on the premise that previously unseen images can be identified and then associated with a known individual's identity. Similarly, ROP claims have not only been successfully brought against the nonconsensual use of images but of identities as well-even identities where the individual's name or image is entirely absent from the ultimate moment of identification. For example, almost twenty years ago, the Ninth Circuit held that Samsung violated Wheel of Fortune host Vanna White's ROP when it displayed an image of a robot with her uniquely identifying 66 T.S. Huang, Computer Vision: Evolution and Progress, in 19 CERN SCH. OF COMPUT., PROCEEDINGS (C.E. Vandoni ed., 1996), https://eds.cern.ch/record/300250 [https://perma.cc/E4KP-JJAW]. (discussing the challenges of new technologies to the term "use"); Stacey L. Dogan & Mark A. Lemley, Grounding Trademark Law Through Trademark Use, 92 IOWA L. REV.1669 (2016) (responding to Dinwoodie & Janis' discussion). 71 See generally Zahra Takhshid, Data as Likeness, GEO. L.J. (forthcoming 2023) (arguing that an individual's personal data is an aspect of that person's unique digital identity and thus covered by the tort of appropriation of likeness). "Vanna White dresses like this, turns letters, and does this on the Wheel of Fortune game show. She is the only one." In other words, it was the fact that Samsung had used White's unique identifying characteristics for commercial benefit that triggered the ROP violation. Yet despite this thirty-year precedent recognizing the protected nature of such characteristics, FR companies use unique identifying characteristics of an individual's face or likeness-through faceprints or facial geometry templates in their datasets-to identify individuals for commercial benefit."Identity is so protected that appropriation can even be established through one's association with objects. For example, in Motschenbacher v. R.J. Reynolds Tobacco, the Ninth Circuit held that a television commercial using a photograph of the plaintiff driving a racecar was a violation of his ROP, even though neither the plaintiff's face nor physical features were visible in the photograph.' Because the racecar was uniquely associated with Lothar Motschenbacher, a famous professional race car driver, the use of the car's photo was sufficient to publicity.Wendt v. Host Int'l, Inc., 125 F.3d 806, 809-10 (9th Cir. 1997). Both White and Wendt support a broad ROP to prevent the appropriation of one's identity even without a display of actual visual likenesses. Further still, both support the contention that the mere fact that a representation is recognizably identifiable with a specific individual is enough to substantiate a ROP claim. 78 Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 827 (9th Cir. 1974). violated Midler's ROP and her autonomy in controlling how qualities uniquely associated with her were exploited. Again, it was the identifiability of the individual that the court found central to the actionability of the ROP claim. Since then, other courts have followed this logic. The Central District of California in Brophy v. Almanzar held that the displaying of an individual's "unique and distinctive" back tattoo qualified as use of his identity even though his name and face were never shown.* In Winter v. DC Comics, the California Supreme Court held that even though their names and faces were changed, comic book characters with long white hair, albino features, and distinctive hats were similar enough to plaintiffs to show a prima facie case of appropriation.*! In Kirby v. Sega of America, Inc., the lead singer of the 1990s retro-funk band "Deee-Lite" sued videogame maker Sega for appropriating her "unique public identity" as part of a character from an alien invasion dance game.® In affirming that there were triable issues of fact as to identity appropriation, the court found that the videogame character's 81 Winter v. DC Comics, 69 P.3d 473, 477-79 (Cal. 2003) (sustaining prima facie case of appropriation of identity but remanding back to trial court on question of whether comic books at issue were entitled to First Amendment protection under the Comedy III test for transformation). 82 Kirby v. Sega of Am., 50 Cal. Rptr. 3d 607, 609-12 (Ct. App. 2006). 83 Kirby v. Sega of Am., Inc., 50 Cal. Rptr. 3d 607, 613 (2006). 3. Display of One's Image or Retrieval of One's Identity in Response to a Request for Matching