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Thursday, April 17, 2008

I Want a Famous Face

Teaching Moore v. Regents of California in my Reproductive Technology and Genetics Class this past week reminded me of a side issue I was thinking a lot about when writing my forthcoming article, "The Right Not to Be a Genetic Parent?", but never resolved. Given the large number of IP scholars we have visiting the blog this month, and even more in the readership, this seemed like a good audience to enlist in helping me in my thinking.

It starts with my love of pop culture, and a not-very-successful MTV reality TV show called "I Want a Famous Face". The premise of the show was that MTV would take people who want to look like their favorite celebrity, Brad Pitt in the pilot, and pay for plastic surgery, wardrobe change, etc, and follow the transformation.

Now the "right of publicity" tort might cause a problem for the actual show, see, e.g., Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 127, 206 (1993).  But as I understand the tort as it functions in most states, it makes tortious the unconsented use of a name or likeness by someone famous for commercial purposes.

This got me thinking, what about someone not famous, and the appropriation of a face is not used for commercial purposes? Say, for example, that someone (however ill-advised) wanted to have plastic surgery to transform their face into my face just because they liked it.  And just to purify the example, imagined that the details of my face were acquired without committing some other privacy related tort, so imagine they merely watched me on my way to work and sketched my face and brought it to their plastic surgeon and said "do this" (I don't think the sketching would be tortious, but I am happy to stand corrected if I am wrong).

Would this violate any law? As best I can tell, in most states, no.  Should it?  That turns out to be an even more interesting question. 

A number of the traditional basis for giving individuals a property entitlement to do not seem a good fit here (hence the analogy to the kind of entitlements I was interested in my article and the Moore court is interested in, that court explicitly considered but dismissed an analogy to the right of publicity). 

It is hard to tell a desert story justifying the allocation of the entitlement here.  I have invested no effort in my face giving me a claim here, it is not clear why I "deserve" an entitlement to prevent copying of my face.  The same problem is evident when the theory is framed in economic rather than moral terms, as is familiar in intellectual property discourse, using entitlement as an economic incentive for productive labor.   There is no productive labor to incentive here; your face is not something to invest in or develop.  This is an important distinction from the traditional right of publicity case (e.g., having someone imitate Bette Midler for a car commercial).  The celebrity has invested in their reputation, becoming famous, and the "copier" would be free-riding on that.

One could instead focus on a Lockean self-ownership of the body sort of a story, but putting to one side the familiar critiques of that approach, it seems to me the non-rivalrous nature of copying my face rather than taking part of my body might make a significant difference. From a welfarist point of view, it is possible that the illfare I experience from having someone else have copied my face might be outweighed by the benefit to others if they like my face a large amount, especially if there are many such persons and we are aggregating. 

The most promising basis to ground the pre-theoretical intuition seems to me to be what we might call the "personhood" theory of property.  See, e.g., Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 971-90 (1983); Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 331-50 (1988).  This theory would claim that entitlement not to have one's face duplicated  should be allocated to an individual because that entitlement is inextricably intertwined with her personhood.  Can this claim be sustained as a descriptive matter? I'd experience displeasure, but would I really say that my personhood has been breached? My understanding is that the personhood theory appears to be more on the fringe in IP, does this problem suggest it needs to be more core?

Lots of questions and few answers, but I've been thinking about this and thought others might find it interesting or have some insights....

Posted by Glenn Cohen on April 17, 2008 at 09:53 AM | Permalink


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Why do they do it? Want to look like these plastic dolls?

Posted by: KTea | Apr 24, 2008 2:46:03 PM

...the conduct in question does not promote individual well-being, or that even conduct that does promote well-being can lack virtue.

If one looks at a total societal picture, over time, than one could indeed conclude that conduct that promotes individual well-being could lack virtue. And, of course, your comment concerning how one defines "well-being", with the potential attendent consideration that what is good for one at an instant moment may be negative over time for self and or society, is very true.

Posted by: Jonathan | Apr 18, 2008 12:42:31 PM

Hey Patrick,

Thanks for the correction. If your claim is that the conduct in question does not promote psychological and emotional well-being, I think your theoretical task is significantly more arduous, given that there are quite plausible reasons for thinking that the acts do promote well-being (though I am not suggesting the argument is closed, only that it is quite difficult to hear an individual tell you how much better they feel and tell them in fact that what they have done does not promote their well-being).

As for whether conduct that promotes individual well-being can ever be non-virtuous, that is a really interesting philosophical question, which I did not mean to beg. I suppose, like anything else, it depends on what we mean by "well-being." But I do agree that to make the point you want to make, you have to either conclude that the conduct in question does not promote individual well-being, or that even conduct that does promote well-being can lack virtue.

Posted by: Daniel S. Goldberg | Apr 18, 2008 12:22:30 PM


I'm not sure what you're referring to when you characterize my comment as claiming "that this particular brand of conduct lacks virtue in spite of its promotion of individual well-being," as that begs the question at hand from my perspective, as I thought to at least imply that it in fact does not promote individual well-being, particularly insofar as that is not understood in purely hedonic or subjectivist terms. Inordinate desires are symptomatic of psychological and developmental processes gone awry (hence I believe we can articulate, at least roughly or broadly, normative criteria for what constitute physical and psychological health and well-being or human flourishing in general; put differently: we can narrate or chronicle the *healthy* development of the various capacities or powers of a human being). With Richard Kraut and others, "I reject the maximization of value and the construction of well-being out of a person's real or hypothetical desires," and I assume "faring well includes healthy psychological development and functioning" (What is Good and Why: The Ethics of Well-Being, 2007). Inordinate desires that dictate our decision making and everyday conduct are examples of heteronomy not autonomy (which is only one good among many) and are not conducive to human well being and flourishing. Conduct that promotes individual well-being or human flourishing is, necessarily, virtuous conduct insofar as it contributes to the sovereignty of good.

Posted by: Patrick S. O'Donnell | Apr 18, 2008 11:55:29 AM

[M]y only point to Frank was that distinguishing cosmesis on the basis of health alone is unlikely to establish the ethical claim I think y'all want to make.

Very true!

Posted by: Jonathan | Apr 18, 2008 11:42:11 AM


I am a huge fan of virtue ethics (in fact; it will be a central part of my dissertation). And I certainly would agree that the connection between virtuous conduct and health is vast and deep. The question, however, is whether conduct that undeniably promotes an individual's emotional and psychological well-being is unvirtuous conduct. For quite tenable reasons, my understanding is that you and Patrick see that this particular brand of conduct lacks virtue in spite of its promotion of individual well-being.

I have no quarrel with that argument; my only point to Frank was that distinguishing cosmesis on the basis of health alone is unlikely to establish the ethical claim I think y'all want to make.

Posted by: Daniel S. Goldberg | Apr 18, 2008 11:01:11 AM

once we expand concepts of health -- a term Glenn specifically avoided in his comments -- to include mental and emotional well-being, which we obviously should do...thus, declaring certain procedures cosmetic because they are nontherapeutic seems questionable if even cosmetic procedures can and often do significantly augment psychological and emotional well-being.

In continuing my thoughts on virture, and Patrick's addition of the idea of inordinate desire, the term health ought also include a consideration of the virtuous desire of the individual at hand. I would hold this to be a different matter than psychological and emotion well-being, at least as a superficial consideration. Thus, even if a cosmetic procedure to make one look like (for instance) Charlize Theron or Brad Pitt would enhance a person's happiness psychologically and / or emotionally, should the procedure nonetheless be unavailable due to the unvirtuous, inordinate desires compelling the individual to ask for such a procedure?

Or, are such considerations of psychological and emotional well-being more of a normative justification of such procedures and, therefore, on a case-by-case basis, no real attention should be paid to the desires motivating such individuals?

Posted by: Jonathan | Apr 18, 2008 10:03:34 AM

I don't necessarily disagree with Frank's general take. The point I generally tried to make is that attempting to distinguish cosmetic surgery on the grounds that it is not therapeutic is conceptually arduous, especially once we expand concepts of health -- a term Glenn specifically avoided in his comments -- to include mental and emotional well-being, which we obviously should do. (Shearing such phenomena from an overall concept of health has a painfully long and deep history in the West, and has had devastating consequences for a variety of illness sufferers, especially those suffering from mental illness).

Thus, declaring certain procedures cosmetic because they are nontherapeutic seems questionable if even cosmetic procedures can and often do significantly augment psychological and emotional well-being. Of course, as Peter Conrad points out in his recent book on medicalization, the fact that medicalizing phenomena can have beneficial effects on an individual does not negate that the phenomena has been medicalized.

My suggestion to Frank has generally been that I think it's important to engage this issue in thinking about cosmetic surgery. Being a devout later Wittgensteinian, however, I am generally untroubled by the lack of a neat definition distinguishing cosmetic from "medically necessary" surgery. I think we can still do a great deal of meaningful work unpacking the concepts without any such distinction.

Posted by: Daniel S. Goldberg | Apr 17, 2008 11:46:40 PM


Yes, to your question. Frank Pasquale has blogged on this over at Concurring Opinions and I largely agree with his take on matters (and Daniel Goldberg sees things a bit differently if I recall, a viewpoint I respect but...). I think I can, however, appreciate cases in which the desire to "look better" arises from the possession of physical features that (many) others deem ugly or grotesque and thus tend to draw an unusual amount of attention towards one's physical appearance. In such cases the motivation is not likely a surfeit of narcissistic vanity or clearly perverted preference but ultimately a desire to fit in, to be like everyone else (more or less; and no doubt one might have a distorted perception of what that in fact entails). Of course there are no bright lines here (and thus not to mention sorites-type problems), and even where there are relatively distinct lines, I'm not certain as to who we authorize to define or police them, thus I also appreciate the point about the specific legal context (we cannot always save people from themselves but sometimes the State has a positive duty to do so when private choices cause unacceptable collective costs and burdens; moreover, as cognitive psychologists and social psychology have made plain (and the Hellenistic philosophers well understood), people are not invariably the best judge of their own interests, etc.). And it is indeed a matter of degree: so I would tend to be (analytically!) moralistic about those cases (in addition to the one at issue) in which people are routinely resorting to cosmetic surgery in the effort to attain "idealized" images they've unreflectively internalized, images generated by a capitalist culture hell-bent on conspicuous consumption, and which tend to entrench or facilitate wishful thinking, states of denial or self-deception in ways that preclude or distort attempts at self-knowledge conducive and critical to Liberal (yet generalizable) conceptions of personal moral autonomy (in which we endeavor to promote, for instance, truly rational and 'free' choice).

Posted by: Patrick S. O'Donnell | Apr 17, 2008 4:42:47 PM

"Law student,"

Someone who copies your face is indeed benefitting from the efforts you put into it, but such a thing would be worthy of analysis, I would think, only if one could truly say that any alteration made to hair, makeup, and other non-genetically determined visual appearances were original to you and not the efforts of a good color matcher at the Nordy's make-up counter, an excellent hairdresser trained to modify hair to fit one's face, good developments in the cosmetics and skin treatment industry, and indeed, any magazine or other source of information indicating that "Yes, for women with this sort of angular face, the Beckham short bob is best."

Posted by: Jonathan | Apr 17, 2008 3:30:20 PM

"Law Student" -- Well said! Though I wonder how many of those investments can be reproduced by the surgeon's knife?
It also made me wonder whether there have ever been lawsuits claiming intellectual property to something like a hairstyle? I am thinking of that summer when all the women I know tried to get the "Rachel" hair cut from Friends, not to mention the famous Meg Ryan bob, see, e.g., http://www.hairboutique.com/TIPS/tip1064.htm. Maybe one of the IP scholars in the audience can tell us...

Posted by: I. Glenn Cohen | Apr 17, 2008 3:28:44 PM

"There is no productive labor to incentive here; your face is not something to invest in or develop."

This is a comment only a man could make. As a woman, I've been "developing" my face since I was a young teen. This includes moisturizers, cleansers, etc. that have been used to maintain my skin. Not to mention the make-up techniques that were honed and developed to present my features in the best possible light, and the haircuts I have tried to flatter my features. Someone who copies my face is surely benefitting from the efforts that I have put forth.

Even assuming that the care of my skin did not impact my physical features, the effort I put in make-up and hair presentation should qualify for some analysis derived from right of publicity cases. Most women have spent many hours developing a "look" that flatters her features. Accordingly, the argument that a face is not something that you "invest in or develop" should not be dismissed so quickly, especially for women.

For example, a particular make-up technique will look best only on a particular kind of face. Why should someone be able to copy that face and then presumably profit from the make-up technique that the woman herself developed for it. This would also apply to a corresponding hairstyle.

Let me be clear that I am not saying that the argument here is strong, but I think you may have looked something here.

Posted by: Law Student | Apr 17, 2008 3:07:41 PM

Thanks for the great comments so far. I definitely agree that there is a large meta-question lurking in the background here which has to do with how much the law should take preferences as given and should take their satisfaction to be a good, versus a perspective that would treat satisfying preferences prima facie as a good but impose gateway conditions as to what counts as a "valid preference," versus a perspective that would dispense with preference satisfaction as a good altogether. This would of course lead us into familiar philosophical arguments about happy slaves and utility monsters. I myself tend to lean to the second version, and particularly like the account given by Wayne Sumner in Welfare Happiness, and Ethics (1996), but this is a much bigger conversation.

In the medical context (I was tempted to say "health" but these examples might lead one to contest whether that label is appropriate), I also think the answer to the question might vary by legal context, in particular between state funding for X, vs. state intereference with the use of private money to buy X.

All of this feeds into a familiar question for bioethics on whether the treatment/enhancement line is a valid one. On this question I too would recommend Elliot's book, especially his chapter called "Amputees By Choice," which follows the development and attempt to get a DSM-IV classification for Apotemnophilia, a condition in which people are obsessed with the idea of cutting off their limbs. The condition is often highly treatment resistant, and there have been a number of cases where patients, refused amputative surgery, have attempted self-amputations. Maybe I will blog more about this incredibly interesting issue (and its relationship or lack thereof to state funding for sex re-assignment surgery for the trans community) another time. We had Carl and a number of others for a fantastic conference at Harvard Law School's Petrie-Flom Center last year http://www.law.harvard.edu/programs/petrie-flom/workshops_conferences/Conferences.html.

Patrick and Phil - Am I right in reading your statements so far to imply that analytically treating cosmetic surgery to look better (i.e., I want a smaller nose) vs. to look like someone else, as suffering the same vice (though perhaps in different degrees?) What if, as Jonathan points out, it is not fame per se but the search for a "platonically beautiful" face that leads one to copy some random person, rather than a celebrity?
I like the idea of a new sin, Thou Shalt Not Covet They Neighbor's *Face*

Posted by: I. Glenn Cohen | Apr 17, 2008 2:42:16 PM


Yes, indeed. I am getting at something like that, but avoiding the more theological language involved with the misallocation of resources and societal rending due to inordinate desire.

Hmm - "Plastic surgery undertake to make one look like another" - seems to fit nicely in a "new deadly sin."

Posted by: Jonathan | Apr 17, 2008 12:57:10 PM

Your particular face aside, Glenn, looking at social visual theory (not sure of the exact term, I'm flying seat-of-the-pants), there are certain traits of faces and proportions that most of humanity finds appealing, from what I have read. Could one posit a Platonic ideal face, whereby any other face is more or less attractive in comparison to that "face in heaven" (where one finds the symbolic chair and perfect felinity of the cat as well), and therefore, in seeking to emulate the ideals of the Cohenic face, the individual is only seeking to emulate those traits about your face which make it attractive in a platonic sense, and therefore, only possessed by you in a limited sense?

Posted by: Jonathan | Apr 17, 2008 12:53:27 PM

Following up on O'Donnell's point--where is the concern about the shallowness and vanity self-evident in surgical self-alteration for the vapid purpose of having a famous face? Carl Elliott's book Better than Well reflects on the problems here in a smart way...and much more compelling than any comparison of "welfare" and "illfare" for the famous-faced and those that might enjoy them.

Posted by: Phil Duncan | Apr 17, 2008 12:27:29 PM

While I appreciate the legal questions this raises I can't help but think the fact that people have such desires--and might be capable of bringing them to fruition--is a disturbing instance of the larger phenonmenon of inordinate desires (and a corresponding sense of entitlement to their fulfillment), which seems to this reader to be increasingly ubiquitous in affluent societies, and includes trickle down and spillover effects for those individuals and societies who can ill afford such things. Relatedly, it is symptomatic of a misallocation or waste of precious resources, that is, money, skills, goods, and so forth, that would be better dedicated to individual and collective ends that, upon reflection are more "rational" (where rationality involves not just reflection and deliberation about means to ends, but an examination of the rationality and value(s) of our goals and ends) insofar as they contribute to human flourishing. Perhaps Jonathan is saying something of this sort with the suggestion of the relevance of virtue or equity theory.

Posted by: Patrick S. O'Donnell | Apr 17, 2008 12:07:06 PM

Thanks Jonathan. I totally agree that this is the intuitive justification for the straightforward right of publicity case. Notice, though, how the case that I posit (which involves a non-famous person and non-commercial use) makes this justification a more difficult fit. Unlike the celebrity who *has* invested in his reputation, the avg. Joe (me, in this case) has not. Now perhaps you might shoot back that the avg. Joe has invested somewhat in his reputation, for example by being nice to people and having a good social network of friends, etc. On the other hand, it may be an ill fit for the reason why someone is selecting my face to copy. Someone might want the face just because he finds it particularly handsome (again, unlikely in the case of copying my face, but I put that to one side ;)), and would indeed prefer that others in his social circle not even know the "original" personally, or even that he exists.

Posted by: Glenn Cohen | Apr 17, 2008 11:02:37 AM

I wonder if the focus here should be not on the person with the right of a famous face, but rather on some form of virtue or equity theory. My thought is that this reasoning would run something along the lines of, "It is not virtuous to seek to imitate the likeness of those who earn money from that likeness through physical alteration." One could see a difference between this and a "celebrity entertainer" or satire artis who works through skill to develop look-alike qualities. (Jim Carrey's imitation of Clint Eastwood comes to mind.)

Alternatively, one could posit that "The entertainer you are seeking to emulate has (hopefully) spent time and money building up the skills and talents now in demand in the market. It is not equitable that you be permitted to take advantage of that image without development of similar skill and talent."

I see some difficulties and distinctions that would need to be made, but this is just flyover reasoning at this point.

Posted by: Jonathan | Apr 17, 2008 10:47:55 AM

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