Barbas on the Tort of Appropriation of Identity, 1900-50

From Privacy to Publicity: The Tort of Appropriation in the Age of Mass Consumption, by Samantha Barbas, SUNY Buffalo Law School, is out in the Buffalo Law Review 61 (2013): 1119-89.  Here is the abstract:

Around 1900, states began to recognize a tort of “commercial appropriation of identity,” a branch of the tort of invasion of privacy. Under the appropriation tort, a person whose image or identity had been used in an advertisement without consent could recover damages for dignitary and emotional harms. In the middle of the 20th century, the tort underwent a fundamental shift. Courts reoriented the tort so that it no longer exclusively protected a person’s interest in dignity or “privacy,” but rather the pecuniary interest in the commercial exploitation of one’s identity, or one’s “right of publicity.”

No one disputes that this change occurred. Why it happened has yet to be explained. In this article, I explain appropriation’s transformation from a dignity-based “right of privacy” to a profit-oriented “right of publicity” as a consequence of changing social attitudes towards advertising and mass consumption. At the turn of the 20th century, when frugality, modesty, and self-restraint were prevailing middle-class values, mass consumption and product advertising were widely associated with moral corruption and decay. Insofar as it associated a person with the "taint of commerce," appropriating someone's image and displaying it in an ad without consent subjected that person to public scorn and injured his or her dignity, reputation, and sense of self.

By the 1950s, advertising and mass consumption had been resignified in the popular imagination. In the consumer culture and celebrity culture that America had become, buying consumer goods and being publicly associated with products were no longer viewed as disreputable acts but as potentially desirable and prestigious. The commercialization of personal identity took on an aura of glamour and status. The “right of publicity” eclipsed the “right of privacy” when modern consumer culture came to see loss of profit as the real injury to be had from the unauthorized commercial use of one’s image, rather than harm to one's dignity or reputation.