Text is Self

Although the diversity and depth of dynamic, person-to-person interaction on the Internet is just starting to mature, already many of the torts one person could inflict upon another without physical contact are being meted out in the virtual society of cyberspace. On-line interactions are saddled with particular difficulty through the added layers of abstraction between an on-line identity, hereinafter called a persona, and a real-world or 'meet-space' person. One layer of abstraction is the fact that when a virtual persona is slandered, such damaging remarks may or may not be applicable to the person behind the persona. Another level of abstraction arises in the cases where the persona appears from the start to have only limited similarity to the person who authors it, either because the person withholds aspects of her identity, or because she deliberately adopts a pseudonym or partially fictionalized character for the persona.

The lack of a direct nexus between the impact of the tort visited upon the persona and its effect upon the person attenuates some claims, such as invasion of privacy. [2] On the other hand, that very layer of abstraction is itself a created object, which may make available intellectual property claims in copyright or state or federal unfair competition law which would not exist in the real world. This paper explores some of the different paradigms of identity which may exist on the Internet, and examines both the metaphysics of the identity thereby formed, and the treatment of attacks on that identity under the major legal regimes: the right of privacy, the right of publicity, (briefly) trademark law, unfair competition (the Lanham Act section 43a), and finally copyright. [3] As this list suggests, one interesting property of this inquiry is that one is unsure whether to apply actions which protect the self (the tort actions), or the other/the work (as in copyright). Given the breadth and philosophical nature of this inquiry, the goal of this paper is not to make a comprehensive, definitive survey of each of these areas of the law as applied to on-line identity. Instead, the goal is to identify the general treatment which each regime should suggest.

In order to consider how the panoply of intellectual property laws provide remedies for identity damage on the Internet, it is first necessary to explore the different types of personae which might be damaged. When encountering another person on the Internet, one may never have met the person, and may have no expectation ever of doing so. The recipient of the message forms his opinion of the author solely through the text. As such, the recipient is constantly engaged in the discipline of deconstructing the text, without looking at extrinsic evidence of authorial intent or surrounding societal circumstances. To the recipient, the text itself is the person, or as much of the author as is needed to satisfy the purposes of the communication. In this way, analytically, we acknowledge first the independence of the text from the author in the recipient's perception, and second that the recipient will nonetheless treat the text like a person. From a critical perspective, the received text has taken on a 'corpus' all its own.

The word 'text,' in this context, is not meant to suggest that one's on-line persona will consist solely of ASCII, but is used in a broader, critical sense, referring to the work that makes up the persona. [4] However, the persona may well be more than a 'work' as the term is used in copyright law, for the platonic essence of the persona is defined by more than the already-scattered postings which constitute the persona's meet-space alter ego. The persona may also include reactions and comments that others have to the original postings. The persona's 'text' may also include multimedia elements: for example, if the author posts a picture or a home video. Moreover, the text may include the person's participation in a number of fora, including e-mail messages, newsgroup postings, world web sites, although no one communicant may ever see the entire text.

Not only may the text be analyzed, independent from the unseen author, but in some cases, the persona which exists on-line will actually contradict the image in which it is created. Beyond simply being capable of independent analysis, the on-line self actually begins to require a different analysis from its meet-space antecedent (its author). Sometimes these contradictions exist because the author deliberately adopts an on-line personality which is not her own. Such a distinction can take a simple, innocuous form; a person who tends consciously to play the devil's advocate in more the formal of person-to-person discussions may likewise tend to do so more often in her written, on-line identity. The on-line identity may thus come to be known for these contrary views more than the real person is. Such a deliberate distinction may also develop when a person deliberately adopts fundamental attributes of identity which do not correspond to her own (anything from gender or sexual orientation to her professed political affiliation, weight or musical tastes). [6]

The manner in which these distinctions are formed also highlights another complex issue for the intellectual property treatment of developing Internet personae: it may become difficult to determine who is the 'author' of the work which is the persona. Some distinctions between the author and the work are intentional, as in an author adopting a false identity for the sake of communications. In other cases, the character is authored, in part, by other participants in the forum reacting to the text authored by the persona's alter ego. For example, as mentioned above, on a listserv or Usenet newsgroup, the persona might make a remark, and others might respond either by praising the insight of the comment or 'flaming' the author (although actually his on-line persona) as intolerant, presumptive, or any of a number of other attributes. Eventually the reputation of the persona, for better or worse, could grow, and the fastest medium for spreading this reputation might be when audience members pass along the labels they have given the person. The copyright statute, however, awards rights for the inspiration of single or discrete groups of authors, and reserves ever-decreasing communal ownership in the public domain. [7] The postmodern notion of communal Internet authorship presented by some on-line personae diverges radically from the romantic notion of authorship embodied in the copyright statute.

The first point of reference, of course, is the identity of an actual, physical person in the real world, or 'meet-space,' (for the fact that one can actually meet a person here, unlike in cyberspace). As a frame of reference, it is important to note that real world identity has, over hundreds of years, gained the protection of numerous causes of action against invasive injuries to reputation or privacy. From harassment to infliction of emotional distress, defamation, and libel, avenues of protection are established. Moreover, one obvious aspect of meet-space reputational attacks is that they all directly affect the object in the real world; there is no layer of abstraction by which the victim can shelter herself from the attack. In other words, if the town gossip spreads it around that he saw you walking out of the local adult book shop with a suspiciously lumpy package under your arm, you cannot avoid the consequences the statement has for your meet-space existence the way you could hope that word that you had surfed to an adult site on the web might never get back to anyone who knows you in 'real' life.

The simplest form of on-line identity is when a real person represents him or her self truthfully. When representing oneself accurately in cyberspace, the resulting on-line persona is what one might call a true text. Such a "true text self" is closely linked to a real world individual, making it difficult for that individual to escape the implications of the things said about his or her on-line persona. For example, pretend that Phillip has been frequenting a singles' chat and matchmaking site. He has been sending e-mail furiously for weeks to a woman on the site, named Julia, and he is now preparing to pop the question (that being, "Would you like to meet?" of course). Although he has been honest, Phillip, in Julia's perception, is still a purely semiotic being, existing only in the text they have sent back and forth. "Phillip," as far as Julia sees, is the text, and the text is Phillip. What happens if Mallory, a malicious stranger lurking in the chat room with Julia and Phillip, reveals the fact that not only is Phillip a divorcee, but he also is a deadbeat dad who hasn't paid child support in seventeen months?

I will not focus extensively on situations where a person uses his or her real name, but lies about some other significant attributes. While the doctrine of caveat emptor applies, I proceed from the normative assumption that if a person identifies himself truthfully by name, he is acting as himself (whatever that means), and implies that other information is truthful. As such, falsities of the person's own doing can be addressed through traditional causes of action such as fraud, misrepresentation, infliction of emotional distress, and so forth. It is a truism that the liar should have no cause of action to protect his or her right to lie.

Different issues are raised when a person uses a pseudonym on-line because the damage inflicted by another to the persona is often limited to the persona itself, making it difficult for the meet-space person (who, unlike the persona, has standing) to prove damages. Despite the analytical distinction, it is difficult to tell a pseudonym from a true text person because one may not have enough information to connect a person's handle or login i.d. to his or her true identity. For example, if I use "AdamS@hotmail.com," someone seeing that 'name' may have no indication to which of the thousands of Adam S this pertains; the persona will probably be treated just as if it were a pseudonym until more information is acquired.

This paper does not generally discuss anonymity as distinct from pseudonymity. The main reason for this is that there is actually very little true anonymity in cyberspace. Instead, there are only varying degrees in the difficulty with which the true identity behind a pseudonym can be discovered. Even an 'anonymous' remailer is usually actually pseudonymous. First, such remailers usually facilitate return correspondence to the sender of a message which passes through the remailer. The pseudonym may not be very mnemonic (perhaps consisting of a session i.d. which the remailer program could identify), but it is a pseudonym nonetheless. Moreover, to facilitate this function, as well as to protect themselves from civil or criminal liability, remailers generally keep records of the true identities which correspond to remailed messages, and will release those records in response to adequate legal authority. [8] It is possible to send a single anonymous communication through a remailer which allows return service to be deactivated, and which does not keep record of users' real e-mail addresses. These rare situations are uninteresting to this paper, however, for such communications do not have the chance to develop into personae. More to the point, since they cease to exist as soon as the single message has been processed, they cannot be damaged by subsequent copying, alteration or comment upon the persona's communication.

Pseudonyms take various forms, even when they are not, in fact, true text selves. One example would be where a person deliberately adopts a pseudonym on-line, as in Orson Scott Card's Ender's Game .[9] There, Peter and Valentine Wiggin, much like many of the framers of the U.S. Constitution, adopt pseudonyms in order to disseminate their views about political philosophy and revolutionary change. [10] In their case, rather than having to hide their identities from the Queen's Redcoats, Valentine and Peter adopt pseudonyms to prevent it from being revealed that they are actually pubescent children, albeit brilliant ones. Publishing pseudonymously, Locke and Demosthenes become leading political commentators, whose posts become regular columns carried in the most influential fora. When first beginning to post messages to the net, Peter and Valentine use temporary pseudonyms to practice their writing style and to act as foils for their main identities. Like most pseudonymous identities, the author has no particular interest in the identity, and when these minor pseudonyms are labeled insignificant or immoral by the other actors on the scene, Peter and Valentine feel free to abandon the pseudonyms – simply to walk away. As such, the fact that the persona's injury has little effect on the actual author may prevent suits under regimes where imposition upon a person is essential to the cause of action, such as invasion of privacy claims.

Pseudonymous situations will differ, however, depending on how invested in the persona the writer is; just like any celebrity's pen name or stage name, if someone has built up a certain name recognition, or secondary meaning, in a persona, that persona becomes harder to walk away from if it is injured. For example, after Locke and Demosthenes have become major commentators on the world stage (indeed, Valentine later goes on to publish as Demosthenes for millennia through the effects of her relativistic near light-speed travel), their true identities are known no more than when they stated writing, but their connection to the pseudonyms is much stronger. If they had to start over as "Adam Smith," without anyone knowing that they were, in fact, the same author, they would lose all of their accumulated respect and credibility. More intimate circumstances are also imaginable, which do not require the on-line equivalent of celebrity. Take the example above of Phillip and Julia above, but imagine that they are corresponding under the pseudonyms Hector and Helen. The malicious Mallory may be mistaking Hector for someone else when she accuses him of being a deadbeat, but nonetheless Phillip must either give up his established relationship with "Helen," and write to her under another pseudonym, stop corresponding entirely, or he must overcome the stigma of the accusation leveled against him. In any case, he may wish to find some sort of compensation for the damage done to his on-line persona.

In the real world, many of the rights discussed in the next section hinge upon the use of the name of the person involved. In the real world, this may be a straightforward inquiry, [12] particularly where the question is simply whether the plaintiff's picture, or a picture appearing to be him or her is used. However, where the persona exists virtually, perhaps pseudonymously, perhaps even fictitiously, basic philosophical questions arise of what might constitute the persona's identity.

Determining whether someone had appropriated an image of me would be straightforward. Likewise, when a court looks to see what constitutes my 'identity,' the court knows where to look: at me. This is complicated only slightly when discussing my true text self on-line. Where can such an authoritative word be found if the on-line persona in question is an on-line persona which is actually created in a collaboration between several other people and me? We represent (or at least tacitly imply) to others that there is a single person which corresponds to this on-line persona. Perhaps we even give this persona a relatively believable name, for example Howard Roark (who bashfully explains to those on-line who care to know that our/his father was nuts about Ayn Rand). [13]

Nonetheless, what if Howard Roark engages in conversations on a newsgroup, occasionally getting a little didactic and philosophical – remember that the persona's contributions to the conversation are being created collaboratively or even in round-robin fashion by my collaborators and me. As often happens on news groups, subsequent posters to the news group quote selections from Howard's previous posts to provide context for their remarks, perhaps even a sounding board for their reactions. However, eventually posters rearrange Howard's remarks so that they are completely out of context and seem far more extreme and egotistical than they were originally. Assuming that this appropriation of Howard's statements and the resulting copying of his text would have been actionable if the original statements had been uttered by one person, who might raise the objection (if the claim is not one of copyright, which is familiar with the concept of joint authorship)? If the attempted claim were to fall under the right of publicity or privacy, or even defamation or libel, who is being injured? The connection of each individual author is even further attenuated than if this were, instead, a single author writing under a pseudonym. Yet collectively, the identity which belongs to them has been damaged. The creators' visions of the persona may diverge, and under each writer's tutelage the personality may diverge from that envisaged by the other authors, to the point where the character becomes so schizophrenic that whatever value it has (either through the relationships Howard develops with other people on-line, or, if Howard is, like Demosthenes, a writer or a columnist of some sort that others will pay to read) is lost. Can any of the component authors of the character sue the other authors for their miscreation of the character? Do any of the authors have a claim against a third party who calls Howard a schizophrenic nut?

Perhaps appropriate examples can be found in the realm of fictitious characters. Comic book characters, for example, are often protected, in addition to copyright, under trademark law. What are comic book characters but pseudonymous creations like on-line persona (particularly those which, like mutually created persona, are unlikely actually to correspond to the attributes of an actual person)? In almost all of these cases, however, the joint creation of the character is facilitated by institutional ownership of the character, rather than ownership by the creators. This, in part, may be to make it feasible to protect the character under regimes with heavy formalistic requirements (trademark) or simply because the problems of joint ownership would be too difficult. This model may be suited to institutionalized publishing. However, if collective authorship would limit proprietary interests over an on-line persona to those regimes which recognize joint ownership (i.e., copyright and trademark) then collective personae may not be treated on par with other personae. This would occur despite the fact that other on-line participants may have no idea that a given persona is the embodiment of more than one person. Contrariwise, in Ender's Game and its sequel, [14] Demosthenes' audience assumes (incorrectly) that the pseudonym must be the collaboration of a long series of authors. [15]

Although copyright law has long set a low standard for the inventiveness required for authorship [16] it does contemplate that there is an identifiable author. Therefore, the law clings to the perception (out of step with the decreasing level of creativity actually required in the work) that authors are a talented (itself a reluctant reduction from 'divinely inspired') lot, uniquely possessed of the ability to coalesce knowledge into useful expressions. [17] The focus on the text itself, and the general judicial practice in copyright infringement cases of comparing the first work to the putative infringement (as opposed to comparing the originality or lack thereof displayed by the second author [18]) speak of a modernist, deconstructive theory. Although a work may require only minimal creativity, and the Romantic ideal of the author may be out of fashion, it remains to be seen whether the concept of the genius-author can be dispensed with entirely.

In a public discussion forum involving a pseudonymous persona, perhaps named Pluribus, the actual 'speech' of the persona (the literal 'work' of the 'author') may do less to define the character than the analyses of what the persona says by other participants. As anyone who has regularly followed a newsgroup could relate, any on-line discussion tends to have bouts where participants choose up sides and take turns labeling their allies as insightful, and their antagonists as insensitive morons. A new participant can probably discover more about Pluribus and the other characters that inhabit the locale from reading about them than by reading their actual words. Pluribus' literal author (the person who composes the speech posted as Pluribus') has some limited control over the input of others in shaping the persona; she can always deny the other characterizations and defend her vision of the persona, and her interpretation, so long as it is reasonable, will probably be accorded deference by many of the other participants. [19] The bulk of the other participants, however, would have to accept her denial for it to be effective. At any rate, the putative author's control is not absolute, and the other participants in the forum do have a significant role in shaping the character. To cite another example, Demosthenes is initially cited as a war-mongering, ultra-nationalist demagogue, a characterization which may have been inspired by the text written by Valentine, but which was no doubt solidified by the critical perceptions of 'his' readers.

In a copyright sense, Pluribus undoubtedly contains the requisite originality for protection. Even the additions to the character which are contributed by other participants probably meet the threshold for originality. If both of these pieces are considered, what is the precise definition of the author of Pluribus? Indeed, out of many contributions, one persona has been produced. Will they be deemed co-authors for copyright purposes? Will the work be divided and copyright allocated for each portion to its respective literal author? [20] In this case, it may be much easier to identify the work and decide that it is worthy of copyright protection than to figure who may exercise those rights. This muddied perception of authorship and the contribution of societal context to the work seem completely to unravel the last vestiges of the Romantic author. In this situation, either a court would have to address post-modern concepts of authorship, the parties would have to rely on entirely different causes of action, or this character would be underprotected relative to other personae.

The many fora of the Internet also present different difficulties in finding appropriate avenues of protection. In some cases, as with newsgroups, listservs or e-mail, there is an opportunity to answer, to borrow a phrase from First Amendment jurisprudence, bad speech with good. [21] However, in other cases, there is little likelihood that a persona which has been injured can respond meaningfully. For example, suppose I decide to publish this paper on my personal web site, hoping that prospective employers or others interested in intellectual property and privacy rights might read it. [22] Suppose instead, that the Libertarian National Socialist Green Party prominently displays a link to my paper on their own web site, [23] and offers a review of the paper, saying that they believe it is "immensely important to all libertarian socialists in the U.S.; a leader in writing about privacy theories which we might use to protect ourselves from oppression by the self-hating PC masses."

Yet, because the review appears on www.nazi.org, not in a public forum, I cannot effectively disavow any association with the other views which may be presented on that site. I may disavow the association on my own site, but this will be an unsatisfying remedy for me; not only will those visiting the Libertarian National Socialist Green Party's site be unlikely ever to see the disavowal, I am actually publicizing the link to those who come to my site for other reasons. I could always take down or rename the document to which the link refers, but this would also deprive me of the ability to disseminate the work. Likewise putting a disavowal of the link into the linked-to document itself has the similar effect of tainting the work itself, and, as with an external disavowal, gives publicity to the connection to those who might not otherwise have known about it.

Moreover, the situation leaves me impotent in other ways as well, for the endorsement of my paper makes no false statement (indeed, the only empirically deniable statement made in the hypothetical quote is the true fact that I am writing about privacy theories). The site merely links to the document on my site, so there has been no infringing copy made. Lastly, there has been no statement in making the link that I endorse the Libertarian National Socialist Green Party.

We have now discovered different paradigms for identity in cyberspace. Moreover, we have also seen the difficulty that these various forms of identity present for traditional concepts, such as authorship or the distinction between physical invasion and textual identity upon which legal protections are built. Having laid out some examples of identity and other circumstances where the foundational concepts behind various legal regimes break down, we are now equipped to examine these causes of action in more specific detail.

The common law right of publicity is generally acknowledged to have come into acceptance in response to Brandeis and Warren's article The Right to Privacy .[24] From the very start of the formalization of the right, the question has been put whether the right is one of property, or an inherent human right. [25] Brandeis and Warren seem to hedge their bets, at one point saying that the right to privacy is not a property right, but that it is convenient to analyze it as such. [26] In addressing this question briefly, the distinction must first be made that in the context of interactions between private individuals on-line, where one person disseminates damaging information about the other, there is no governmental action involved. The right therefore is separate from the penumbra of privacy rights cast by the First, Fourth and Fifth Amendments. [27] Rather, Brandeis and Warren describe the right as "an instance of the enforcement of the more general right of the individual to be left alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed." [28]

However, the debate over whether the right to privacy is a mere property right or something more continues to the present. Libertarian policy advocates suggest that the right to privacy is like any other property, that individuals start out with the right to their private information. [29] They then must bargain for the consideration that they would receive for the release of that information, and the market controls its value. They can give the information away, perhaps even inadvertently, for nothing at all, or they can insist on a high enough price that those who seek the information may choose not to barter with them (at which point they have driven up the cost to themselves of getting the services or payment they would have received for the ability to use their information).

Brandeis and Warren, along with William Prosser, whose 1960 categorization of the different types of right to privacy actions enunciated those rights, [30] make no claim that the right of privacy is an inalienable right. In fact, both Brandeis and Warren and Prosser treat private information somewhat like trade secret information in that the plaintiff must work to keep it secret, and that it must be private, not public information. [31] However, neither suggests that once a piece of information has been disclosed it can never become private again, and both maintain that it is up to the individual to decide (subject to certain exceptions for public records). [32] In other words, unlike trade secret law, the mere fact that the defendant came upon the information through legitimate means (and that it is not copyrighted) does not make the information public and subject to the defendant's publication at will. Brandeis and Warren point out that facts such as a list of the letters written and sent by a person may be private information, although someone may have discovered the information, and the list itself (unlike the contents of the letters) is not protected by copyright. [33] Prosser analyzes at length the case of Melvin v. Reid , in which a former prostitute, formerly accused of murder (but acquitted), who had reformed her life and started a family, maintained an action against a motion picture producer whose movie documented her former life. [34] In that case, the facts were embarrassing and the plaintiff had taken steps to see that they were not generally known among her current associates, but neither were the facts private in the sense of being proprietary, or having been obtained illegally by the defendant. In fact, the facts were common knowledge among those who had known the plaintiff at that time. Finally, Warren and Brandeis point out that the right of privacy is not a matter of contract (including quasi-contract or implied contracts). [35]

To contrast these facts with the strict marketplace view of privacy, neither would Brandeis, Warren or Prosser make the right of privacy inalienable. Making the right inalienable would completely eliminate the market for personal information because even if individuals were given incentive and compensation for divulging their information, the marketer would not gain the necessary assurance that the plaintiff could not turn around and sue him anyway. However, the marketplace theory would allow a stranger (who had no contractual agreement for non-disclosure of the information) to use or release it. Moreover, in Melvin v Reid , for example, the marketplace theory would consider the information to have been released to the public, and therefore no longer proprietary, even though it had fallen out of public view. In short, the marketplace theory of privacy rights allows, in many circumstances, the default assumption that permission has been deemed given, often inadvertently or long in the past.

In regard to some of the hypothetical situations discussed earlier, one major problem with the invasion of privacy cause of action is the public nature of the Internet. Even in the most personally linked situation, that of a true text self, such as the example where Mallory tells Phillip's cyber-romance that he is a deadbeat dad, Phillip has put the persona out on the net. The persona has no existence in any place that could be considered "seclusion or solitude." [36] The problem for a cause of action which embodies the right "to be left alone," is that on one hand, the persona exists only on-line and can never get away from the putatively tortious conduct. On the other hand, the actual person never exists in the forum where the conduct occurs, so all the person must do is turn off the computer, trivializing the damages suffered. For all the more attenuated examples involving pseudonyms, the ability of the person to be left alone simply by dissolving the persona is even greater. Yet, with a true text self or a pseudonym in which the plaintiff is heavily invested (for example Valentine's Demosthenes, a personality which she has spent three thousand years building up to mythic status, or Phillip, were he operating as the pseudonymous Hector) the damage to the persona's reputation is emotionally significant. However, even if a court accepted that an on-line identity, particularly a pseudonymous one, bore a sufficient nexus to the plaintiff bringing the action, the defendant will likely argue that the nature of the on-line medium means that the plaintiff has implicitly consented to the invasion, which is a defense. [37] Although it might be consistent with most participants' views of their on-line actions to infer consent, such a holding would nonetheless have disturbing policy implications because it would seem to put every ordinary citizen on the net on par with celebrities, who are deemed partially to have given up [38] their legal rights to privacy.

Despite these difficulties, an invasion of privacy action may be a promising claim where the defendant has revealed true facts about the persona (e.g. that the creator of the pseudonymous lesbian persona is actually a straight man), [39] and where it is difficult to prove commercial damages. [40] The defense that the facts revealed about the plaintiff are true, only applies in a privacy action based on the theory of false light publicity. [41] Under the theory that the defendant had revealed embarrassing private facts about the plaintiff, the truth is no defense, so long as it is proved that the facts are indeed private. [42] This accounts, for example, for the Melvin v. Reid case, where the revealed information (that the plaintiff had been a prostitute accused of murder earlier in life) was true, but the action still stood. [43] Therefore, it is quite conceivable that facts such as the true identity of a persona would be considered private facts. Analogizing to trade secret law, it should not be difficult to show that the plaintiff has taken reasonable steps to ensure the confidentiality of the information. This conclusion is also based on an assumption that what would be a private secret for the persona (if it actually existed) is, reciprocally, a private secret for its alter ago. Such an action would also allow the plaintiff to recover tort damages, rather than merely special, economic damages, which would be the limit in a right of publicity claim.

Right of publicity actions exist mainly to remedy the commercial appropriation of the plaintiff's identity without her consent. [44] The cases have generally rejected the existence of a descendable common law right of publicity separate from the right of privacy. [45] Nevertheless, while the persona in question is living, the right could provide a viable legal remedy for appropriations of the persona's identity. [46] Although the law of the various states' may differ, in California, for example, a right of privacy action requires:

In White v. Samsung , the definition of "identity" was so broad that a robot designed vaguely to evoke Vanna White constituted use of her identity, causing the dissent to quip that under this definition, Christian Slater could not act without infringing Jack Nicholson's right of publicity due to the similarities in their styles. [48] As the court in Carson v. Here's Johnny Portable Toilets, Inc. said, "The theory of the right is that a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity." [49]

Under this theory, it appears that the requirement of celebrity is circular: a person will be considered a celebrity for these purposes if his identity can be valuable in the promotion of products. Under this assumption, it is fair to suggest that a person who uses an on-line persona would not fail for lack of celebrity per se. Consider the example of the Libertarian National Socialist Green Party linking to an on-line version of this paper. Under the test quoted in White, the party has definitely used my identity, and specifically my name, which I assume satisfies this prong. [50] Since the second prong only requires that the appropriation be to the party's advantage, offering my paper as an attraction on their site (which draws visitors) will likely satisfy this prong, particularly if the site sells banner ads, or merchandise on the site. The use is presumably without my consent, satisfying the third prong. Lastly I would try to prove that my reputation among legal academics has been diluted by virtue of the suspicion that I might actually be a Nazi, so it should be possible, with relevant expert testimony, to take the issue of injury to a trier of fact.

The preceding example may be the rare exception rather than the rule on the Internet. What if a true text persona is participating in a discussion group, and after going back and forth a few times, the person's words are reduced to a scrap, taken out of context, which other participants use to paint the persona in a damaging light? This example is much less likely to satisfy the commercial use and injury requirements. Moreover, what if the persona in question is a pseudonym? What if Demosthenes' words are taken out of context and are twisted in a damaging way? Worse, what if another author, assuming that the original Demosthenes is dead, takes it upon himself to start writing columns under the pseudonym? It is quite possible that the commercial prongs would be satisfied, but whose identity is being appropriated? It is not Valentine's identity (her true text self) because Demosthenes is very deliberately crafted to take on different and sometimes more extreme views. If it is Demosthenes' identity, either it may not be protectable, or no actual person my have standing to bring the claim.

Finally, even worse, if the persona at issue is the collectively 'authored' Howard Roark character, let alone the post-modern Pluribus (who is shaped by both its putative author and the participants in the forum), the identity being appropriated bears no direct relation to any of the possible plaintiffs in the suit. To hold that such a group of authors could maintain an action for the publicity value of their creation essentially would be to create another variation on a common law trademark, duplicative of the practice of registering trademarks in comic book or movie characters. To illustrate this, note that MGM/UA may hold the trademark in James Bond, so Pierce Brosnan can only own the rights of publicity in himself dressed up in a suit, and if he dressed up specifically as Bond without MGM/UA's permission, he might infringe the trademark. While Brosnan is alive, contrariwise, MGM/UA could not publicize James Bond using a picture of Brosnan without his permission (akin to Bela Lugosi's right to himself dressed as Dracula), despite owning the trademark. Each party has effectively blocked the other's rights. But if only the rights of publicity are considered, it appears to suggest that Valentine could not own rights of publicity in Demosthenes, for those would be the province of trademark.

I mention the trademark regime in this context only to make the point that while trademark appears to present the most effective means of protection for visual characters (from Fred Rogers in his Neighborhood, to Batman in an illustrated Gotham City), the regime does not scale well to the protection of individual personae in cyberspace. Most significantly, the registration requirements make it impractical for individual users to register their online identities. Moreover, from a First Amendment point of view, requiring government registration of identity before an individual could obtain certain legal protections as a speaker on the Internet, would very likely be unconstitutional under McIntyre.[51]

Unfair competition claims under the Lanham Act § 43a may represent a more promising avenue than trademark claims because of the lack of a registration requirement. White v. Samsung Electronics suggests that a section 43a claim would seem relatively similar to a right of publicity claim, with some different loopholes. [52] In that case, in addition to her right of publicity claim, Vanna White claimed that Samsung had violated the provision which reads:

In certain on-line scenarios, a similar likelihood of confusion might exist. In the situation of the Libertarian National Socialist Green Party's link to a copy of this paper, there may be an issue of material fact as to whether consumers feel that a link to my paper implies some endorsement of the party by me, although the defendant could probably show that Internet users are now savvy enough to know that web sites have little control over who links to them. Similarly, in the common situation on discussion sites where a portion of previous text is copied into new posts, newsreading software often inserts text indicating who wrote portions of the text. This might also imply sponsorship of the subsequent author's additional work, again, depending on how savvy the finders of fact might be.

Another difficulty for a Lanham Act §43a claim, however, is the requirement that the defendant use the word or symbol "in commerce" and "in connection with any goods or services." [56] Certainly, there are commercial applications which are possible, and it is possible that any web site may at a minimum be held to be offering a service. Nonetheless it is likely for many individual personae seeking protection that §43a protection will be unavailable because the putative infringer made its comments in a discussion forum, rather than in a commercial context.

Thus we must finally, and briefly, examine the copyright statute [57] for its applicability to the protection of on-line personae. The interests which we seek to protect are primarily concerned with the reputation of the persona, rather than with creation of literature in the grandiose sense envisaged by the Romantic theory of authorship. Nonetheless, as much of this paper has discussed, on the Internet, the author is often also the text. Perhaps instead of trying to imbue the text with ability to bring causes of action which the author would have if she herself were insulted or disparaged, a better approach would be to imbue the author with the protectable qualities that text has through copyright law.

First, there are many cases where personae on the Internet may be injured where a certain amount of literal copying is involved, making the perpetrators vulnerable to copyright law. One simple example is the copying of portions of previous messages on newsgroups and listservs. Reliance on literal copying is dubious, however, for there are many more cases where no copying is necessary (for example, the link from <http://www.nazi.org> to my paper). Furthermore, there are many cases where there may be a certain amount of copying, but that copying is protected by the fair use doctrine. Under Sony v. Universal Pictures , copying could be considered a fair use because often the copied portion is being used for non-commercial ends, or there is no effect on the value of the original work, because it was not intended for commercial distribution either. [58] It is even possible that, by participating in a forum such as news group, chat room, or listserv, any reasonably savvy Internet user should expect her contributions to be copied, and therefore may, upon posting, have granted an implied license to copy portions of the work.

However, the interest which we actually seek to protect is the reputation and good standing of the author, and/or his on-line persona (often one and the same). Perhaps, therefore, we should be more concerned with the moral rights of authors. The U.S. has only adopted moral rights protections from the Berne Convention with regard to certain pictorial, graphic, and sculptural works. [59] Nonetheless, the text of the convention would give authors both the right to have their works attributed to them, as well as the sweeping right "to object to any distortion, mutilation.. or modification of or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." [60] This would accomplish several goals necessary to the protection of on-line personae. First, unlike right of privacy or publicity claims, the author (or authors) would undoubtedly be able to state a claim for injury to the persona itself. Second, injunctive relief and statutory damages would be available, which would be important in conjunction with the third factor, namely that no requirement of commercial use would be necessary (as is the case with trademark and unfair competition claims). Finally, some have argued that, even without full protection against distortion, mutilation or modification to a work, a simple right of attribution would make substantial progress toward allowing authors to retain control over their works on the Internet, which would, in this case, include created personae. [61]

This analysis has been, I am sure, not methodical; it's purpose was not to show that no legal regime addresses any of the problems of unusual forms of identity on the Internet. Its purpose was not even to show that there is any single particularly common species of persona on the Internet the injury of which cannot be addressed through any existing legal regime. Therefore, I have not created a virtual grid of hypothetical types of personae and checked off each against every possible cause of action mentioned in this paper to show how each would protect or fail to protect each persona. As such, I have often skipped over particularly obvious examples of where a persona might, in fact, have been covered by a legal regime other than the one discussed in its regard. The object of this paper has merely been to highlight some surprising examples, philosophically and legally, where certain types of entities, identities, and personae on the Internet fall through the cracks of legal regimes which are commonly relied upon to address similar injuries in the real, meet-space world.

In particular, several notable deficiencies exist. First, defamation and libel depend on the falsity of the statement that has been made about the person or persona, and may not address many damaging remarks or practices which are not false. Second, the right of privacy may fail completely on the Internet because of the argument that, with the exception of private e-mail communications, information placed on the Internet is public. An on-line persona, unlike a person in meet-space, lives a completely public life, and therefore it or its proprietors (who themselves could simply log off the computer) may find it difficult to make a claim that their right "to be left alone" is being violated. Third, the right of publicity fails to cover most inappropriate or unauthorized uses of a person's name or image on the Internet because most such uses will be non-commercial, and thus foreign to that right. Fourth, trademark claims are impractical in protecting individual identity where registration is prohibitively cumbersome. Lanham Act § 43a claims might be more tenable, although it is unclear whether courts would hold that individuals use their identities "in commerce," sufficiently to satisfy the act's requirements. Finally, this paper has attempted to show the surprising result that copyright may actually present a more efficacious cause of action, at least in theory. In many cases there is either some literal copying (such as when a newsgroup or listserv post includes a portion of the post to which the author is replying), or the creation of a derivative work based on the persona's first work. Furthermore, moral rights of authors would be very effective at protecting these interests, were they valid in the U.S.

There is no one legal regime which promises to be particularly effective at protecting the integrity of on-line personae from damage and defamation (to use the term generically). Only the moral rights of authors under the Berne Convention combine both a) direct protection of text; and b) protection of reputation and other factors relevant to the integrity of on-line personae. Perhaps the best practical approach is to move for the ratification of the Berne Convention provisions on the moral rights of authors. Nonetheless, this analysis has also demonstrated the extent to which traditional theories of intellectual property fail to protect appropriate and vital personal interests on the Internet.

[fnA] Adam White Scoville is a 1999 graduate of Boston College Law School and for two years has been the Director and of the Intellectual Property and Technology Forum at Boston College Law School. He is the author of Clear Signatures, Obscure Signs, an extensive analysis of digital signature and certificate authority legislation and model laws around the country, to be published this month (June, 1999) in the Cardozo Arts & Entertainment Law Journal and the Intellectual Property and Technology Forum at Boston College Law School. In 1997 and 1998, he was also a law clerk with the Center for Democracy and Technology. This paper is a work-in-progress. Comments or suggestions are welcome. Please e-mail the author at adville@aya.yale.edu. However, please obtain permission before quoting from or citing to this work.

[2] Note that not all tortious conduct on-line carries this level of abstraction. This exception arises when the putative defendant knows the plaintiff in meet-space, or when the plaintiff is a public official. In such a case, an on-line persona may make statements about a real world person. Indeed, the on-line persona may not even know if the subject of the statements has an on-line identity or not, and so the level of abstraction presented to a persona would not exist. The landmark incident in this regard was Sidney Blumenthal's libel suit against AOL for comments by AOL commentator Matt Drudge that Blumenthal allegedly beat his wife. Though it may seem obvious, Drudge was not saying that the owner of an on-line persona was a spouse abuser, he was saying that the real world person was abusive.

[16] See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (holding that photographs, although largely a creative process undertaken mechanically, are still a form by which "ideas in the mind of the author are given visible expression."); Bleistein v. Donaldson Lithographic Co. 188 U.S. 239 (1903) (authorship for copyright purposes not limited to fine art to the exclusion of commercial illustration, although the court focuses largely on the nature of the work over the inspiration of the author). But see Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991) (holding that the alphabetical arrangement of names and phone numbers in a white pages listing was not 'original').

[20] If so, this may present a situation more similar to "blocking patents" than could generally be imagined in the copyright scenario. In copyright, in general, the author of a subsequent, derivative work must obtain the permission of the original author, but since the threshold of originality for copyright is low, the original author could probably independently invent an equivalent work. For example, a screenwriter would need permission of a book's author to make a screen treatment of the work, but if he has done so, the book's author need not get the screenwriter's permission before writing his own screenplay of the book. In patent law, protection against independent invention may force an original inventor to obtain permission before incorporating incremental improvements patented by a subsequent inventor. Here, the piece which a participant in the forum adds to the character may incorporate so little of the original work as to mean that it would not be a derivative work. Even more likely, the additions of the subsequent author may be discrete and identifiable enough that if Publius' literal author incorporates the new attributes (which may have become central to the persona's perceived platonic essence), they may be easily identifiable to the other author, thus requiring that the subsequent participant's permission be obtained.

[51] See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). An author is constitutionally "free to decide whether or not to disclose his or her true identity." "[T]he interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry." Lastly, (in dicta) this is true even when the decision is motivated "merely by a desire to preserve as much of one's privacy as possible," as opposed to political concerns. Id. at 341.