Article by Eric H. Reiter
As market concerns become increasingly pervasive in today's world, traditionally extrapatrimonial personality rights like the right to one's image are becoming patrimonialized. This creates problems in the civil law, where the notions of person and property have been conceptually distinct since classical Roman law. The author surveys the development of the legal protection of personality in French, German, and Quebec civil law, and contrasts this with the treatment of personality interests in the common law of the United States and Canada. This patrimonialized extrapatrimonial right highlights problems with traditional civil-law categories such as patrimony and real and personal rights.
The author argues that there is an essential tension between privacy-based and property-based conceptions of personality. Conceiving the right to one's image as either a species of extrapatrimonial privacy right or as a kind of patrimonial property right has important implications for exactly what and whom this right protects. In the past, courts tended to treat the right to one's image as strictly extrapatrimonial, particularly in Germany, where there was strong resistance to viewing incorporeals as property. Recently, courts in France, Quebec, and even Germany have begun to recognize that celebrities have a quasi-property right in their image, which is leading to a functional convergence with the right of publicity in American law. This creates the problem of a two-tiered protection of personality. Celebrities enjoy considerable protection for their own commercial exploitation of their real right to their image, while nonfamous individuals are limited to modest moral damages for violation of privacy if their likeness is used without authorization. Doctrinal coherence requires removing commercial aspects of the right to one's image from under the umbrella of privacy, and thus separating the extrapatrimonial and patrimonial sides of the protection of personality.
About the Author
Eric H. Reiter. LL.B. and B.C.L. candidate 2002, McGill University; B.A., Cornell University; M.A., Ph.D., University of Toronto.
Citation
76 Tul. L. Rev. 673 (2002)