The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook’s much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.
Let’s start with the idea’s constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That’s because the IP Clause of the Constitution says that Congress may “secur[e] for limited Times to Authors… the exclusive Right to their respective Writings.” I’m the author: I took the photograph (copyright nerds would say that I “fixed” it in my camera’s memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer’s Company. The British crown had an excellent reason for giving the Company a monopoly – the Stationer’s Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It’s unconstitutional to award it to anyone else.
Second, Congress cannot permit facts to be copyrighted. That’s partly for policy reasons – we don’t want one person locking up facts for life plus seventy years (the duration of copyright) – and partly for definitional ones. Copyright applies only to works of creative expression, and facts don’t qualify. They aren’t created – they’re already extant. Your face is a fact: it’s naturally occurring, and you haven’t created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out.
So, the proposal is unconstitutional. It’s also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer – subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine – it invites courts to inject their normative views into the analysis.
It also creates extraordinarily high administrative costs. It’s already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing – and leads to strategic behavior by people who see a potential defendant with deep pockets.
Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one’s likeness is used in a newsworthy fashion. It’s not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren’t turning to it. But those are features, not bugs.
Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.
Cross-posted at Prawfsblawg.