18 July 2012


'Atrocity, Entitlement, and Personhood in Property' (Vanderbilt Public Law Research Paper No. 12-30) by Daniel Sharfstein comments that -
 For a generation since Margaret Jane Radin’s classic article Property and Personhood, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence — the “atrocity value” in property — upends core assumptions about the American property tradition and complicates the progressive social function of property law. This article explains why atrocity creates entitlement, drawing from social psychology and accounts of law and violence to show how violence can foster personhood. The article then explores the deep historical roots of atrocity within the American property tradition, which helped establish an abiding cultural value that encouraged personal identification with property. Finally, the article surveys how atrocity continues to foster personhood in an array of contexts involving common ownership, exclusion, and use. Ultimately, personhood emerges less as a progressive value in property than as a challenge that the law has had to negotiate. Property law is often successful in promoting progressive and cooperative goals because courts do not attempt to decide cases on the basis of a personhood value in property. ... 
This Article explores how people identify with their property when they have committed hurtful and harmful acts in its acquisition and use. The inverted correlation between ownership and violence complicates a dominant view in legal scholarship that property creates or reinforces “personhood,” a “value” in property law that has long been equated with autonomy, dignity, and basic civil rights. Rooted in Hegel’s Philosophy of Right, given concrete form by a century of psychological literature, and canonized in legal thought in a classic 1982 article by Professor Margaret Jane Radin, personhood theory views property as necessary for an individual “to achieve proper self-development — to be a person.” Because people are “bound up” in their property, it has a crucial “human flourishing” function as well as a central role in the progression “from abstract autonomy to full development of the individual in the context of the family and the state.” As a result, personhood presents what Radin calls a “moral basis” for resolving legal questions across a broad range of property-related doctrines, separate and apart from categorical defenses of the right to exclude or utilitarian justifications for particular allocations of rights and uses. For thirty years, scholars have viewed Radin’s insights as an alternative from the left to traditional, more utilitarian and economically focused property theories. 
It is undoubtedly true that many people derive great satisfaction and a sense of personhood from exercising their property rights in socially and environmentally responsible ways and from contributing to the interests and aspirations of a broader community. At the same time, this Article suggests that when conflicts over ownership and use arise, even harmful conduct can become conflated with the rights of ownership and with people’s identities as owners. These moments when violence and pain intensify the bond between people and their property reveal how personhood does not always have a progressive valence. It presents itself less as a value that should be recognized — a basis for decision making — than as a set of challenges for property law to navigate as it seeks to define and protect individual rights and obligations in a peaceful, pros- perous, and democratic society. 
The connection between violence and personhood has deep roots in the American experience, extending back to the earliest colonial encounters between Europeans and Native Americans, and it continues today at a less cataclysmic level in everyday conflicts involving property owners, their neighbors, and the government. If colonial violence played a role in establishing a cultural value that encouraged personal identification with property, today’s conflicts show how personhood remains a complicated product of ownership that can defy easy categorization as good or bad. 
In writing about the connection between violence and personhood, I discuss a broad spectrum of conduct, from historical massacres to the most commonplace unneighborly acts. To reflect this conceptual range, I call the personhood that arises from nasty conduct the “atrocity value” in property. It is a phrase that encompasses the worst acts imaginable — what the Oxford English Dictionary terms “horrible or heinous wickedness” — as well as acts that are merely “atrocious,” or “violations of taste or good manners.” If “atrocity” appears to be a hyperbolic way to describe, say, unsightly landscaping that dismays the neighbors, it captures the vehemence with which people fight over such matters and the significance that keeping a ratty couch in the yard can attain with regard to how owners see their property and themselves. 
In questioning personhood’s progressive valence, this Article develops three insights about personhood and the American prop-erty tradition. First, I argue that personhood is more pervasive and deeply rooted in American property law than most scholars have realized because it is not limited to doctrinal areas associated with progressive goals for property. If personhood is fostered by bad conduct, in cases where “human flourishing” and “the freedom to live one’s life on one’s own terms” through property ownership is a function of mistreating others, it becomes much more difficult to resolve property disputes on the basis of personhood. There will always be winners, and there will always be losers - and in some cases the winners will value their property precisely because there are losers. Progressive theorists have declared that “[p]roperty law can render relationships within communities either exploitative and humiliating or liberating and ennobling.” In cases in which the humiliating and ennobling aspects of property are two sides of the same coin, the absence of a stated goal of promoting personhood - related to what Professor Henry Smith describes as the indirect connection between ends and means in property law - has allowed property law to domesticate and resolve even the most inflamed conflicts within an institution that promotes order, predictability, and cooperation. 
Second, this Article seeks to refine one sense of how property works in American society. It is often said that property is a social institution. But so is a pogrom. Social institutions do not have to be sociable; violence can also be constitutive of communities. But property regimes are not violent. They often reveal human behavior at its most inspiring. They require, as Professor Carol Rose observed, a great deal of cooperation, enough in fact to call into question classical assumptions of rational utility-maximizing. Property is a sociable institution despite the high stakes of conflicts over it — not just economic stakes, but deeply personal stakes on both sides of an issue. One of the achievements of property law is the way that it contains personhood, turning threats to the regime into occasions that strengthen it. While property law tends to check much of the most atrocious behavior, the decisions often turn on questions that are independent of whether the litigants’ conduct is good or bad or whether they are deriving the right kind of personhood from their property. Not basing decisions on personhood can mean that some people succeed in getting a right to be hurtful, unneighborly, or worse. But more often, it means that property law can guide and govern people who are invested in atrocious exercises of ownership without directly attacking their personhood or otherwise defining them as outsiders to the regime. 
Third, acknowledging the atrocity value in property may help explain some of the deep-seated resistance of many Americans to particular reforms that privilege social obligation or, more broadly, eliminate externalities. There are many ways to account for the widespread hostility to environmental measures and other forms of regulation. We often presume it is because regulation prompts people to imagine that the government will come for their property next. There is widespread denial that certain problems such as global warming exist, and, for a variety of reasons, many see the government as an outside entity that will never represent or consider their interests. But individuals are also capable of contemplating externalities and collective responsibility. The atrocity value that shadows personhood suggests how polluting uses can become indistinguishable from the meaning of a property right and of ownership itself. Property law’s success in realizing certain pro- gressive “human flourishing” goals will turn on how it acknowledges and works with manifestations of personhood that run contrary to those goals.
Sharfstein concludes -
A generation of scholars has embraced the “human fulfilling” aspects of property, but for hundreds of years, it has been possible for Americans to identify with their land because they have been able to hurt people in the course of acquiring and owning it. While long associated with the most progressive values of property, personhood has a dark side, as people justify morally unacceptable conduct by investing themselves in their land. From the beginning of the American experience of property, personhood has cut in multiple directions. It has been less of a progressive value in property than a challenge that the law has had to negotiate. 
It might seem possible to ignore the historical link between atrocity and personhood and focus on ways to cultivate human fulfillment in the present. But as long as people find personhood in bad behavior as owners, property will continue to have to balance incompatible personhood claims. Given its ambiguous valence, ignoring personhood altogether in favor of deciding property questions with other moral principles may be tempting. But the American cultural investment in property is so closely tied to personhood that ignoring it risks moving the law too far from shared normative assumptions about the obligations of ownership. As a result, people may view such rules as illegitimate, or they may invest less of themselves in the land, altering their sense of ownership in socially detrimental ways. 
Progressives aspire to shape property’s norms to “promote ... environmental stewardship, civic responsibility, and aggregate wealth” and to “establish the framework for a kind of social life appropriate to a free and democratic society.” But the complex moral valence of “human flourishing” compels more sustained attention to the ways individuals might resist progressive measures as well as the kinds of indirect approaches the law has long relied upon to contain and channel the behavior of property owners. When property conceives of personhood as a fact of ownership, for pleasure and for pain, as opposed to a basis for decision, it can balance competing interests and give both sides a continuing and ultimately cooperative stake in making the system work.
SSRN meanwhile offers 'Featuring People in Ads', a chapter by Eric Goldman & Rebecca Tushnet in their 2012 casebook Advertising & Marketing Law: Cases and Materials.

They note that
In the United States, privacy rights generally trace back to the immensely influential privacy article by Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARVARD L. REV. 193 (1890). Both Warren and Brandeis were lawyers at the time; Brandeis went on to become a celebrated U.S. Supreme Court justice. The authors were reacting to improvements in camera technology. Initially, camera shutter speeds were so slow that people had to pose (i.e., stand still) for photographs. However, technological evolutions reduced shutter speeds, which allowed photographers to take unconsented photos of people. Warren and Brandeis argued that “the existing law affords a principle from which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.” 
Recapping privacy law in the early 1960s, Dean William Prosser classified privacy legal claims over the intervening seventy years into four categories. See William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960) and RESTATEMENTS (SECONDS) OF TORTS (for which Prosser was the reporter). As defined by Prosser, the key for our purposes here is category 4, “Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness,” which has evolved into the modern “publicity right.” 
Although the publicity rights doctrine is well recognized, its legal implementation is a little chaotic. There is no federal publicity right. Currently, twenty-eight states statutorily codify publicity rights, and some statutes explicitly provide that publicity rights survive beyond a person’s death. See, e.g., Cal. Civil Code § 3344.1 (surviving rights for seventy years post- mortem); Indiana Code 32-36 (surviving rights for 100 years post-mortem). In some states, publicity rights are protected by way of common law doctrines. California protects publicity rights both by statute and the common law. 
Because many celebrities reside there, California and New York play particularly important roles in the development of publicity rights laws. However, publicity rights are not limited to celebrities, and they usually equally protect both well-known and unknown individuals. 
Publicity rights generally govern two discrete activities: first, the “merchandizing” of a person by selling an item that incorporates some identifiable part of the person, such as the incorporation of a celebrity’s image on a t-shirt, and second, the depiction of a person in ad copy. Typically, the ad copy cases are doctrinally easier than the merchandizing cases, but both types of cases can create difficult line-drawing situations. In addition, the publicity rights doctrines have an uneasy fit with the First Amendment, especially in the merchandizing context. 
Publicity rights only apply to individuals; companies or other business organizations “protect their name” through trademark law and related doctrines. If a person’s name develops secondary meaning in association with commercial offerings, people can develop trademark rights in their name or other attributes to complement their publicity rights (which exist automatically). When enforcing those rights, trademark law requires that the usage creates a likelihood of consumer confusion. (Recall the Lamparello v. Falwell case from Chapter 10.) In contrast, no consumer confusion is required for a publicity rights claim.