Whither the Dignity in Commodifying the Self?: The Content of Dignity in USA’s Publicity Rights

In ‘Buying Myself Back: When Does a Model Own her own Image?’, published in New York Magazine‘s The Cut, Emily Ratajkowski narrates a history of men taking possession of her image. (Photo Credits: Victor Boyko/Vogue)

Ruchi Chaudhury

Abstract:

Supermodel and Hollywood actor Emily Ratajkowski’s recent essay detailed her lack of control over the use and curation of her images by men in an image-focused market economy. Ratajkowski wrote, “It seemed strange to me that he or I should have to buy back a picture of myself — especially one I had posted on Instagram, which up until then had felt like the only place where I could control how I present myself to the world, a shrine to my autonomy. If I wanted to see that picture every day, I could just look at my own grid”.

Publicity rights in the USA include the right to sell, transfer and commodify in any manner one’s self image, or name or other likeness that is an indica of personality. Legal rhetoric in the USA stipulates that the assignment of one’s right to publicity is a transaction based on contractual considerations and therefore guarantees compensation for when a person’s celebrity or images are used without their consent or compensation. However, courts in the USA have demonstrated a tendency to not treat the right to publicity as completely alienable or solely economic. Such decisions have directly invoked and relied on ideas like a person’s non-derogable personhood and autonomy as reasons for not allowing buyers of publicity rights to use another’s image as and when they please. This paper argues that although there exists no coherent or agreed upon legal framework on dignity in USA’s publicity rights, a Kantian notion motivates and forms the background which explains judicial decisions on such rights. These appear to use the tort of privacy to bring in dignitarian interests through the backdoor.

INTRODUCTION

Publicity rights in the USA include the right to sell, transfer and commodify in any manner one’s self image, or name or other likeness that is an indica of personality. This right is statutorily and judicially framed as a purely economic one. It is considered akin to property, and severable from the first-holder i.e., the person that alienates a portion of her self-image for consideration. Legal rhetoric in the USA stipulates that the assignment of one’s right to publicity is a transaction based on contractual considerations and therefore guarantees compensation for when a person’s celebrity or images are used without their consent or compensation. However, courts in the USA have demonstrated a tendency to not treat the right to publicity as completely alienable or solely economic. Such decisions have directly invoked and relied on ideas like a person’s non-derogable personhood and autonomy as reasons for not allowing buyers of publicity rights to use another’s image as and when they please. This paper argues that although there exists no coherent or agreed upon legal framework on dignity in USA’s publicity rights, a Kantian notion motivates and forms the background which explains judicial decisions on such rights. These appear to use the tort of privacy to bring in dignitarian interests through the backdoor. Furthermore, the paper seeks to illustrate the manner in which dignity applies in a context where the self is legally established as a fungible commodity, and how the economic and property interest in publicity rights receives protection as a deeper fundamental right in judicial decisions.

THE USA’s RIGHT TO PUBLICITY: A PRIMER

This section briefly lays out the conception of the right to publicity in the USA. Its initial nexus with the tort of privacy begins to eclipse as key judicial decisions distinguish between privacy rights and economic rights. The right to publicity is given the characteristic of the latter, and privacy claims in the same appear to take a backseat. Publicity rights are recognised by the States, and do not find any basis in a common federal law. The decisions discussed in this paper are from courts of appeal in various States where the legal basis of the right to publicity varies. A qualitative exploration of that basis is tangential to this study, and will not be contextualised in this paper.

In 1953, Haelan Laboratories, Inc. v. Topps Chewing Gum Inc.[1] discussed ‘the right of publicity’ and emphasized that it is an economic right having attributes of property, rather than having the quality of a personal right rooted in privacy.[2] Most US states since Haelan Laboratories cast the right of publicity as such and have given it the qualities of property — assignable, descendible, transferable, and commodifiable.[3] There is no federal law on this subject and the substance and manner of its use vary across states. It is statutory in some, while embedded as a common law tort in the others.[4] For example, New York’s protection of this right is by way of statute. It is narrow, and names specific personal attributes (voice, picture, signature, name) that protection can be sought for, while the California statute accords broader protection against unauthorized use of a person’s any attribute in merchandise, advertisement or selling.[5] Meanwhile Indiana goes further to protect any unique and distinctive feature of a person like their identifiable mannerisms and peculiar gestures.[6]

Nexus with Privacy

Broadly, publicity rights mean a person’s entitlement to be able to commodify aspects of their image, likeness, identity, and other related indica by alienation or transfer of it to another party that wants to purchase and use it. In its theoretical heritage, the right of publicity is wound up with one’s privacy rights. Right to privacy in the USA has popularly been characterised as “the right to be left alone”.[7] Privacy found its place as a tort in the now classic Warren and Brandeis law review article,[8] which posited that injured parties have the right to seek damages for the unconsented disclosure of truthful information that is not public and privileged.[9] A surge of scholarship over the years inspired the direction and form of the right of publicity as known in the USA today.[10] In 1960, a legal scholar framed a four-point formula elucidating the four actionable claims that lay in the tort of privacy. The fourth one was “appropriation for the defendant’s advantage of the plaintiff’s name or likeness”.[11] This is the earliest archetype of the modern right of publicity.[12] It was characterised as a tort of appropriation of identity, and was considered a subset of the broader tort of privacy.[13]

The Eclipse of Privacy: The Move Towards an Economic Right of Publicity

Publicity rights eventually came to be increasingly disaggregated from privacy and hoisted as an independent right based on economic and property considerations, and the decision in Haelan Laboratories[14] kick-started this process. Subsequent judicial decisions began insisting on the distinction between the economic and the personal right in privacy, especially after the US Supreme Court decision in Zacchini v. Scripps-Howard Broadcasting Co.,[15] which confirmed the commercial moorings of publicity rights as distinct and separate from the privacy tort with its non-heritable and non-assignable character. Since Zacchini, the prioritisation of the ‘property’ and economic considerations in publicity rights snowballed.[16] So, if one’s image, identity or likeness is appropriated by another for commercial use without seeking consent of and providing compensation to the proprietor i.e., first publicity rights-holder, a cause of action for damages lies with the first-holder. Where the holder has voluntarily assigned broad publicity rights to another for commercial use, and where there is consideration, the third party may use and project the image and transferred identity of the holder in any manner expressed or implied by the assignment or transfer.

LOOKING FOR ‘DIGNITY’ IN PUBLICITY RIGHTS JURISPRUDENCE

Scholars posit that the prioritisation of the economic interest in publicity rights does not indicate the total eclipse of the privacy interest in it. Privacy claims in publicity rights cases have been agitated before courts where parties only sought equitable relief of non-publicity or any use of their images or like indica. Such injunctions have been sought sans any monetary claims for assignees’ use of their images — it was simply that the plaintiffs did not wish to have their identities commodified or used in the manner that they were. The so-called purely “economic[17] right of publicity has continued to use the privacy basis, and has had something else brewing alongside it. When one observes reasons given by the Courts for accepting plaintiff’s claims, one sees oblique[18] and — I argue — the development of a nascent judicial acceptance of the dignity of publicity right-holders. I now explore how some judicial decisions have alluded to dignitarian interests into the right of publicity.

Oblique Recognition in Adjudication

The following is a brief rundown of judicial decisions that appear to allude to conceptions of dignity using backhanded reasons and observations. In Onassis v. Christian Dior,[19] Jacqueline Onassis sued Dior for an advertisement that used her “likeness in form”.[20] She had not consented, and claimed that it “was a violation of her rights of privacy” and caused her “irreparable injury”.[21] Note that Onassis sought no monetary damages — just a preliminary injunction against any use of her likeness and consequential commodification of her image. The Court conceded and observed that “While the statute may not, by its terms, cover voice or movement, characteristics or style, it is intended to protect the essence of the person, his or her identity or persona from being unwillingly or unknowingly misappropriated for the profit of another.”[22] In Midler v. Ford Motor Co.,[23] Ford Motor was sued by celebrity singer Bette Midler for using a “sound-alike”[24] who mimicked her voice to perform in a commercial advertisement, after Midler had refused their offer to appear in it. The Court acknowledged that Midler suit was not for copyright (and damages therefor), but that her claim “protectible here is more personal than any work of authorship.”[25] Finding in her favour, the ruling insisted that “the human voice is one of the most palpable ways identity is manifested” and that to “impersonate her voice is to pirate her identity.”[26] In Waits v. Frito-Lay, Inc.,[27] singer Tom Waits brought claims of punitive damages against Dorito’s chips company for using his voice mimic in a commercial that he claimed injured his right of publicity. The Court noted that Waits was someone who chose not to do commercials[28] and thus found “the defendants’ conduct despicable because they knowingly impugned Waits’ integrity in the public eye.”[29] Waits was awarded compensation double of actual market value[30] to make up for injury to his “peace, happiness and feelings”.[31] 

 Most Proximate Recognition in Adjudication

The following is brief perusal of judicial decisions and observations that appear to invoke conceptions of dignity using the least backhanded reasoning and observations. In Pavesich v. New England Life Ins. Co.,[32] Pablo Pavesich sued for damages for unauthorised appropriation of his name and image by an advertisement. The Court compared the commercial use of his image to slavery, citing his total deprivation from control of his own identity: “[…] his liberty has been taken away from him…that he is in reality a slave without hope of freedom, held to service by a merciless master…”.[33] In Goldman v. Simpson,[34] the Goldmans’ claim that they should be assigned O.J. Simpson’s publicity rights was rejected by the Court. It reasoned that assignment of broad publicity rights to and therefore total control of one’s “identity” by third parties would amount to “involuntary servitude”.[35]

 Judicial Indecision on the Alienability of Publicity Rights

Even though ‘dignity’ semantics find no explicit mention in adjudication on petitions by first-holders citing unwarranted publicity-rights use, dignity concerns do manifest in judicial reasoning. Jennifer Rothman’s detailed appraisal of judicial decisions reveal that it is precisely the Courts’ indecision and awkwardness discernible in treating these rights as purely property or economic interests is what underlies the involvement of fundamental dignitarian interests in the domain of publicity rights.[36] While the prevailing rhetoric in law is about the treatment of the right of publicity as property which is easily separable, assignable or transferable, there appears to be enormous ambivalence in judicial reasoning for why publicity rights have not been deemed totally alienable from their identity-holders.[37] The discomfort in treating such rights as property under bankruptcy law, where creditors have legitimate claims;[38] or the rejection in treating publicity rights distributable and severable as marital property during divorce proceedings;[39] or the hesitation in recognising publicity rights as descendible postmortem when they are recognised as commodifiable property[40] — all this seems odd especially  since the rhetoric is that the right of publicity is property akin to copyrights and trademarks, and the latter two have been treated as totally alienable in the above four contexts.[41]

As we have seen in the decisions above, plaintiffs who seek relief against unauthorised use of their publicity tend to prioritize the privacy argument over readily-available and established statutory protection (which promises pecuniary compensation for any use). Jonathan Kahn argues that Courts use the privacy right-based heritage of publicity rights to bring in oblique recognition of dignity.[42] Courts have somehow conceded that dignitarian interests involving identity and personhood questions are seminal to publicity rights.[43]

 What is it about publicity rights that Courts in the USA have found awkward to treat as akin to property? An inspection must be made into which conceptions and presumptions underly the judicial imagination of the relationship between the image or likeness of the self and the ‘person’ of first-holder that inspires gross discomfort in allowing disinterested severability and alienation of the two.

WHITHER THE ‘DIGNITY’ AND HOW PRESENT?

Judges’ observations and conclusions in cases continually touch upon the nexus between privacy and publicity rights, but do not make clear, conclusive or expressive points on dignity, privacy, and their legal relation with the right to transfer or commodify one’s self-image. Through the valve of privacy, incidental observations on maintaining the integrity of one’s identity, personhood and autonomy abound. The observations and conclusions in the cases above demonstrate this.

The Kantian Conception (How) Prevails

Philosophical intuitions of the dignity-based argument are motivating the decisions discussed above — in the contentions of aggrieved first-holders, certainly, but in the intuitions of the Courts, too. This is betrayed obliquely, and one observes normative conceptions of personhood and autonomy wound up with the right to privacy taken recourse to by the plaintiffs. I argue that dignity is thus brought in through publicity right’s privacy backdoor, and that Kant’s philosophical position on dignity is clearly discernible.

Immanuel Kant is widely regarded for vesting ‘dignity’ with a humanity-oriented moral philosophy, and his ideas have received unprecedented currency.[44] While Kant’s philosophical moorings on moral law and reason, and their relation with dignity deal with several themes,[45] I focus particularly on the strand of thought that highlights the relationship between dignity and autonomy. Human dignity, according to Kant, is inherent to all persons who despite any difference in social standing, possess equal and intrinsic worth.[46] Kant’s “Categorical Imperatives” — the fundamental, universal, rational, and moral principles — mandate that no human is treated as a mere means to some end, but entirely as an end only.[47] A corollary to this is giving due regard to the autonomy of every person — their innate liberty to exercise which is totally indefeasible. It is immaterial whether any person is good or bad, worthy or unworthy; simply by being human i.e., by their capacity to exercise reason, are entitled to the inviolability of their rational autonomy.[48] Although the decisions discussed above do not expressly discuss Kant or his dignity-conceptions in legal philosophy, allusions to this framework are evident.  The remarks made on ‘protection of persona’ or ‘pirating of identity’ and ‘protection of an indica more personal than any work of authorship’, in Onassis and Midler illustrate the courts’ intuition about the deeper issues of intrusion upon personal autonomy involved in unauthorised use of a person’s distinctive indica. None of the plaintiffs’ actual names were used in the commercials, and yet, their distinctive attributes mimicked by the actors represented the rights-holders’ authentic selves, which was unacceptable to them. The courts were quick to concede that the plaintiffs simply did not want to be commercialised by personal choice, and that their agency was arrested and suppressed by the actors representing them in the commercials. The result was that the rights-holder ended up being commercialised without their consent. Waits’ claims, on the other hand, agitated injury to his publicity rights unlike Onassis and Midler, who used privacy-violation claims. It could have easily been adjudged that since Waits had not consented that his image be used, it was a clear-cut violation of his publicity right. Yet, the Court felt the need to touch upon the issue of Waits’ ‘integrity’ and how non-consensual commercialisation ‘detracted’ from it. More pertinently, it allowed Waits punitive damages twice the market value of his publicity to heal the injury to his hurt. Going by these judicial observations, the plaintiffs’ legal injuries involved not only an infringement of their autonomy, but also afflicted an injury on their person — and that was unacceptable and needed to be remedied. I argue that the allusion to dignity is oblique in these cases, as it is focused on the question of injury to the person is cast as an injury to, and therefore suppression of the person’s choice-making agency. However, the observations in Pavesich and Simpson involve more strongly worded remarks on personhood, and therefore go further than Onassis, Midler or Waits. The courts focus on the total deprivation of agency (as opposed to only an injury) in certain cases of assignment of publicity rights. They raised concern about the implications of absolute subjugation of one’s personhood in assignment of publicity rights, when the person’s identity is allowed control of by third parties. The court highlights its repulsion at this by likening the consequences of such assignment to enslavement, ‘without hope of freedom’, like ‘service to a merciless master’, and ‘involuntary servitude’. Clearly, to the courts in Pavesich and Simpson, the quality of harm is extremely high because it involves external control of the identities of people. Identities are posited as extensions of the persons themselves, and it would mean using the persons as a means for monetisation and totally inundating their rational capacities to exercise a liberty of choice. In this sense, these two cases come out strongest and most proximate to the Kantian philosophy that mandates treatment of persons sans manipulation, nor by denying them of their true status as “rational agents”, and by consequence, their dignity.

What is the justification for invocation of ‘autonomy’ and thereby ‘dignity’ questions in a context where the self is legally established as a fungible commodity? Scholars justify that dignity applies in a fundamental way in publicity-rights appropriation. Kwall’s work bemoans that rights-holder’s dignity is particularly subject to “maximum harm” when appropriation of their persona is allowed for purposes not consented to or participated in by them; judicial relief would therefore necessitate recognition of serious harms to dignity rather than just grant of economic relief, which will never be sufficient relief in any case.[49] This position does not explain why it is that dignity is tethered to the self even when it is established as a commodity. When protection in tort and civil actions lies in bringing compensation to a person that is aggrieved by any misuse or misappropriation of their identity, why must the focus rely on the autonomy aspect instead? Perhaps Margaret Radin’s work on “property and personhood” is seminal in this regard.[50]

There are certain ‘objects’ that one may feel are undeniable parts of themselves.[51] Radin posits that achieving meaningful self-development as a person would require the individual to possess control over those resources that are relatively more interwoven with their own person than others. The measure in which a thing is bound to a person’s own sense of self will determine its position as an integral part of the person’s identity, and hence, the more infungible that object becomes. Radin uses Kant’s philosophy to expound her philosophy of “the person” — rational, free and autonomous agents are entitled not to be disembodied from the very things that represent attributes of the person’s “bodily continuity”.[52] Injury to one’s identity will be an assault of dignity if the object bound with notions of identity undermines the free and autonomous flourishing of personhood. Various objects may be determined by persons as being integral to their own person — be it a family heirloom, a wedding ring, or other representative objects that are virtually extensions of the self.[53]  Thus, if it is understood that a person can possibly be linked to an external thing “in some constitutive sense”, it is an imperative that the person be able to exercise their liberty of control over that object.[54]

The constitutive interest vests in the persons a degree of one-ness with the object, and undeniably therefore, a property interest in it. The thing that is a bodily extension of the person, is their property and it is for them to do with it whatever they please. They may assign part of their image for consideration to another, or may sever an indica of themselves for commercial purposes. Although these appear to be transactional within the domain of contract and property law, it is not so. Because of the dignitarian interests involved in questions of the self, assignments of self-image or indica are never totally irrevocable or severable from ownership of the person. Despite self-commodification, the holder of one’s own publicity right will always remain sole proprietor and free agent in her negotiation and exercise of will in the degree and manner of exercise of her own property. The self is commodifiable only at the instance of the first rights-holder because of their innate absolutely inviolable entitlement to dignity and autonomy of personhood. Use of their images or indica by third parties in any manner not permitted or participated in by them will amount to affronts on their choice, subjugation of their personhood, and injury to their dignity. 

CONCLUSION

Supermodel and Hollywood actor Emily Ratajkowski’s recent essay detailed her lack of control over the use and curation of her images by men in an image-focused market economy. It brought renewed focus on questions of personal autonomy in purely ‘economic’ publicity rights.[55] Narrating incidents where contractual sophistry left her without legal control of her own intimate images, Ratajkowski writes, “It seemed strange to me that he or I should have to buy back a picture of myself — especially one I had posted on Instagram, which up until then had felt like the only place where I could control how I present myself to the world, a shrine to my autonomy. If I wanted to see that picture every day, I could just look at my own grid.”[56]

Publicity rights involve facets of identity that are integral to personhood. This is why it has not mattered that the legal regime for it in the USA is framed as a predominantly economic interest; the dignitarian interests can never be fully bypassed nor extinguished, and they have not been. The judicial decisions and indecision in ascertaining the (in)alienability or (in)severability of such rights demonstrate this. Courts have used and accepted privacy claims to protect dignity and autonomy harms in publicity rights use. The right to privacy is utilised as a gateway to protect dignitarian interests at stake. Privacy serves not as a distinctive or independent right in cases of unauthorised use of publicity rights, but as a supportive mechanism that intersects with and propels into focus other fundamental bundles of dignitarian entitlements that are inherent to matters of identity and personhood.[57]


Ruchi Chaudhury holds a Bachelor’s in History from St. Stephen’s College, Delhi, and is a postgraduate in Social Anthropology (SOAS, University of London). She is currently an LLB candidate at Jindal Global Law School. Ruchi has previously worked as an Associate at National Law University, Delhi’s litigation clinic and criminal law research centre, Project 39A.


Photo Credits: Victor Boyko/Vogue

[1] 202 F.2d 866 (2d Cir. 1953).

[2] Marshall Leaffer, Sheldon Halpern and the Right of Publicity, 78 Ohio St LJ 273 (2017).

[3] The US Supreme Court decision in Zacchini v. Scripps-Howard Broadcasting Co. 433 US 562 (1977) cast privacy as a ‘personal right’ and recognised the right of publicity as a ‘commercial right’ for which one ought to be compensated. While a personal privacy tort was not assignable or heritable, a commercial right to publicity was.

[4] Brittany Lee-Richardson, Multiple Identities: Why the Right of Publicity Should Be a Federal Law, 20 UCLA ENT. L. REV. 189 (2013).

[5] Id., 197. 

[6] Id.

[7] Samarth Krishan Luthra & Vasundhara Bakhru, Publicity Rights and the Right to Privacy in India, 31 NAT’l L. Sch. INDIA REV. 125, 127 (2019).

[8] Samuel D. Warren, Louis D. Brandeis, The Right to Privacy, 4 HARVARD LAW REVIEW 193, 207 (1890).

[9] Luthra & Bakhru, Publicity Rights and the Right to Privacy in India, supra note 7, 127.

[10] In 1954, Melville B. Nimmer’s article, The Right of Publicity, 19 LAW AND CONTEMPORARY PROBLEMS 203 (1954)) called for celebrities’ need for control over the economic use of their ‘celebrity’. Nimmer did not think intrusions into their privacy was a focus for protection like the proprietorship over their publicity rights were.

[11] Prosser took forward the views of the Brandeis and Warren article to articulate a four-point formula in the kind of claims that were actionable under the tort of privacy; see in Restatement (Second) of Torts §§ 6521, 652A-6521 cmt. a (1977); William Prosser, Privacy, 48 CALIFORNIA LAW REVIEW 383, 398-401 (1960).

[12] Luthra & Bakhru, Publicity Rights and the Right to Privacy in India, supra note 7,128.

[13] The nexus is recognised as such in Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68 (1905).

[14] Haelan Laboratories, Inc. v. Topps Chewing Gum Inc. 202 F.2d 866 (2d Cir. 1953).

[15] 433 US 562 (1977).

[16] Lee-Richardson, Multiple Identities: Why the Right of Publicity Should Be a Federal Law, supra note 4, 194 – 195.

[17] See author conclusions in Rodrigo Cetina Presuel, Sebastián Zárate Rojas, Introduction to the Special Issue: The Right to the Protection of One’s Own Image in Ibero-America and Its Relevance for the Right of Publicity in Common Law Countries, 8 Journal of Information Policy 338-345 (2018); and in José Manuel Martínez and Juan Manuel Mecinas, Old Wine in a New Bottle?: Right of Publicity and Right to be Forgotten in the Internet Era, 8 Journal of Information Policy, 362-380 (2018).

[18] I frame this as such using Kahn’s phraseology in his exploration of judicial reasons in publicity rights cases. The thrust of Kahn’s work, however, writes on confounded judicial reasoning in privacy-publicity rights matters, and does not conclude that there exist a discernible and intuitive judicial recognition of dignitarian interest as I do; see in Jonathan Kahn, Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity, 17 CARDOZO Arts & ENT. L.J. 213 (1999).

[19] Onassis v. Christian Dior of N.Y., Inc., 472 N.Y.S.2d 254, 263 (N.Y. Supt. Ct. 1984)

[20] Id. at 604.

[21] Id.

[22] Id. at 610; emphasis mine.

[23] 849 F.2d 460 (9th Cir. 1988).

[24] Id. at 2.

[25] Id. at 6; emphasis mine.

[26] Id. at 8; emphasis mine.

[27] 978 F.2d 1093 (9th Cir. 1992).

[28] Id. at 3.

[29] Id. at 34; emphasis mine.

[30] See in Jonathan Kahn, Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity, 17 CARDOZO Arts & ENT. L.J. 213, 240 (1999).

[31] 978 F.2d 1093 (9th Cir. 1992). 

[32] 122 Ga. 190 (Sup. Ct. of Georg. 1905).

[33] Id. at 220.

[34] No. SCO3-6340, (Cal. Super. Ct. Oct. 31, 2006).

[35] Id. at 12.

[36] Rothman, The Inalienable Right of Publicity, 101 GEO. L.J. 185, 218-219 (2012).

[37] Id., 204.

[38] Id., 199-200.

[39] Id., 201-202.

[40] Id., 203.

[41] Id., 226, 231, 233-242. 

[42] Kahn, Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity, supra note 30.

[43] Id., 214, 270-271.

[44] See in Thomas E. Hill, Kantian Perspectives on the Rational Basis of Human Dignity, The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (Marcus Düwell and others eds. Cambridge University Press, 2014).

[45] See in Immanuel Kant, Groundwork of the Metaphysics of Morals (Mary Gregor tr, Cambridge University Press 1998).

[46] James Rachels, Kantian Theory: The Idea of Human Dignity, The Elements of Moral Philosophy, (James Rachels eds. 7th edition, 2012).

[47] Id. at 114-17,122-23.

[48] Id.

[49] Roberta Rosenthal Kwall, A Perspective on Human Dignity, the First Amendment, and the Right of Publicity, 50 B.C. L. REV. 1345 (2009).

[50] Margaret Radin, Property and Personhood, 34 Stanford Law Review 957, 962-63 (1982).

[51] Id. at 959.

[52] See Radin as quoted and discussed in Kahn, supra note 30, footnote 31, at 218.

[53] Radin, Property and Personhood, supra note 50, at 959.

[54] Id. at 960.

[55] Emily Ratajkowski, Buying Myself Back: When does a model own her own image?, The Cut, September, 15, 2020; https://www.thecut.com/article/emily-ratajkowski-owning-my-image-essay.html.

[56] Id. Emphasis mine.

[57] See in Judith Jarvis Thomson, The Right to Privacy, 4 Philosophy & Public Affairs, 4, 306 (1975). 

 

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