The Commodification of Humiliation
The revitalized Radar magazine has a great piece on “Prisoners of YouTube:” individuals caught on camera in various humiliating situations and exposed to countless views on websites. (The “Star Wars Kid” has apparently been viewed 900 million times…that may well be once or twice for everyone with ready access to the internet!) As Radar puts it,
Virtually every week has seen another private error or foolish moment datacast to the world. You could get in an argument with a stranger on a bus. Or you could disastrously try your hand as a sportscaster on a college station. Or you could accidentally shoot yourself. With 780 million camera phones sold worldwide in the last two years, no one is safe from senseless and random ridicule. The surveillance state we’ve been fretting about for so many years has snuck up on us. But it’s not concerned with political control. It just wants to see people screw up.
Recently a person dismayed by their virally-video’ed fame-gone-wrong wrote to me to ask about his legal options. I obviously wasn’t going to give legal advice on email, but he did get me thinking about potential legal recourse for these “victims of YouTube” beyond my initial reflections on “inclusion harm” in searches.
For example, imagine someone has been filmed in a “stunt” that makes them look reckless. And, say, dozens of sites that get the video (of uncertain copyright ownership) show it, and make some money off ads around it. Does the person “starring’ in the video have any right to demand a “cut,” as big film has been trying to get from YouTube (and as Euro-news outlets look to be on their way to getting in Belgium)?
Well, their claims are based on copyright, and in many of the humiliation cases, it’s not exactly clear who owns the tape (or, if the owner publicly claimed ownership, whether they might be sued by, say, the owner of the music in the background). Are there other claims? I think a lot depends on how far one can push a case like Zacchini, where the Supreme Court recognized the right of publicity. Here’s a helpful summary of that case:
Zacchini performed a 15-second “human cannonball” act, in which he is shot from a cannon into a net some 200 feet away, [and] was, without his consent, videotaped in its entirety at a county fair in Ohio by a reporter for respondent broadcasting company and shown on a television news program later the same day. Zacchini then brought a damages action in state court against respondent, alleging an “unlawful appropriation” of his “professional property.” The U.S. Supreme Court recognized the right of publicity and stated the “Petitioner’s right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in the act; the protection provided an economic incentive for him to make the investment required to produce a performance of interest to the public.”
Hmm…I don’t know if I’d call a “human cannonball” in the “public interest,” but I’ll leave an anti-Bleistein rant for another day. And of course Zacchini only got to the high court so it could shield certain state right of publicity statutes from First Amendment scrutiny; any such claim would have to rest on a given state’s RP law. But as a WSJ article today showed, there’s plenty of room for forum shopping there given the near-universality of internet activity.
Even if we find a friendly state, one problem in applying Zacchini to the YouTube “Victims” lies in the nature of the harm here. He had a business based on commodifying views of his act; they had no such intentions. But one would think any right to derive revenue from one’s “act” wouldn’t depend on whether the performance were intentional or unintentional, or whether one’s “business” was built on it.
But let’s say one of the YouTube “Victims” sets up their own website, and wants to charge for access. Would that make the case more applicable? I’m not really certain, but there are certain economic realities that make Zacchini a bit anachronistic today. He could plausibly claim that local television stations were substituting for his act; but the YouTube victims appear to owe their popularity to widespread dissemination of their image. They may well “indirectly appropriate” more value from the uncontrolled performance than any perfectly controlled exposure of the material could have earned.
But even more importantly, the Zacchini policy rationale really doesn’t fit here….the right of publicity strikes me as ultimately about the right to gain revenues based on a persona one has crafted, rather than from a situation one has stumbled into. On the other hand, Mark McKenna has argued that the right should be construed more expansively, to “give every individual. . . an interest in preventing uses of her identity that strip her of control over the meaning of her identity.”
I don’t know if I’m convinced the law can do that work, admirable as it may be from a policy perspective. But as privacy causes of action like “false light” fall from favor, perhaps a more expansive view of the right of publicity will help the humiliated hamstring exposure via viral video.