Friday, October 30, 2015

The Law and Personal Image Into the Digital Age

By the 1970s, the basic doctrines of the tort "laws of image" had been established, as had American culture's "image-conscious sensibility." As I suggest in Laws of Image: Privacy and Publicity in America, the twentieth century witnessed the rise of a cultural outlook in which the self is conceptualized in terms of images. Influenced by a variety of forces, from the visual media to celebrity culture to the mobile and fluid conditions of urban life, Americans became aware of having public images, and being images: one's identity was embedded, at least in part, in the image or persona one strategically constructed and presented to others. In a world of crowds, surfaces, and distant and impersonal social relations, the ability to perfect and manage one's image came to be regarded as critical to social mobility, public recognition, and material success. In the individualistic culture of postwar America, it also became integral to ideals of personal liberation and psychological and emotional health. Individuals from a variety of backgrounds and circumstances asserted that they owned their images, that they had a right to control their images, and that this prerogative was critical to their ability to live and function as free and self-determining individuals. The law responded and contributed to this focus on images and the image-conscious self.
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The historical trends I write about in Laws of Image continue today. In our culture of instant celebrity, of blogs, smartphones, and webcams, we want to reveal ourselves, to create public images, to proclaim ourselves to the world, and we have the means to do it. But -- as ever -- we seem to want publicity on our own terms. 

Back in the early 2000s, a high school student wrote a critical poem about her hometown and posted it on her MySpace web page. Her school principal saw it and submitted it to the local newspaper, where it was published. The student sued the newspaper for invasion of privacy. She claimed that she intended the poem to be read only by her MySpace friends, and that even though she posted the poem online, publishing it in the newspaper invaded her privacy and caused her emotional distress. 

How is it that people can willingly post personal information online, then complain when someone else presents that same information in another, albeit displeasing context? This is the dynamic I describe in Laws of Image: people want to expose themselves to the public -- to create a public image, a visible public persona and presence -- yet at the same time to manage and control those images. And this is, in part, what "privacy" has come to mean in the online world: a right to control the contexts and circumstances of our self-publicity.

Thanks to the Legal History Blog! 

1 comment:

Shag from Brookline said...

I have enjoyed immensely this series of posts. Back in the early 1960s here in MA as I was developing my law practice, I became interested the Right of Privacy because of a concern of a client. (I shall not go into detail on the facts and the client's concerns.) At the time, the Right of Privacy was not recognized in MA or in most other states. I did locate a book on the subject that included excerpts from various cases and articles that addressed such a right. Libel was sometimes an alternative. But the 1st A's speech and press clauses were obstacles to privacy rights. While my law practice became focused upon business, corporations, taxes, I continued over the years and in my now retirement my interest in the Right of Privacy, noting case law and statutory changes. And then "Brands" became the buzzword, including political "Brands" on display with the current presidential campaigning. The 1st A speech and press clauses continue to present some obstacles to the Right of Privacy and "Brands."

Query: Does the Copyright clause present possible protections for the Right of Privacy and "Brands"?

Thank you for your posts.