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Mainstream, VOL 62 No 4 January 27, 2024

Privacy and Publicity: Consumer culture and identity in United States | Sunita Samal

Saturday 27 January 2024, by Sunita Samal


Abstract: The lady or gentleman is the person who only carries out work with the help of ‘destruction’. Human works can be summed up in two actions: destruction and construction. The more the work is nothing other than destruction, the more it is truly human and noble. The peasant only produces destructive work who has never desires to destroy something. Like ‘destruction’,the process of ‘forgetting’ is essential action of any kind as Nietzsche argued.

Introduction: As Roland Barthes put that is the age of photography corresponds precisely to the irruption of the private into public. Rather, it is to the creation of new social value which is the publicity of the private. Here, the eyes are no longer the ‘mirror of soul’ but it is carefully constructed advertisements. Unlike the representational use of imagery in traditional books whereby the image is subordinate to and consistent with written text—Le Corbusier’s arguments are to be understood in terms of never—resolved collisions of these two elements. In this unconventional manner of conceiving a book, one can see the influence of advertising techniques. As in advertising, the strongest effect is achieved through the impact of the visual material which is public.

Privacy is Out of Picture: The traditional sense of privacy is now not only scarce but endangered under attack. It is better protected legally than with boundaries. This situation may be traced back to the debates over the ownership of the image that developed with photography. The right to privacy has become right to remain ‘out of picture’. In fact, this new reality is first and foremost a question of the archive. The archive has played an important role in the history of privacy, even in the history of history. Here, the archive is private and history is public.

Modernity then coincides with the publicity of the private. But what kind of space results from this redrawing of boundaries? The space of archives is very much affected by this transformation. If we take the case of architecture, it is organized by the way we think about the relationship between inside and outside—private and public. With modernity, there is a shift in these relationships—a displacement of the traditional sense of an inside as an enclosed space established in clear opposition to an outside.

The concept of the ‘machine age’ has served the critical purpose of sustaining the myth of the ‘modern movement’ as an autonomous artistic practice in which the artist/ architect is interpreter of the new industrial reality. Critics interested in sustaining this myth are those who, under labels such as ‘machine age’ put together in such different attitudes toward the industrial reality as, for instance, the futurist approach. The difference, however, are more striking than the similarities. Le Corbusier distinguishes between art object and everyday object. He does not deny the individuality of artistic creation. There are three key words: permanence, passion and purification. The first two are associated with art and the third with the everyday object. In his books and articles Le Corbusier borrows the rhetoric and persuasive techniques of modern advertising for his own theoretical arguments and manipulates actual advertisement to incorporate his own vision and thus blurring the limits between text and publicity.

In his book ‘The Making of Modern Advertising’, Daniel Pope says in modern era, extends from 1920 to the present and is defined as the era of market-segmentation’. At this point, the market place begins to be transformed from production for mass consumption. Here, the audience in this context becomes the ‘product’ to be sold to advertisers. The image used in the text and in advertisement is same.

Mass-Culture and Everyday Life: The conventional view portrays modern art and architecture as high artistic practice established in opposition to mass culture and to everyday life. It has focused on internal life of the supposedly autonomous, self-referential object made available to a detached viewing subject an art object. In so doing it has neglected the historical evidences of modern architecture’s continuous involvement with mass culture. It is actually the emerging systems of communication that came to that are the true site within which modern art and architecture only becomes modern with its engagement with the media.

With the growth of mass consumer culture and the advertising industry in the twentieth century appropriation of litigation increased significantly. Here, plaintiff sought to recover lost profits from the unauthorized use of their images rather than compensation for shame, humiliation or emotional distress. The shift is to one oriented from promoting the integrity of an individual’s identity to protect its economic values [1]. The tort action for commercial appropriation initially rooted in privacy interests eventually eclipsed by a profit-oriented right to publicity [2].

Scholars have argued that emphasis on profit over privacy was a response to the development of an American celebrity culture in the first half of the twentieth century. By 1950s, celebrity, particularly from film background, had become a source of immense economic value, has for decades been the subject of legal writing and commentary. In 1960, William Prosser in his well -known law review article mentioned that privacy was one of the first to observe that appropriation of tort that had moved far from its original concern with protecting dignity and privacy. Several Scholars have similarly noted that the early association of appropriation claims with such intangible attributes of the self as dignity and integrity of person as property-based conceptions of the legal status of identity have come to the fore [3].

Why was the tort action for commercial appropriation of identity initially rooted in dignitary and privacy interests eventually eclipsed by a profit-oriented ‘right of publicity’? The rationale was that a person who made a business out of publicizing herself could not legitimately claim that her dignity or ‘privacy’ had been injured.

The advent of celebrity culture did create significant publicity value in star image. It does not explain why the unauthorized commercial use of the persona, once regarded primarily as an injury to one’s dignity and reputation, came to be viewed as principally, if not exclusively an economic injury.

The basic argument is that the law of appropriation shifted its register in response to changing public views on the morality of advertising and mass consumption. In the last decades of nineteenth century, when prevailing middle class values were modesty and self- restraints, advertising and consumerism were associated with forbidden temptation and morally illicit [4].

By 1940s, the cultural meaning of mass consumption had entirely transformed. The United States had become a celebrity culture and a consumer culture obsessed with conspicuous consumption. Being publicly associated with products and being seen by the public as an endorser of products, were no longer regarded as humiliating and disrespectable acts, but rather, in many cases glamorous and prestigious. The right of publicity eclipsed the right of privacy when modern consumer culture came to see loss of profit as the more serious and probable consequence of the unauthorized commercial exploitation of a person’s image rather than harm to one’s dignity or emotion.

For much of the nineteenth century, the core values of the middle-class had been anti-consumerist plain living, perpetual work and compulsive saving. People were encouraged to focus on moral and spiritual development not external appearance. Critics feared that upsurge in desire created by the new undermine the moral foundations of the self.

Commercialization of Identity: The crisis arose from the convergence of two new social forces such as photography and mass advertising. Advertisers stole portraits of individuals from photography studios and used them in advertisement without consents of the subjects. By 1920s, earlier moral restrictions on consumerism and material acquisition had begun to weaken. Anew spirit of materialism, sensual indulgence was begun to take root in USA. As the commercialization of the identity took on an aura of prestige, the argument that the unauthorized advertising use of one’s image subjected one to extreme indignity and became difficult to maintain.

Americans used a variety of cultural texts- from literature to art to fashion shows—to evaluate the rapid changes occurring around them and re-envision new relationships between goods and people. The key agent in the creation and legitimation of consumer desire was advertising. Print advertising for products and services was well established in USA but its nature and role in American society changed substantially in the latter half of the nineteenth century. By 1880s advertising’s principal purpose was to generate desire and attempt to influence buyers by any means possible [5].

It was widely believed that the photographic portrait is particularly of the face-captured the essence of a person. These were not simply a record of appearances but a symbol of inner self—a window in to the soul. Professional photographers developed a rationale which held that the true photographic artist treated surface appearances as expression of deeper inner reality [6].

By the end of nineteenth century, most publications considered advertisements as a vital source of revenue. Images became an important part of this struggle. Advertisers especially favored photographic images of human face as a means of attributing attention of goods by imbuing products with what was known in the trade as ‘human interest’.

Historians have regarded the period between 1905 and 1920 as a transitional era between the anti-consumerism of the late 19th century and the modern mass consumer society. In this era, there was a revolution in manners and morals among the middle and upper classes that led to the weaking of traditional values that had once vigorously mediated between people and expanding market economy [7].

Courts in the interwar period recognized the property like nature of personal images and that models and celebrities regularly licensed their names, images and identity to advertisers and manufacturers. They also acknowledged that the late nineteenth century culture of anti-materialism was no longer the backdrop against which appropriation claims were brought. After World War II, courts finally began to reject the idea of commercial appropriation of identity as a dignitary harm and re-oriented the tort from a right to ‘privacy’ to right of ‘publicity’.

In the 1950s, the celebrated era of postwar influence and mass consumption, court began to formally recognize ‘right to publicity’—a purely pecuniary interest in the commercial exploitation of identity distinct from right of privacy. Under this, new ‘right of publicity’ damage would be computed in terms of the value of the publicity appropriated by defendant rather than in terms of the injury sustained by the plaintiff. A decade later, some states had adopted a ‘right to publicity’ protected the pecuniary interest in identity with identity broadly defined as representation of one’s persona [8].

In some states, the new appropriation tort merged dignity and property interests’ recovery was to be based both on an individual rights of privacy and on his economic interest in his personality. As the mass media proliferated in latter twentieth century and as the commodification of personal image continued to be a source of status and profit, both celebrities and non-celebrities became increasingly protective of the income- generating potential of their images and encountered a legal regime that was friendly to such interests.

This issue is not so much the right to privacy at one end or the need for publicity at the other as it is the best way to balance private interests and public needs. The status of slave and serfs is defined, in part, precisely by an absence of any right of privacy—that is a realm exempt from the purview of their owner and masters. In recent times, a woman’s right to have an abortion has been framed in terms of her right to privacy in matters of personal morality. In short, privacy is inherently an ethical concept that is understood to represent something other than an individual’s obligations to show and talk. In this sense, the private also implies the secret which an individual may share at his or her discretion with a select few rather than with society as a whole [9].

Sense of Privacy in America: George Bernard Shaw noted that an American has no sense of privacy. He does not know what it means. There are no such things in the country [10]. Those who framed the constitution were so disquieted by this emphasis on public rights and obligations that their first ten amendments passed in 1791, provided a veritable Bill of rights—that is rights reserved for the private person. But ‘Patriot Act’ allows federal law enforcement agencies to collect private information on citizens for the sake of national security, but also in the debates on whether private companies can collect and share financial, medical, consumer data or tracking individuals’ access to websites. The issue is not much the right to privacy at one end or the need for publicity at the other as it is the best way to balance private interests and public needs. Long after the civil war ended, bitter struggles revolving around poll taxes continued to plague the struggle for equal and full citizenship. It is also necessary for citizens responsibilities.

The public issues in America are as old as the notion itself. Various reports have indicated that employers are giving millions of employment and salary records to outside companies which share the data with interested party [11].

We thus enter the present situation in which privacy is guaranteed not by personal behavior but by federally mandated legislation. The concern for privacy has thus moved from the dusty realm of legal theory to the glare of public interest. As classical Greek philosophy pointed out, technology advances by leaps and bounds: morality advances very slowly if at all. It seems evident that all is not well in this larger realm. American and all those who partake in the new worldwide information age, live in a world in which parallel rights are constantly articulated [12].

Amitai Etzioni (1999a) went on to verge for the establishment of a legally binding international regulations of privacy that would hold that any personal information about the citizens of its member countries cannot be used without the citizen’s consent. As we are not told how such technology can enhance privacy instead of control it. We are left with a sentiment rather than a new science. However, it is clear that the concerns over the effects of invasive communication technologies on individual privacy are deep and widespread.

What Americans witness at the level of public opinion is a desire for privacy but at the same time, a demand for maximum access to information. Whether such digital development including Internet constitute a threat to privacy or are simply a characteristics of advanced computer system is a matter of debate. At this stage, the technology must be able to distinguish between national security needs and personal anonymity; between corporate needs and personal identity and between corporate mergers and group privacy. The erosion of privacy is not simply a matter of individuals, but spills over into the nature of business as a whole.

In a democratic society like USA, there is no simple solution to resolve the conflicts between public interests and personal claims—they are constantly mediated and refined. Indeed, the greatest danger is a final resolution that ultimately could result either in some form of dictatorship at the end or anarchy at the other. It is therefore encouraging to see in the 2006, revisions of the PATRIOT Act, provisions were added to protect the right of privacy and to minimize invasions of random searches.

The endless stream of television programs that features self-revelations of sexual preferences and longings, marital breakdowns and extra-marital affairs move America from merely registering public opinion into expressing in public. The high wall between the public and private has been broken down. Alexis de Tocqueville long ago pointed out in ‘Democracy in America’ [13] a difference between Europeans and Americans. The former speak freely for the record and willingness of the latter to give their opinions on a wide range of issues, even those of which they know little.

This is not a question of either for privacy or for publicity but of safeguarding the person while extending the realm of information and knowledge. Although the content of the privacy versus publicity debate is universal and long standing, its context has become uniquely Americanized. Although we live in a world thoroughly dominated by market forces and saturated by culture of consumption writes Jonathan Kahn, people may well feel legitimate distress at having their images made serve the economic needs and interest of others.

Concluding Observations: Perhaps the most extreme presentation of privacy as an absolute right is described by Ayn Rand in “The Fountain Head]’ [14]. Commodification of Identity ultimately needs that culture.

(Author: Sunita Samal has a PhD From J.N.U., New Delhi; Graduate in Law from University Law College, Bhubaneswar)

[1Dogan, Stacey L. and Mark A. Lemley, ‘What the Right of Publicity Can Learn from The Trademark Law’, 58 STAN. L. REV. 1161. 1167 (2006)

[2Parent, William ‘A New Definition of Privacy for the Law; 2 L & PHIL. 305 (1993)

[3Kahn, Jonathan D. “Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity’, 17 CARDOZO Arts and ENT. L. J. 213 (1999)

[4Jackson, T. J. Lears (1994) ‘No Place of Grace: Anti-modernism and Transformation of American Culture 1880-1920. University of Chicago Press.

[5Strasser, Susan ‘Satisfaction Guaranteed: The Making of the American Mass Market’. 91 (1989)

[6Trachtenberg, Alan (1990) ‘Reading American Photography: Images as History: Mathew Brady to Walker Evans 27 (1990)

[7Allen, F.L. ‘Only Yesterday as Informal History of 1920s.

[8Barbas, Samantha (2013) ‘From Privacy to Publicity: The Tort Application in the Age of Mass Consumption’. University of Buffalo School of Law.

[9Horowitz, Irving Louis (2006) ‘Privacy, Publicity and Security: The American Context: Privacy is not only a right but also an obligation’ EMBO Reports (2006) July; 7 (spec No.) 540-544.

[10Shaw, G. B. (1933) ‘Speech at New York on April 11, 1933. In Beck E M (ed:1980) Familiar Quotations, Boston, M A, USA: Little, Brown & Co.

[11Baig, EC et al (1999a) ‘Stepanek M. Gross N ‘Privacy’, Business Week, 5 April.

[12Moore, A D. (1997) ‘Intellectual Property: Moral, Legal and International Dilemmas, Lanham, MD, USA: Rowman 7, Littlefield.

[13Tocqueville, Alexis de (1835) ‘Democracy in America’ Translated by Henry Reeve. London, UK: Saunders and Otley.

[14Rand, Ayn (1943) ‘The Fountain HEAD’ New YORK: NY, USA: Bobbs-Merrill Co. in which Rand’s hero says that civilization is the progress towards a society of privacy. But by binding a community into a whole, John Dewey sought to realize a higher civilization that recognizes the unevenness of human evolution. His vision is little different from Ayn Rand by viewing the need for public interaction preempts the issue of privacy by allowing each individual to contribute his or her specific qualities and talents to improve society and make it function properly[[Dewey, J. 1929) ‘Experience and Nature’. London UK: George Allen & Unwin.

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