to Warren and Brandeis’ analysis.50 They advocated for society to employ technology consistently
with fundamental societal values, rather than requiring individuals to adapt to the technology. 51
In response to this article, courts created several privacy torts to remedy the harms that
Warren and Brandeis wrote about, 52 rooted in the “more general right of the individual to be let
alone.”53 These torts included “(1) intrusion upon seclusion; (2) public discourse of private facts;
(3) false light; and (4) appropriation.”54 In Lake v. Wal-Mart, the U.S. Supreme Court held that the
right to privacy included protection from “truthful but embarrassing revelations that cause
emotional harm to the subject of the disclosures.”55 The Court did not, however, recognize “false
light”, the dissemination of “inaccurate materials that are hurtful to the feelings of the subject but
do not rise to the level of harm to the reputation,” as a tort.56
Courts have also recognized a closely related, though different, right to publicity. The right
of privacy is generally “the right of the individual to be let alone; to live quietly, to be free from
unwarranted intrusion, to protect his name and personality from commercialization.” 57 The right
of publicity is the complementary opposite: a person’s right to “reap the benefit of his personality,
name and likeness,”58 or in other words, to “control the commercial use” of his identity. 59 This
right is driven by recognition that someone’s persona or identity should be legally recognized as
their property, and that aspect of their self should be protectable against commercial use without
their consent.60
The question of who should be allowed to contribute to the development of one’s image is
complicated by the fact that technology has enabled people to create a robust personal (and yet
public) digital history, whether they realize it or not. As Warren and Brandeis feared in 1890 with
the development of technology that enabled candid photos for the first time, “Instantaneous
photographs and newspaper enterprise have invaded the sacred precincts of private and domestic
life; and numerous mechanical devices threaten to make good the prediction that ‘what is
whispered in the closet shall be proclaimed form the house-tops.”61 However, Warren and
Brandeis did not foresee how willingly complicit individuals would be in the invasion. In fact, we
are the ones who disclose and make public our own private lives. Instead of the clandestine
intrusion into our closets, we broadcast our own whisperings with a digital megaphone. As one
50 Warren & Brandeis, supra note 1, at 195. (“Instantaneous photographs and newspaper enterprise have invaded the
sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction
that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”).
51 Id. at 58.
52 DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 58, (2004).
53 Warren & Brandeis, supra note 1, at 205.
54 SOLOVE, supra note 52, at 58.
55 Marshall H. Tanick, The Privacy Paradox, 65 BENCH & BAR OF MINNESOTA 22, 23 (2008) (analyzing Lake v. Wal-Mart Stores, Inc., 566 N. W.2d 376, (Minn. Ct. App. 1997). (The article summarizes the analysis of the Supreme Court:
“The majority decision articulated three forms of protectable privacy: (1) intrusion against
seclusion . . . (2) misappropriation or exploitation for commercial purposes, normally known as the “right of
publicity” . . . and (3) truthful but embarrassing revelations that cause emotional harm to the subject of the
disclosures.”).
57 ALEXANDER LINDEY & MICHAEL LANDAU, 1A LINDEY ON ENTERTAINMENT, PUBLISHING AND THE ARTS § 14:1 (3d
ed. 2007) (citing Warren & Brandeis, supra note 1).
