Rereading Warren and Brandeis: Privacy, Property, and Appropriation

Abstract

Rereading Warren and Brandeis, as one must on this hundredth anniversary of their "monumental article," comes as something of a shock. The prestige and enormous influence of the piece creates expectations of sweeping vistas and irresistible arguments. But, setting aside the rhetorically powerful (and often quoted) passages of complaint against the irresponsibility of the press, the article offers instead a technical and rather dry exposition of the legal rights of unpublished authors and artists. The argument that carries the actual work of the article is intended to demonstrate that the law of common law copyright, usually conceptualized in terms of property, should rather be seen as resting on "the right to privacy, as a part of the more general right to the immunity of the person, the right to one's personality." In fact the central thrust of Warren and Brandeis's article on "the right to privacy" is to disentangle privacy from property, and the subsequent influence of the piece rests in great measure upon its success in that effort. As one court remarked, duly noting the leading contribution of Warren and Brandeis's article: "Basically, recognition of the right to privacy means that the law will take cognizance of an injury, even though no right of property or contract may be involved and even though the damages resulting are exclusively those of mental anguish." There is no small irony in this. Warren and Brandeis acknowledged as one of the chief motivations for their article the "feeling," which had been growing "[f]or years," that "the law must afford some remedy for the unauthorized circulation of portraits of private persons." They therefore advanced as the "simplest case" of their proposed right of privacy the "right of one who has remained a private individual, to prevent his public portraiture." Yet many of the early privacy cases that recognized this claim against "public portraiture" did so explicitly on the grounds that "one has an exclusive right to his picture, on the score of its being a property right of material profit." Moreover seventy years after the publication of The Right to Privacy, when William Prosser magisterially divided the privacy tort into four distinct causes of action, he wrote that "appropriation," or the claim that a defendant has taken "for the defendant's advantage, ... the plaintiff's name or likeness," ought to be founded upon an interest that is "not so much a mental as a proprietary one, in the exclusive use of the plaintiff's name and likeness as an aspect of his identity." What we now call the tort of appropriation, what Warren and Brandeis would have called the right to prevent public portraiture, has thus all along lurched precariously between formulations of privacy and of property. This ambiguous history calls into question precisely the stakes in Warren and Brandeis's original attempt to distinguish privacy from property. What difference, we might ask, does it make whether the tort of appropriation is conceived as a property rather than as a personal right? The answer, perhaps, lies in a close rereading of Warren and Brandeis's pathbreaking work.