Sunday, June 04, 2006

Who owns your face?

A thought provoking article showed up in today's Boston Globe talking about the "right of publicity," which is recognized in 28 states. As writer Drake Bennett puts it: "...the right of publicity is not the right to be famous, it's the right to control-and profit from-the commercial uses of one's persona."

While it's fairly established in law that an advertiser can't use your likeness to promote a product without permission, Bennett notes that the estate of Marilyn Monroe could challenge the commercial use of a picture "showing a woman-any woman-in a white dress that's billowing up in a subway grate updraft."

The event giving rise to the article is a suit brought by CBC Distribution and Marketing against Major League Baseball. CBC owns and promotes "fantasy" sports leagues, including baseball leagues. These allow players to "draft" teams from real major league rosters, then conduct play based on the actual statistics and achievements of those players. Major League Baseball contends that the players' names and stats are covered under right of publicity laws. CBC, naturally, disagrees.

It's fascinating to think that the tracking data which commercial enterprises have on me (the so called "bread crumbs" or attention data) could be controlled not by copyright (as some have argued, but is risky when stretched to cover purely factual data) but by the right of publicity - just like the stats of a baseball player, the things I pay attention to, the things I view, define a particular persona which is unique to me. In short, it is an identifier.

But if that data, which uniquely identifies a particular persona associated with me, is under my control, then shouldn't all attribute-value pairs which make up my identity be similarly controlled, at least if the group of attribute-value pairs are sufficient to uniquely identify me within a given namespace?

The right of publicity, the right to control the use of my persona, couples nicely with the right of privacy, the right to not have my data/information published/broadcast/distributed without my knowledge or agreement. It shouldn't really be a question of who "owns" a particular attribute-value pair (social security number, bank account, favorite ice cream flavor, mother's maiden name, etc.) which is part of my identity makeup but of who controls the distribution, the "marketing" as it were, of that data.

I'm not a big fan of Major League Baseball, the enterprise. I think they've done some really serious damage to "America's pastime". But I do hope they win this case, because I do want to control my own persona.

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