Publicity Rights in Facial Recognition and Other Biometric Data

Widespread use of facial recognition technology is inevitable. To date, industry–leading companies have shown remarkable restraint in implementing such features. Google has banned facial recognition apps on its Glass headset, and Facebook has refrained from rolling out the technology to the degree that it could, although it’s inching further in that direction.

But as digital hardware proliferates, it will be impossible to keep this genie in the bottle. The potential commercial applications are just too numerous and profitable to expect such restraint from all service providers. Indeed, multiple hackers currently testing the Explorer Edition of Glass have already given it facial recognition capability. Augmented reality concept videos are chock full of examples in which digital data—including links to their social media profiles, dating service information, even whether they’re a registered sex offender—is seen hovering in the air over a person’s head. Facial recognition is by far the easiest and most direct means by which to associate such displays with a particular person.

The main concern voiced about this technology to date has been “privacy,” although society in general seems to have no consensus about what that word actually means. I expect that the right of publicity—that weird, state-law transitional species between the common law of privacy and intellectual property—will play an increasingly prominent role in this debate going forward. To see why, just follow the money. Privacy law is about keeping things out of the public view. Publicity rights, on the other hand, allow the person whose likeness is being exploited to profit from it.

Before long, someone is going to make the argument that facial recognition technology infringes the publicity rights of the person being scanned. I am actually surprised that no one seems to have made this argument in court yet. Right of publicity law regulates the commercial exploitation of a person’s identity, which is generally thought to include at least their physical appearance. The same commercial forces that guarantee the expansion of facial recognition will also provide plenty of evidence demonstrating the commercial value of the data. It will not take a scholar to connect the dots and argue that the people scanned should recoup a portion of any money made from their biometric data.

Whether this argument gains any traction is another matter. Biometric data is already widely used for entirely utilitarian (and especially security) purposes—witness, for example, the fingerprint scanner in the new iPhone 5S. Allowing people to own intellectual property rights in that data might complicate matters too much for that technology to remain useful, to the detriment of society as a whole.

And then there is the very substantial hurdle of First Amendment rights to consider. The same fundamental legal principle that safeguards our freedom of speech also protects our right to record events in public and to portray real people in fictional works.  Courts in several jurisdictions (including in cases I’ve litigated) have already imposed severe restrictions on publicity rights in order to avoid interfering with these rights.

Although we can’t yet predict how these arguments will pan out in various courts or circumstances, one thing is for certain: they’re coming.

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