Appropriation and the Right of Publicity
In the final years of the 20th century, individuals find it difficult to live out their lives in isolation. Our culture bristles with computers, databanks, electronic eavesdropping devices, powerful telephoto lenses, and a whole arsenal of high-tech equipment for gathering, storing, and retrieving personal and professional information about us. If all the federal government's databanks were linked up to pool income tax return information with census, Social Security, and other information in the files, it would be quick and easy to compile a dossier of an estimated 20 pages or more on every man, woman, and child in America, and no record would take more than a few seconds to locate. Commercial databanks possess salary, employment, credit, home mortgage, medical insurance, and other personal information that may be even more sensitive. The ever-present mass media are capable of disseminating a great deal of information about us, including our physical likenesses, although we may urgently wish them not to do so.
Although only a fraction of today's invasions of privacy concern advertising and the mass media, it was the unrestrained, sensational press coverage of a century ago that prompted legal scholars to advocate our first privacy laws. The lurid era of yellow journalism found reporters prying feverishly into the personal affairs of the rich and famous. An aristocratic Boston lawyer and businessman, Samuel Warren, was particularly offended by what he regarded as steamy, voracious press attention paid to the forthcoming wedding of his daughter. 1 Because no remedies were available under existing law to deal with such journalistic excesses, Warren declared that a different approach was needed. In collaboration with his former law partner, Louis Brandeis, Warren pounded out an angry, sweeping article for the Harvard Law Review. They proposed that the legal system recognize a new principle, which they described as an individual's right to privacy: