1. This focus reflects, in large part, a well-founded aversion to the notion of some abstract universal identity which applies to all. Historically, studies claiming to examine “identity” itself have contained the white, middle class American male as their implicit norm and primary referent The literature on identity and identity-formation is vast and encompasses a wide variety of disciplines. For some representative and influential discussions of the problem written by legal scholars see generally, Sandel, Michael J., The Procedural Republic and the Unencumbered Self, 12 Pol Theory 81–96 (1984)CrossRefGoogle Scholar; Minow, Martha, Identities, Yale J. L. & Human. 397–130 (1991)Google Scholar; Danielsen, Dan & Engle, Karen eds. After Identity (1995)Google Scholar; Post, Robert C., The Social Foundations of Privacy: Community and the Self in the Common Law Tort, 77 Cal. L. Rev. 957–1010 (1989)CrossRefGoogle Scholar

2. Of course, “equality,” which implies being equal to something, has also taken the white male as its primary referent. The literature in critique of the legal concept of “equality” is extensive. See, e.g., MacKinnon, Catharine, Feminism Unmodified, especially 32–45 (1987)Google Scholar; Williams, Wendy, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, 7 Women's Rts. L. Rep. 175 (1982)Google Scholar; and Littleton, Christine, Reconstructing Sexual Equality, 75 Cal. L. Rev. 1279 (1987)CrossRefGoogle Scholar; and Rhode, Deborah, Justice and Gender: Sex Discrimination and the Law (1989).Google Scholar

3. Privacy occupies a central place in the Western liberal tradition as an essential component of self-definition and individual development. See generally, Westin, Alan, Privacy and Freedom (1968).Google Scholar The meaning of privacy, however, has proven elusive. Legal scholars and philosophers have variously defined privacy as a psychological condition of “being apart from others,” Parker, Richard, A Definition of Privacy, 27 Rutcers L. Rev. 275 (1974)Google Scholar; “freedom not to participate in the activities of others,” id.; “a social ritual by means of which an individual's moral title to his existence is conferred,” Reiman, Jeffrey H., Privacy, Intimacy and Personhood, 6 Phil. & Pub. Aff. 39 (1976)Google Scholar; “a boundary through which information does not flow from the person who possesses it to others,” Shils, Edward, Privacy: Its Consequences and Vicissitudes, 31 Law & Contemp. Probs. 282 (1966)CrossRefGoogle Scholar; “the exclusive right to dispose of access to one's property (private) domain,” Van Den Haag, Ernst, On Privacy, in Privacy: Nomos XIII 150–51Google Scholar (Pennock, J. Roland & Chapman, John W. eds., 1971Google Scholar); and as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others,” Westin, Privacy and Freedom 7. “Control” seems to be a common concern of many definitions, whether of information, territory, or the self. Thus, privacy has been defined as control over: “knowledge about oneself,” Fried, Charles, Privacy, 77 Yale L.J. 483 (1968)CrossRefGoogle Scholar; “the intimacies of personal identity,” Gerety, Tom, Redefining Privacy, 12 Harv C R.-C. L. L. Rev. 236 (1977)Google Scholar; “acquaintance with one's personal affairs,” Gros, Hyman, Privacy and Autonomy, in Privacy: Nomos XIII 169Google Scholar; “decisions concerning matters that draw their meaning and value from the agent's love, caring, or liking,” Innes, Julie C., Privacy, Intimacy and Isoiation 91 (1992)Google Scholar; and “who can sense us,” Parker, , A Definition of Privacy, 280.Google Scholar

4. Prosser, William, Privacy, 48 Cal. L. Rev. 389 (1960).CrossRefGoogle Scholar Prosser speaks simply of use for the defendant's “advantage.” Technically, the gain need not be “commercial,” but when the gain is not commercial, appropriation is usually protected by free-speech rights.

5. Perhaps the relative obscurity of the tort of appropriation is due to its being eclipsed by its flashier cousin: the right of publicity. The right of publicity involves a person's (usually a celebrity's) right to control the marketing of one's name or interest. Publicity is a property right involving the individual's interest in the commercial value of one's image. Melville Nimmer first fully elaborated and explored the implications of a modern right of publicity in his article, The Right of Publicity, 19 Law & Contemp. Probls. 203–23 (1954).Google Scholar The standard legal treatise on the topic is McCarthy, J. Thomas, The Rights of Publicity and Privacy (1988).Google Scholar The privacy-based tort of appropriation is quite different. It is a personal right, involving the individual's interest in maintaining the integrity of one's identity. In defining the right of publicity, the law deals with a person's image as a tangible thing, a fungible commodity. But with the tort of appropriation, the law enters the realm of defining and recognizing identity itself. Here the implications of exerting legal power become enormous. In recognizing identity, the law enacts and protects an ideal of the self. It designates the qualities and attributes of an individual most valued by society. Rosemary Coombe and Jane Gaines are among those who have taken a more nuanced approach to the tort of appropriation. But they still tend to take a property-based approach, focusing on the politics of “possessing” an identity, rather than on how the law works both to enact and protect definitions of identity as an attribute of personhood. See Coombe, Rosemary J., The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy, 6 Canadian J. L. & Jurisprud. 249–85 (1993)CrossRefGoogle Scholar; idem, Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 Cardozo Arts & Ent. L. J. 365–95 (1992)Google Scholar; and Gaines, Jane M., Contested Cultures: The Image, The Voice, and the Law (1991).Google Scholar

6. See, for example, Allen, Anita & Mack, Erin, How Privacy Got Its Gender, 10 N. Ill. U. L. Rev. 441–78 (1990)Google Scholar; Gavison, Ruth, Feminism and the Public/Private Distinction, 45 Stan. L. Rev. 1–45 (1992)CrossRefGoogle Scholar; MacKinnon, Catharine, Feminism Unmodified, especially 32–15 (1987)Google Scholar; Okun, Susan Moller, Justice, Gender, and the Family (1989).Google Scholar

7. Minow, Martha, Making All the Difference: Inclusion, Exclusion, and American Law 20 (1990) (emphasis in the original).Google Scholar

8. Post, Robert, The Social Foundations of Defamation Law, 74 Cal. L. Rev. 707–11 (1986).CrossRefGoogle Scholar

9. See Cooley, Thomas, The Law of Torts 29 (2d ed. 1888).Google Scholar

10. Godkin, E.L., The Rights of the Citizen: IV. To His Own Reputation, Scribner's, 07 1890, at 59–65.Google Scholar

11. Warren, Samuel D. & Brandeis, Louis D., The Right to Privacy, 4 Harv. L. Rev. 193 (1890).CrossRefGoogle Scholar Like all good legends, the article even has its own creation myths. William Prosser, writing 70 years later, attributed the article to Warren's outrage at the press's intrusive coverage of his daughter's wedding. The image of the right to privacy as the product of an outraged brahmin's delicate sensibilities held sway for years until James Barron debunked it in 1979. Barron showed that Warren's daughter was not married about the time of the article. (A cousin of his was married in 1890, but press reports of it were restrained and not out of the ordinary.) And the claims that Warren was unduly sensitive to intrusions into private concerns lacked firm support. See Barron, James H., Warren and Brandeis: The Right to Privacy. 4 Harv. L. Rev. 193 (1890)Google Scholar; Demystifying a Landmark Citation, 13 Suffolk U. L. Rev. 892–912 (1979).Google Scholar

12. Warren, & Brandeis, , The Right to Privacy, 205.Google Scholar

13. Post, Robert C., Rereading Warren and Brandeis: Privacy, Property, and Appropriation, Case West. Res. L. Rev. 41 648 (1991).Google Scholar

14. Leebron, David W., The Right to Privacy's Place in the Intellectual History of Tort Law, 41 Case West. Res. L. Rev. 779–80 (1991).Google Scholar

15. Prosser, , Privacy, 389.Google Scholar

16. Id. at 406.

17. Bloustein, Edward J., Privacy as an Aspect of Human Dignity: An Ansuvr to Dean Prosser, 39 N.Y.U.L. Rev. 962 (1964).Google Scholar

18. Id. at 962–4.

19. Id. at 968.

20. Id. at 987.

21. Post, , Rereading Warren and Brandeis, 670.Google Scholar

22. See, e. g., Zimmerman, Dianne L., Requiem for a Heavyweight: A Farewell to Warren and Brandeis' Privacy Tort, 68 Cornell L. Rev. 291–376 (1983)Google Scholar, and Kalven, Harry Jr., Privacy in Tort Law—Wen Warren and Brandeis Wrongr? 31 L. & Contemp. Probs. 326–41 (1966).CrossRefGoogle Scholar

23. See generally, Fox, Richard Rightman & Lears, T.J. Jackson, eds., The Culture of Consumption (1983).Google Scholar

24. The literature on the right of publicity is extensive. For a general overview, see McCarthy, , The Rights of Publicity and Privacy.Google ScholarGaines, Jane M., Contested Culture: The Image, the Voice, and the Law (1991)Google Scholar provides an interesting multidisciplinary study of the right of publicity, drawing on cultural and literary theory to explore problems of marketing an image. More straightforward legal examinations of publicity include, Nimmer, , The Right of PublicityGoogle Scholar, and Fletcher, Peter L. & Rubin, Edward L., Privacy, Publicity, and the Portrayal of Real People by the Media, 88 Yale L.J. 1577–1622 (1979)CrossRefGoogle Scholar, and Halpern, Sheldon, The Right of Publicity: Commercial Exploitation of the Associative Value of Personality, 39 Vand. L. Rev. 1199–1255 (1986).Google Scholar

25. The terms “modern,” “modernist,” and “modernity” have many and complex meanings ranging across a wide variety of disciplines and professions. As used here, the term “anti-modern” is meant to refer to a state of mind marked by an apprehension over the growing pervasiveness of a national market dominated by giant corporate trusts and an aversion to a materialistic secularizing consumer culture being fostered in large urban centers flooded with teeming immigrant masses. For an extensive analysis of anti-modernism during the Progressive era that informs my use of the term here, see generally, Lears, T.J. Jackson, No Place of Grace: Antimodernism and the Transformation of American Culture, 1880–1920 (1981).Google Scholar

26. Pavesich v. New England life Insurance Co., 50 S.E. 68 (Ga. 1905), 81.Google Scholar

27. Id. at 80.

28. Id. at 80.

29. Bloustein, , Privacy as an Aspect of Human Dignity, 988 (emphasis added).Google Scholar

30. Warren, & Brandeis, , The Right to Privacy, 193.Google Scholar Writing in 1915, Roscoe Pound elaborated upon the historically contingent nature of privacy interests. In an article on “Interests of Personality,” Pound articulated, even more clearly than Warren and Brandeis, the anti-formalist view that “interests—that is, demands of the individual—increase with increasing civilization and hence the pressure on the law to meet those interests increases the scope and character of legal rights.” Pound, Roscoe, Interests of Personality, 28 Harv. L. Rev. 343, n. 2 (1915).CrossRefGoogle Scholar Privacy, according to Pound, was “a modern demand, growing out of the conditions of life in the crowded communities of today …,” Id. at 363. For the classic discussion of anti-formalism in the law during the Progressive era, see White, Morton, Social Thought in America: The Revolt Against Formalism 59–75 (1976).Google Scholar For a powerful reconceptualization of Holmes' thought in particular, and legal realism in general, see Horwitz, Morton, THe Transformation of American Law, 1870–1960109–92 (1992).Google Scholar

31. Warren, & Brandeis, , The Rigtit to Privacy, 195.Google Scholar

32. Westin, , Privacy and Freedom, 334–37.Google Scholar

33. Warren, & Brandeis, , The Right to Privacy, 195, 211.Google Scholar Brandeis would come back to the problem of intrusive modern technologies in his famous dissent in Olmstead v. United States, when he noted that the “progress of science” had furnished the government with “subtler and more far-reaching means of invading privacy” than ever available before. 277 U.S. 438 (1928), 473–74.

34. Writing 90 years later in an effort to vindicate privacy as a distinct and independent right, Ruth Gavison echoes Warren and Brandeis' concerns in arguing that privacy “is related to our concern over our accessibility to others; the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention.” Gavison, Ruth, Privacy and the Limits of the Law, 89 Yale L. J. 423 (1980).CrossRefGoogle Scholar Though apparently an heir to Warren and Brandeis' thesis, Gavison deals with the principles of the right to privacy largely in the abstract and does not seem to appreciate fully the significance of the historical moment in which their concerns for privacy emerged.

35. See, e.g., Morgan, Edmund S., The Puritan Family: Religion and Domestic Relations in Seventeenth-Century New England (1966)Google Scholar; Erikson, Kai, Wayward Puritans: A Studyin the Sociology of Deviance (1966)Google Scholar; and Demos, John, A Little Commonwealth: Family Life in Plymouth Colony (1970).Google Scholar

36. Warren, & Brandeis, , The Right to Privacy, 195, 215–16.Google Scholar

37. See, for example, Barron, , Warren and Brandeis, 875, 907–12Google Scholar; and Allen, Anita & Mack, Erin, How Privacy Got Its Gender, 10 N. Ill. U. L. Rev. 441–42 (1990).Google Scholar

38. Allen & Mack, id. at 441–59.

39. The sense of loss of control over one's personal life even as the world is pressing in more insistently than ever before was widespread throughout professional circles in the United States at this time. It is perhaps the legal analogue to what Thomas Haskell has referred to as a “recession of causation” which caused a crisis of authority in the American social sciences during the late nineteenth century. See generally, Haskell, Thomas, The Emergence of Professional Social Science (1977).Google Scholar

40. See Allen, & Mack, , How Privacy Got Its Gender, 459.Google Scholar

41. Warren, & Brandeis, , The Right to Privacy, 193.Google ScholarSee also McCraw, Thomas K., Prophets of Regulation 80–142 (1984).Google Scholar

42. Lears, , No Place of Grace, xv–xvi.Google Scholar

43. See generally, Trachtenberg, Alan, The Incorporation of American Culture: Culture and Society in the Gilded Age especially 240–82 (1982)Google Scholar; Wiebe, Robert, The Search for Order: 1877–192044–163 (1967)Google Scholar; Haskell, . The Emergence of Professional Social Science 1–17Google Scholar; and Lears, , No Place of Grace 3–58.Google Scholar

44. See Sax, Joseph, Mountains Without Handrails 5–26 (1980).Google Scholar For a standard history of the national park idea, see Runte, Alfred, National Parks: The American Experience (1979)Google Scholar; Duerksen, Christopher, A Handbook on Historic Preservation Law 1–3 (1983)Google Scholar; and Rose, Carol M., Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan. L. Rev. 479–88 (1981).CrossRefGoogle Scholar On Gettysburg in particular, see United States v. Gettysburg Electric Railway Co. 160 U.S. 608 (1896).Google Scholar

45. See May, Elaine Tyler, Myths and Realities of the American Family, in A History of Private Life: Vol. 5.Google Scholar Riddles and Identities in Modern Times (Prost, Antoine & Vincent, Gerard eds., 1991); 549–50Google Scholar; Ford, Richard Thompson, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1871–76 (1994)CrossRefGoogle Scholar; Constance Perin, Everything in its Place: Social Order and Land Use in America 188–95 (1977).Google Scholar Consider also that the foundational case of American zoning law. Village of Euclid v. Amber Realty Co., 272 U.S. 365 (1926)Google Scholar, involved an attempt to prevent a developer from building apartment houses in an area zoned for singlefamily dwellings.

46. See Sax, , Mountains Without Handrails, 17–26Google Scholar; and Rose, , Preservation and Community, 33Google ScholarStan. L. Rev. 479–88 (1981).Google Scholar

47. Warren, & Brandeis, , The Right to Privacy, 205.Google Scholar

48. Id. at 193.

49. Pavesich at 69–70.Google Scholar

50. Id. at 71.

51. Id. at 71.

52. Cott, Nancy, The Grounding of Modern Feminism 5–12 (1987).Google Scholar

53. Allen, & Mack, , How Privacy Got Its Gender, 449–52.Google Scholar

54. Warren, & Brandeis, , The Right to Privacy, 195–96.Google Scholar In light of Brandeis' theories of privacy, it is possible to read the famous “Brandeis Brief” submitted in the case of Muller, v. Oregon, , 206 U.S. 412 (1908)Google Scholar, as similarly looking to create a space for women's delicate sensibilities that was in public yet beyond the reach of the market. In that case, Brandeis argued successfully before the Supreme Court to uphold a state law setting maximum hours for women workers. Brandeis filled his brief with social science data to argue that women needed special protection for their health and moral well-being. While endorsing a place for women outside the home in the workforce, Brandeis, in effect, justified the law as a means to create a privileged space to protect the presumably more delicate sex from the ravages of extreme market forces that, if left unchecked, would undermine both their physical and spiritual selves. As in die case of Marion Manola, women in public seemed to pose no threat to society. Rather, the danger came from the market

For a discussion of contemporary news accounts of the Manola case, see Glancy, Dorothy, Privacy and the Other Miss M, 10 Nw. U. L. Rev. 405–14 (1990).Google Scholar Allen and Mack's speculations that Warren and Brandeis saw this as an extremely strong case for their purposes, demonstrating that even so unworthy a woman as a stage actress deserved to have her female modesty protected, although plausible, are wholly without support on the record.

55. Warren, & Brandeis, , The Right to Privacy, 195, n. 7.Google Scholar

56. Pavesich at 70.Google Scholar

57. The recent literature on expositions is extensive. Among the most interesting and helpful are: Robert W. Rydell, in All The Worlds a Fair (1984), provides an analysis of the relation between the Columbian Exposition and concepts of racism and imperialism in America; David F. Burg, Chicago's White City (1976), and R. Reid Badger, The Great American Fair: The Worlds Columbian Exposition and American Culture (1979), provide more general accounts of this fair's place in American culture. In addition, Alan Trachtcnberg, in the final chapter of The Incorporation of American Culture: Culture and Society in the Gilded Age (1982), and Neil Harris in Museums, Merchandising, and Popular Taste: The Struggle for Influence, in Material Culture and the Study of American Life (Ian M.G. Quimby ed., 1978), 140–74, provide excellent essays on world's fairs in turn-of-the century America. Finally, Dean MacCannell, The Tourist (1976) provides a broad sociological analysis of the relation between tourism and modernity, which contains some provocative insights into the phenomenon of world's fairs.

58. Pound, The Intnrsts of Personality, 364–65.

59. Pavesich at 80.

60. Nimmer, , The Right of Publicity, 204–17Google Scholar; Madow, Michael, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 129–38, 178–96 (1993)CrossRefGoogle Scholar; and Armstrong, George M. Jr., The Reification of Celebrity: Persona as Property, 51 La. L. Rev. 443–15 (1991).Google Scholar

61. Macpherson, C.B., The Political Theory of Possessive Individualism 197–220 (1962).Google Scholar

62. Locke, John, Second Treatise of Civil Government, ch. 5, §.27 (1689).Google Scholar

63. Id.

64. Handler, Richard, Who Owns the Past? History, Cultural Property, and the Logic of Possessive IndividualismGoogle Scholar, in The Politics of Culture 64Google Scholar (Williams, Brett ed., 1991).Google Scholar

65. Pound, , The Interests of Personality, 357.Google Scholar

66. See generally, Radin, Margaret Jane, Property and Personhood, 34 Stan. L. Rev. 957–1015 (1982).CrossRefGoogle Scholar

67. Id. at 957.

68. Id. at 959–60.

69. Radin, Margaret Jane, Market-Inalienability, 100 Harv. L. Rev. 1851 (1987).CrossRefGoogle Scholar

70. Radin, , Property and Personhood, 960.Google Scholar

71. There is, of course, the danger of narcissistic self-infatuation. Radin's analysis of the problem of fetishism provides guidance to differentiate between “healthy” and “unhealthy” investments of the self in image. The boundaries of healthy object relations are essentially set by community standards. “At some point,” argues Radin, “there is an objective moral consensus that such control [over property for personhood] is destroying personhood rather than fostering it.” Radin, , Property and Personhood, 970.Google Scholar Radin's reliance on “moral consensus” itself creates further problems. See generally, Schnably, Steven, Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood, 45 Stan. L. Rev. 347–407 (1993).CrossRefGoogle Scholar

In the arena of ap60propriation, the dangers of relying on moral consensus arc most evident in a case such as Bitsie v. Waltson, 515 P.2d 659 (N.M. Ct App. 1973)Google Scholar, cert, denied 515 P.2d 643 (1973)Google Scholar, in which the plaintiff, a Navaho child, brought an action for invasion of privacy against a man who caused a picture of a sketch of the child to be published in a local newspaper in a story to promote the sale of a note card to raise funds for the United Cerebral Paisy Association. The plaintiff alleged that according to her beliefs, the use, without permission, of her photograph for such purposes was highly offensive and that according to Navaho beliefs, to have one's picture associated with an illness was bad luck. The court rejected the claim, holding that, “the tort [of appropriation] relates to the custom of New Mexico at this time and does not extend to ‘traditional’ beliefs.” Id. at 662. Such narrow-minded assertion of dominant community norms reveals the pitfalls of consensus-based approaches to defining valid claims. Nonetheless, it is perhaps possible to distinguish between “healthy” and “unhealthy” property relations by assessing the relations in terms of the relevant cultural system within which the individual belongs; subject to the limitation that such considerations do not undermine certain core constitutional values undergirding the American legal system. See also Moreland, J. William, American Indians and the Right of Privacy: A Psycholegal Investigation of the Unauthorized Publication of Portraits of American Indians, 15 Am. Indian L. Rev. 237–77 (1991).Google Scholar

72. See, for example, the cases of Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)Google Scholar, and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).Google Scholar

73. Mostenbacher v. R.J. Reynolds Tobacco Company, 498 F.2d 821 (9th Cir. 1974).Google Scholar

74. Norris, James D., Advertising and the Transformation of American Society, 1865–192097–98 (1990).Google Scholar

75. Post, Robert C., The Social Foundations of Privacy: Community and Selfin the Common Law Tort, 77 Cal L. Rev. 959 (1989).CrossRefGoogle Scholar

76. The court extended this approach to its view of property, asserting that “[property is not necessarily the thing itself which is owned. It is the right of the person in relation to it” Pavesich at 78.Google Scholar

77. Pavesich at 70.Google Scholar

78. Post, Robert C., The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Cal. L. Rev. 702 (1986).CrossRefGoogle Scholar

79. Id. at 7OO.

80. Pavesich at 70.Google Scholar

81. Lears, , No Place of Grace, xv–xvi.Google Scholar

82. Id. at xv–xx.

83. Pavesich at 70.Google Scholar

84. Madow, , Private Ownership of Public Image at 156.Google Scholar For a critical and insightful analysis of Edison as a popular icon, See Wachhorst, Wyn, Thomas Aina Edison: An American Myth (1981).Google Scholar

85. 67 A. 392 (N.J. 1907).

86. Wachhorst, , Edison at 392.Google Scholar

87. Id. at 394.

88. Id. at 395.

89. Radin, , Market-Inalienability at 1854.Google Scholar

90. Id. at 1855. 1903.

91. Id. at 1907–08.

92. Radin proposes a similar approach toward dealing with prostitution. She asserts that women's sexuality has been “incompletely commodified” in that “many sexual relationships [including marriage] may have both market and nonmarket aspects.” Criminalizing prostitution, therefore, may unfairly single out a particular class of women for punishment, thereby actually harming their personhood. Radin argues for a pragmatic compromise that focuses on “how to structure an incomplete commodification that takes account of our nonideal world, yet does not foreclose progress to a better world of more equal power.…” She urges the decriminalizaiion of the sale of sexual services but also calls for the prohibition of “the capitalist entrepreneurship that would operate to create an organized market in sexual services.” The prohibition would include such activities as “brokerage (pimping) and recruitment.” Radin, , Market-Inalienability, 1924–1925.Google Scholar