Log onto the Internet and take a look. Without much effort you can find voter registration records; birth certificates; marriage certificates; death certificates; county assessor tax roles; and much, much more. Quite recently, the City of New York posted the names, addresses and social security numbers for 1942 job applicants. The SEC posts social security numbers for some of the wealthiest people on the planet. 

		This information can be used by journalists, family genealogists, the police, as well as identity thieves, and terrorists.

This information can be used by journalists, family genealogists, the police, as well as identity thieves, terrorists -- oh yes; it can also be used by your ex-spouse?s private detective, a stalker, and the company that wants to sell you a soft-water unit.

We need a vigorous debate as to whether this is a good thing. Certainly, we want the police to quickly track down the latest murderer. But do we want the identity thief to know our mother?s maiden name? Until the government decides to do something -- anything -- about this issue, the only real option for private plaintiffs is a claim for infringement upon one's right of publicity.

We start this debate by focusing on the development of the law in California. With its substantial ties to the entertainment and recording industry, California, in particular, has been pivotal in the nationwide development of the law of publicity. Indeed, it is one of the first states to adopt statutes that award specified damages, punitive damages and attorneys fees for violations. Although it may be a blunt club to stop unwarranted intrusions into your privacy, sometimes a blunt club is precisely what is needed.

The Common Law Right of Privacy

Before the right of publicity evolved (or devolved) into a general-purpose tort -- or civil remedy -- for the celebrity worship industry, there was a tort based upon privacy for the rest of us. That "privacy" tort (really a right to control public dissemination of name and likeness) could be called back into service to respond to dissemination of private data.

To see how an old tort can be taught new tricks, look at the development of that tort. The two most important landmarks along the way will be Mr. Fairfield's photocopier and an Assemblyman's constituent.

In 1955, at the outset of the technology revolution, a California appellate court heard the complaint of Mr. Fairfield. Mr. Fairfield found his name published in a publicly available and distributed document: The American Photo Copy Company listed Mr. Fairfield as a satisfied customer of their product. While Mr. Fairfield had been a former customer, he had not been satisfied. In fact, he had returned his machine.

The appellate court ruled that the trial court committed reversible error by refusing to permit Mr. Fairfield, an attorney, from showing that his right of privacy had been violated. The appellate court based its decision upon the "right of a person to be free from unauthorized and unwarranted publicity." Fairfield v. American Photocopy Equipment Co., 138 Cal.App.2d 82, 86,  291 P.2d 194, 197 (1955).

		While I agreed to permit the government to keep a record of my birth, I never agreed that someone could sell computerized Internet access to my weight at birth.

It seems Mr. Fairfield was particularly hurt when other attorneys saw his name and called to ridicule him. The court looked to Mr. Fairfield's sore feelings as the basis for awarding damages against American Photocopy: "The gist of the cause of action in a privacy case is not injury to the character or reputation, but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community." Id. p. 86.

The court explained that recovery for injured feelings could result from pleading and proof of an unauthorized advertising use: "It was an unauthorized and unwarranted appropriation of plaintiff's personality as a lawyer for pecuniary gain and profit. The advertising use of plaintiff's name, without his consent, is comprehended within the narrowest definition of the right of privacy." Id. p. 87.  

Over time, the common law right eventually expanded to include non-advertising uses of one's name and likeness. 

Creation of the Statutory Right of Publicity

Some years later, California Assemblyman John Vasconcellos received a complaint from one of his constituents. Computers had just started making their way into mainstream commerce when the constituent received a computerized sweepstakes letter. The letter was sent not only to the constituent, it also went to the constituent's neighbors and surrounding area. The letters listed the names and addresses of the recipient and some neighbors, and indicated that they had all been selected to participate in a sweepstakes contest. See Weinstein, Commercial Appropriation of Name and Likeness, Section 3344 and the Common Law, Los Angeles B.J. 430, 432 (March 1977).

The Assemblyman did what legislators do when confronted with any problem -- they write a new law. The constituent had a right to sue over the disclosure of his name and likeness as shown by the Fairfield decision. The constituent even had the right to recover for the mental anguish of being associated with a Reader's Digest sweepstakes contest.  What the new law provided was the right to attorney's fees for a prevailing party.

To State a Claim for Infringement of the Right of Publicity

Under California law, and in most states where statutes have been adopted, there are now two torts or remedies based upon the right of publicity which we living commoners can use when we find our name blazoned in public. (A separate tort exists for the famous dead, one of the odd turns of the law. Ironically, I can speak evil of the dead with impunity because the dead cannot be defamed, yet I cannot speak well of the dead lest I trample on their right of publicity.) 

Under California's common law, one may assert a claim for infringement upon the right of publicity by pleading only four elements: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Eastwood v. Superior Court ,149 Cal.App.3d 409 (1983). (Registration Required.)

In addition to the common law right, one may assert a statutory right of publicity claim under Civil Code section 3344, by asserting a common law claim and adding two elements: "The knowing use of the plaintiff's name, photograph of likeness on or in products, merchandise or goods, for purposes of advertising or solicitation of purchases, and that there be a 'direct connection' between the use and the commercial purpose." Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823, 837, (C.D.Cal. 1998)

How Does This Law Relate to the Database Industry?

The names, and other identifying information of individuals can be used for someone else's commercial exploitation. While I agreed to permit the government to keep a record of my birth, I never agreed that someone could sell computerized Internet access to my weight at birth. Without question, the four elements of a common law claim listed above can be met by anyone whose records are available.

The statutory additional elements are also met. A potential tricky point seems to be the statute's requirement that the personal information be contained "on or in products, merchandise or goods." After all, how can a database be a product? 

The quick answer is that a product or merchandise is a tangible item that can be sold.  In MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) the court held that even "loading copyrighted software into RAM creates a 'copy' of that software in violation of the Copyright Act." The court made this determination based upon the statutory definition for a copy being, "material objects, other than phonorecords, in which a work is fixed." 17 U.S.C. '101. Extending this reasoning, it is hard to imagine that computer storage could be anything other than a "material object."

Indeed, computer storage is a material object. You can buy or rent computerized storage space. Electronic storage admittedly involves very small particles of matter -- but it does involve physical property nonetheless. In short, computerized storage is a product, item of merchandise or a good.   

		Ironically, I can speak evil of the dead with impunity because the dead cannot be defamed, yet I cannot speak well of the dead lest I trample on their right of publicity.

The computerized database industry has operated at the periphery for years. Congress has focused its lawmaking efforts at protection of information purposefully disclosed to a private party. For example, the Gramm-Leach-Bliley Act, Pub.L. 106-102, controls the collection and dissemination of information provided to a "financial institution."

As a result, the portion of the database industry that collects, compiles, and disseminates data from government sources seems to operate without legal limitation. The argument on behalf of such use is that the information was "public" when collected and first published and remains "public" with subsequent aggregation and electronic dissemination. Untrue. Even if the government had the right to demand my phone number on an official form, that doesn't give the reseller carte blanche to republish this information commercially. 

Database companies will find little solace in the First Amendment right to free speech. In Comedy III v. Saderup, 25 Cal.4th 387, 399 (2001) the California Supreme Court recognized that the First Amendment's protection for speech is a limit on California's statutes and common law torts affecting speech (a point previously recognized by the Supremacy Clause of the Constitution). The Court then added the incomprehensible element that such speech must be "transformative" to receive First Amendment protection. Id. at p. 405 (This inquiry into whether a work is "transformative" appears to us to be necessarily at the heart of any judicial attempt to square the right of publicity with the First Amendment.). This addendum to the First Amendment has been roundly criticized, primarily upon the ground that no one knows what it means. But for an information database the answer is obvious: there is no transformative use.

It is time to reconsider the database reseller. Just because the information is available in "public records" does not mean they have the right to locate it, compile it, and sell it for a profit.  It is time to recover our privacy. Remember: That birth certificate is mine.

Michael S. Overing teaches Internet Law at the USC Annenberg School for Communication. He is a practicing attorney in Los Angeles County, California. He frequently assists individuals and businesses with Internet and media-related legal issues.

Edward C. Wilde is a practicing attorney and "of counsel" to the Law Offices of Michael S. Overing, A Professional Corporation.  He was lead counsel on behalf of the defendant in Comedy III v. Gary Saderup, the landmark California Supreme Court case interpreting the role of the first amendment and the right of publicity.

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