"Public image laws" in the U.S. belie an image-obsessed cultural sensibility.
After receiving calls from her neighbors, a woman found that her daughter’s picture had been used in an ad for a local ice cream store, without the daughter’s or the mother’s consent. Her daughter had simply “liked” the ice cream store on Facebook. The woman was outraged and embarrassed. People across the country whose photographs had been similarly exploited under Facebook’s Sponsored Stories advertising program sued Facebook.
In the past hundred years, in increasing numbers, Americans have turned to the law to help them defend and control their public images.
In 1948, the Saturday Evening Post ran a critique of cabdrivers in Washington, D.C., that accused them of cheating their customers. A photograph appeared with the article that depicted a woman cabdriver, Muriel Peay, talking to the article’s author on the street. The caption did not name her, and the article did not refer to her. Although the woman had consented to be photographed, she did not know that the picture would be used in an article on cheating cabbies. She was humiliated, and she sued the magazine.
In the early 1940s, Zelma Cason, who was the inspiration for a character in a book by a famous writer, sued the author. The portrayal of Cason was highly complimentary, although in one part of the book the author described her as an “ageless spinster resembling an angry and efficient canary” and noted that she used profanity. Cason was upset, and she sought damages of one hundred thousand dollars.
Angry and insulted, these people could have done any number of things. On seeing her picture in the Saturday Evening Post, Muriel Peay could have gone home and cried. Perhaps she did. The unwilling subjects of the Sponsored Stories program could have boycotted Facebook—perhaps they did, too. But these individuals also chose to sue. In the past hundred years, in increasing numbers, Americans have turned to the law to help them defend and control their public images. The twentieth century saw the creation of a law of public image, and the phenomenon of personal image litigation.
Under these laws of image, you can sue if you’ve been depicted in an embarrassing manner, even if no one thinks less of you for it. If a newspaper or website publishes your picture in a way you find offensive, you can, under certain circumstances, receive monetary damages for your sense of affront—for the outrage that someone has taken liberties with your public image and interfered with the way you want to be known to others. The laws of image protect the right to control one’s public image, to defend one’s image, and to feel good about one’s image and public presentation of self.
If a newspaper or website publishes your picture in a way you find offensive, you can, under certain circumstances, receive monetary damages for your sense of affront—for the outrage that someone has taken liberties with your public image.
Why does the law in the United States acknowledge rights to control one’s public image? Why does the American legal system permit recovery for tarnished images and hurt feelings? Why have so many mobilized the law to defend their public images?
The story begins in urban America in the late nineteenth century, a time of profound social, cultural, and technological transformation. In contrast to small towns, where people knew each other intimately, newcomers to the burgeoning cities found themselves strangers, often known to each other only as superficial images: through newspaper stories, photographs, quick glances on the street. Urban dwellers began to conceptualize their social identities in terms of images and surface appearances, and sought to make positive first impressions on others through careful manipulation of their looks and behavior.
They also became sensitive to threats to their public images, particularly from the new mass-market press. Beginning in the 1880s, in what would become a long and venerable tradition, the popular press began to trade in “gossip” and other intimate accounts of personal life. The press was becoming an industry of counterimage, devoted to undermining people’s public images and social façades. In unprecedented numbers, the subjects of undesirable media coverage sued the press for libel, the law’s traditional, age-old remedy for injuries to reputation.
The tort of libel dealt with false statements that lowered one’s standing among one’s peers, statements that caused a person to be scorned or shunned by his community. Libel did not always adequately address the problem of media gossip—the publication of facts that were often true, and that did not necessarily injure one’s reputation, but nonetheless caused humiliation and distress. In many cases, the subjects of gossip were upset not only by the embarrassing depictions, but even more by the fact that they had lost control of their images, that the media had taken from them their prerogative to determine how they would be known to the world.
The search for legal remedies for the gossip problem led to the invention of the “right to privacy.” Proposed in 1890, the right to privacy was a right to not have one’s picture or personal information displayed to the public against one’s will, in a humiliating or upsetting manner. Long before it offered protection against unauthorized data collection, government spying, or intrusions into one’s private space, the right to privacy was the right to control one’s public image, and to be compensated for emotional distress when the media interfered with one’s own, desired public persona. The right to privacy was an expression of the nation’s nascent image-conscious sensibility.
By the mid-twentieth century, a legally enforceable right to privacy had been accepted in most American jurisdictions. It was part of a larger body of "image law" that had come into being, as courts and legislatures sought to give people greater control and protection of their public images in an age of proliferating mass communications. Plaintiffs could bring suit under the new tort of intentional infliction of emotional distress to compensate their hurt feelings when they were publicly depicted in an embarrassing fashion. Statutes imposed liability for the use of people’s visual images without consent. In a historic shift, libel law was expanding to remedy not only harms to reputation but injuries to one’s feelings when the media portrayed a person in a manner he found upsetting, even if the depiction was benign in others’ eyes. The volume of lawsuits brought under these image torts rose steadily, and personal image litigation became a fixture of the legal landscape. Courts and commentators described the ability to control one’s public image as an important personal right, linked to cultural ideals of freedom and self-determination.
The rise of these image torts and personal image litigation tracked mounting concerns with images, social appearances, and self-presentation in public. By the postwar era, cultural forces such as advertising, celebrity, the fashion industry, and popular psychology encouraged people to view their public images as the expression and summation of their inner selves. Controlling and perfecting one’s public image was described as the key to personal, social, and material success.
Critics observed an “other-directed” self—a personality type consumed with one’s image and the act of constructing a pleasing public façade. By the 1990s, plastic surgeons, personal image consultants, and “reputation managers” were in high demand in a world where, to quote a 1990 ad campaign, “image is everything.” In recognizing injuries to public image as worthy of legal attention, and in some cases monetary judgments, the law contributed to the cultural focus on images and the construction of the modern image-conscious self.
The laws of image that have emerged in the last century are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their public images, to manage and spin them like actors, politicians, and rock stars. And yet, American laws do not protect the right to one’s public image and persona as extensively as in other parts of the world. In a culture where images have been the currency of social exchange, where politics and social life have been mediated by images, the ability to freely disseminate images of people and public affairs has been linked to “free and robust” public debate and discussion, often described as one of the core values of the First Amendment.
Expressive freedom in the United States has come to embody two competing ideals. It means the freedom to express oneself through one’s public image—to create and define one’s own public persona and social identity. At the same time, it is the freedom to make and distribute images of other people, even if caustic, embarrassing, or unflattering. The tension between these competing freedoms is a central theme in the history of the laws of image. We want to control our own images, yet we want to be able to tear down other people’s images, freely and without restriction.
This post was adapted from Laws of Image: Privacy and Publicity in America by Samantha Barbas.
Samantha Barbas is Associate Professor of Law at SUNY Buffalo Law School. She is the author of multiple books, including Movie Crazy: Fans, Stars, and the Cult of Celebrity (Palgrave Macmillan, 2002), The First Lady of Hollywood: A Biography of Louella Parsons (University of California Press, 2006), and, most recently, Laws of Image: Privacy and Publicity in America.
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