Here is the Wikipedia article "Personality Rights" , which covers the so-called right of publicity. Note that in the U.S. this latter right developed out of the "right of privacy," which I think was pioneered by Louis Brandeis in a Supreme Court decision and later elaborated in a famous 1962 Supreme Court case, Griswold v. Connecticut .

Among the many inner contradictions of the right of publicity is the fact that, contrary to what I posted in a previous comment, in the U.S. it applies in only 28 states, not in all 50. So here we have an alleged right that doesn't apply universally. Where is John Locke when we need him? At least "fair use" applies across the board to all copyrighted material in all jurisdictions. (Excuse me while I sneak into your garage and take your car out for a spin around the neighborhood. It's just fair use and I promise to bring it back. And then I'll be hitting a few serves with your tennis racket. And then to sample some food in your fridge. If I don't like it my dog will put a sample on your carpet. :-)

Indiana, a state I spent part of my misspent youth in, is the league leader in this right. Not surprisingly, California and New York have been in the forefront of pushing this right, thanks undoubtedly to the prominence of the entertainment industry (and entertainment attorneys) in these states.

The right of publicity boils down to the alleged right not to have one's image or likeness commercially used without permission or compensation. Although I don't think Tom G. Palmer considered this aspect of "IP" in his 1990 Harvard Journal of Law & Public Policy essay "Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects" [PDF], you can probably substitute "publicity right" for "copyright" and understand why this right is a non sequitur.

I'm putting this post under the topic "IP as a Joke."

1) You're a bit off. Brandeis's "right to privacy" (developed in a law review article he wrote) from which the right of publicity is derived has nothing to do doctrinally with the "right to privacy" developed in Griswold that has come to be a code word for the right to contraception and abortion. The former is supposed to provide protection against the prying eyes of private parties (like reporters or photographers) into one's personal affairs, while the latter deals with the government's intervention into one's intimate affairs.

2) Maybe the answer is that since this is "IP as joke," I shouldn't expect you to have any sort of coherent position, but still I'm confused. If you're against IP rights, why do you analogize fair use to unauthorized borrowing of tangible property?

3) Why does the fact that ROP is a matter of state law make it only an "alleged" right? Didn't you get the memo? We have a federalist system in which all kinds of rights can vary from state to state.

4) I think the right of publicity is broader than it should be, but it doesn't strike me as absurd in principle. Are you saying that if I took a photo of you and plastered it on billboards around the country for some product that you have no wish to endorse or be associated with (say, medication for cold sores), you would have no just complaint?

The billboard-plastering could probably be combated under other laws. False advertising for starters, and possibly defamation if it associates you with something unpleasant (e.g. it's cocaine instead of cold-sore medication).

1) Thanks for the correction on Brandeis. Even if the Griswold decision is not doctrinally derived from Brandeis's position, it is at least an echo of it. My guess is that he would have supported it and probably would have cited his earlier position in defense of it. In libertarian theory, there is no such thing as a right to privacy, because privacy, rightly understood, is enveloped in one's private property. The way to guard against government interference in one's private affairs is to get rid of government interference. Just invoke the Chodorov Principle .

2) I analogize fair use to unauthorized borrowing of property because fair use is an absurdity, so why not do so? It's called a reductio ad absurdum.

3) I did get the memo, but then laughed it into the garbage can. Maybe you didn't get the memo as to what actually constitutes a right, and the memo as to the nature of the State, both written by Murray N. Rothbard.

Here's Rothbard's memo on the nature of rights (and they have nothing to do with federalism): "The Ethics of Liberty" .

Here's Rothbard's memo on the nature of the State: "The Anatomy of the State" .

4) I don't know why you'd want to plaster my mug on an ad for something. But if you did so and I didn't endorse it (like cold sore medication, or state action of any type), I would have grounds for just complaint, just like I have grounds for just complaint when I am served a bad meal at a restaurant. I can boycott you or the restaurant, take out a counter ad, remonstrate against you or the restaurant, and take various other actions. What I can't do in a free market legal system is collect damages. I don't own my image and rightly have no control over what you do with your property, save when you physically attack me or my property with it. Note that this principle would actually reduce the crimes committed by government (the biggest law breaker on the planet), as well as by private persons. It would be bad for the legal profession though because it would put an end to rent seeking. Sniff.

1) The type of privacy Brandeis cared about would be at risk even if we got rid of the state completely, because he was concerned primarily about private parties (like tabloids) prying into and publishing one's intimate affairs. Help me understand what you mean by saying privacy is "enveloped" in private property. If by private property you mean only the right to exclusive control of land and chattels, then there is no right to privacy at all, except as a potential side effect of your use of your property. As long as they don't trespass on your property, the paparazzi can surround your house, peer into every window, dog your every step, eavesdrop on your every word, and publish everything they get to enquiring minds. The only privacy you have is whatever you are able to obtain by using your private property to create an inaccessible haven from the eyes and ears of others. Which means you can enjoy either privacy or sunlight, but not both at once. Is that what you understand Rothbard's position to be?

2) Let me clarify something that is often misstated. Fair use is not a right to use someone else's property; it is a definitional carve-out from the scope of that property. The exclusive rights granted to copyright holders under section 106 do not extend to fair uses at all. So it's not that we allow you to infringe on some people's copyrights in certain circumstances, it's that when those circumstances obtain you are not infringing at all. So if the absurdity you perceive lies in a purported contradiction between the concept of "property" and the possibility that others may have rights to use that property without the owner's consent, then there is no absurdity. What makes IP rights problematic in my view is that since they do not attach to any specific tangible objects, all they really do is give copyright holders and patentees the right to exclude third parties from making particular uses of those parties' own tangible property. So that if you believe the concept of "property" has to mean the right to make any use one wishes of some piece of land or chattel and to exclude all others from making any such use, then IP itself is absurd because its existence undermines the property rights of everyone. I assume that this is the root of your real objection to IP in general. Looked at in this way, it's not that fair use is absurd, it's that everything not involving physical invasion of someone else's property should be fair use.

3)Let's drop this one.

4) So I take it that similarly the only recourse against breach of contract, fraud or defamation should be the non-forceful imposition of reputational consequences on the person responsible?

1) Brandeis was more or least a socialist, or at least a semi-socialist, so I'm not surprised he was exorcised mainly about private parties rightfully exercising their property rights. Yes, I think you have described Rothbard's position (and that of libertarians). I don't recall Rothbard ever tackling the issue of a right to privacy, but my take is that there is no such thing, because privacy is not something that can be owned, just as ideas can't be. Indeed, privacy, like an idea, is something you experience. You can't touch it, hold it, or sell it. Therefore it can't be property, nor can you have a right to it. If it can't be property, it can't be invaded by someone else. In order to "invade" your privacy, I have to invade your property (or someone else's property, such as a hotel room you might be renting for a day, or a car you might be leasing, etc.) The invasion is a violation of someone's property rights, not his privacy per se even if the latter is interfered with. Brandeis wouldn't have understood this because of his statist view of property, a view that endorsed property invasions such as the income tax and the estate tax, and probably all manner of "progressive" regulation of business. I don't see why you can't have privacy and sunlight simultaneously. I'll bet even Hollywood types can.

2) When you say that "fair use is a definitional carve-out from the scope of that property," I assume the property in question is copyright. But copyright is not property; it's a monopoly grant by the State, which prevents other people from taking certain actions with their own property, copies of a creator's property to be sure, but their legally owned and physically distinct property nonetheless. My objection to fair use is that it is based on the acceptance of copyright. Fair use is fine as far as it goes, but why not have the right to copy the whole enchilada, not just a few commercially irrelvant lines? I agree that everything not involving physical invasion of someone's property should be fair use.

3) Okay, but the definition of property and rights, and the way the state invades both in everything it does are important in any discussion of IP. Indeed, this is the overwhelming weakness of most IP theorists' work. Lessig's book Free Culture is Exhibit A. He accepts both copyright and patent, but wants to reform them to make them less onerous to innovators and less invasive of artists' and creators' rights. Ditto for Vaidhyanathan. It's like wanting to keep the institution of slavery, but making the slaves' living conditions better.

4) Libertarians don't believe in laws against defamation, libel, and slander. (I don't know if defamation and slander are exactly the same or differ in some ways.) No one owns his reputation, so no one can have a property right in it. It's strictly a subjective opinion held by someone else. Libertarians do believe in contracts and laws against breach of contract. I would suggest reading Rothbard on these topics to see what the plumbline libertarian view is. You might also want to see his essay, "Justice and Property Rights." I recently reread it, and found the (almost hidden) key that unlocks the mystery of why he accepted the legitimacy of copyright but not patent. I'm going to post something on it, hopefully in the near future. Unfortunately, I don't think it's available online, but it is reprinted in his collection, The Logic of Action One, which I failed to locate at Amazon.com just now, but with only a cursory search.

Rothbard considers some of the points you raise in The Ethics of Liberty.

Here is his chapter on "Knowledge, True and False", and his chapter on "Property Rights and the Theory of Contract".

You apparently define the term "libertarian" to mean "one who agrees with Rothbard on everything."

As any Hollywood type will tell you, if sunlight can get in, so can a telephoto lens.

I don't think Rothbard's contract theory holds water. His notion of "implicit theft" is nothing more than another kind of disappointed expectation. I gave you my property in reliance on your promise that you would pay me later. Your later refusal to pay is not an initiation of force. To give me a cause of action, Rothbard says that my transfer of the property was "conditional," so that somehow once you refuse to pay it magically becomes mine again and renders you a thief. To really be consistent he should deny me a cause of action and say that if I want to protect myself I need to insist on simultaneous tender. Even the performance bonds he seems to like were executory promises to pay that had to be enforced by courts (thus leading to their lamented demise when the courts stopped doing so). Randy Barnett (a libertarian, but not a Rothbardian) does a better job with his consent theory of contract. It is no violation of rights to enforce a contract against someone who has consented to have that contract enforced against him.

FYI, libel and slander are just two species of the genus defamation. Libel is written and slander is spoken. If the only valid tort actions are those that can be reduced to a violation of property rights, it's not just defamation you're doing away with. If I deliberately dig a hole just beyond the confines of your property in an area where I know you to walk every morning, and cleverly conceal it so as to cause you to fall in and break your neck, then on your terms there should be no legal recourse against me either. You don't have a property right in the earth where I dug the hole, and I didn't touch your neck.

Where did I say that to be a libertarian, one has to agree with Rothbard on everything? In fact I have several disagreements with him, such as copyright, money and banking, and a few other things. He was right to oppose patent, but his discussion of the subject is rather thin.

I mentioned his book because I think it's the best overall discussion of these issues, even though I agree that Barnett is better in some regards. However, I don't recall Barnett having discussed IP issues, although maybe my memory is hazy.

I've never been comfortable with Rothbard's idea of implicit theft, and possibly Barnett's theory is better. (I think Bill Evers is in his camp too.) Are you saying that libertarian courts would not (or could not) enforce a transfer of goods on credit subject to the condition that they be paid for? This strikes me as odd. If the courts stopped enforcing performance bonds, what does that say about the courts? They also enforce IP and other statist laws and institutions.

If I deliberately dig a hole just beyond the confines of your property in an area where I know you to walk every morning, and cleverly conceal it so as to cause you to fall in and break your neck, then on your terms there should be no legal recourse against me either. You don't have a property right in the earth where I dug the hole, and I didn't touch your neck.

If you dig a hole just outside my property in a place I have to walk over and I break my neck, certainly I'd have grounds for an action against the property owner (that would be the owner of the property whose rights you violated, perhaps the Clean & Safe Street Company, a private supplier of roads and sidewalks), who would in turn have grounds to sue you. So you would end up paying me in the end.

As for your sunlight and telephoto lens example, it's not true that if sunlight can get into a room, that a telephoto lens can necessarily be used to snap a photo of someone. I have been in a room that was constructed in such a way that you could sit at certain places and get sunlight but could not be seen from the outside.

Why exactly do you have a cause of action against the property owner? How did he violate your property rights?

Why exactly do you have a cause of action against the property owner? How did he violate your property rights?

Because of the nuisance on his property, which caused my injury. Presumably private road and sidewalk owners would have liablilty for accidents caused by their failure to maintain their property up to a minimum standard.

I don't know how this works when government "owns" the infrastructure. After I slipped on an ice patch while walking along a sidewalk January 14, 1996, and broke my ankle, Jim Ostrowski, a libertarian lawyer, told me to forget about suing New York City, as I wouldn't get a dime. I doubt I could have collected anything even if the accident had been caused by a poorly maintained sidewalk, not by ice.

Another way to look at this would be to think of what would happen if you were served a bad meal in a restaurant, say food that had poison it in, which caused you to get sick. Presumably you would have just cause for an action against the restaurant. You certainly would in a libertarian legal system. The same principle would hold in the case of a poorly maintained sidewalk that caused you to have an injury.

I've forgotten what this has to do with IP but then IANAL.

Here's where I'm going with this conversation:

You seemed earlier to be taking the position that the only valid legal claim you can have against anyone is if they violate your property rights. Your dismissal of defamation as a cause of action was based on the simple assertion that you don't have any property right in your reputation, so there can't be a valid legal claim. I'm trying to understand whether you really believe that. It looks like maybe you don't.

If you think the owner of a (private) sidewalk has a duty to keep it safe for you to walk on, I'm trying to understand the source of that obligation in your view. It doesn't appear to be a property right on your part, since you don't own the sidewalk and presumably you don't believe you have a general right to have the world made safe for you. It's not a contractual right (assuming we agree that contracts are enforceable), because the owner of the sidewalk never promised you it would be safe. [By the way, a nuisance is an activity taking place on someone else's property that invades your ability to enjoy your own property, such as smoke, smell, noise, etc. A concealed hole that only affects you if you set foot on his property isn't a nuisance.] Why in a libertarian world would there be a default assumption that sidewalk owners have a duty to people who choose to walk there? Shouldn't the default assumption be that you walk at your own risk unless you have purchased an express guarantee of safety? If you don't trust that the sidewalk is safe, then go walk somewhere else. [My hypo was not that you were forced of necessity to use this path; just that you did so habitually.]

Or take your restaurant hypo. How exactly do you define the duty that has been violated? Instead of presuming that you have a just cause of action, tell me why. What right of yours did they violate?

As far as I'm aware, most if not all libertarians accept Rothbard's argument against libel and slander laws, because there can be no property right in a reputation. Henry Hazlitt did accept them in his book The Foundations of Morality, but he was a utilitarian. I don't know what Randy Barnett's view on this issue is.

The first principle of a libertarian theory of rights is self-ownership--you own your body. (In a free market, you could sell your body parts, a kidney, etc., unlike the State-dictated set up, which bans these transactions.) So if Smith shoots Jones, he has violated Jones' property right in his body, which implies the right not to be coerced by anyone, including Smith. That's why it's a crime by Smith against Jones.

Another aspect of a libertarian society is that the infrastructure--roads, sidewalks, bridges, etc. would be privately owned. This would entail a profit incentive for bridge owners, for example, to clean them of decaying bird dung so they wouldn't collapse. In the current set up, bridges are owned by the cop-'n-court monopolist-protection racket known as the State, which has little incentive to keep them in proper repair. Why should a vote-mingering pol care about maintaining bridges when there's a hand to be shaken, a back to be slapped, and a ribbon to be cut on a new splashy new infrastructure project, especially if he's getting a kickback on a no-bid contract? (I think the Libertarian Party should start awarding an annual Randy (Duke) Cunningham award to the most corrupt politician in Congress. I want to be on the jury.)

You say that a nuisance invades your ability to enjoy your own property. Well, since my body is my property, if I fall in the hole outside my property and suffer an injury, that seems like a violation by the property owner of my rights. If I go to a lawyer, doctor, accountant, dry cleaner, or other service provider, I expect a minium standard of service. So if my surgeon takes out my right kidney instead of my left one (I think this has actually happened), don't I have good grouds for an action against him? Ditto if my cleaner ruins my clothes, I assume. (And why not sue for $50 million like that lawyer in DC a k a the real Sin City, who sued a Korean dry cleaner for about that much!)

In the case of a sidewalk and road owning company, which has collected tolls or user fees from me or my neighborhood property association (to which I have contributed), presumably it has liability if someone, me in this case, is injured because of its negligence or a nuisance it has caused, which led to my injury. The default assumption, I assume, would be that a property owner is liable for an injury, death, or other proerty damage caused by failure to maintain his property in good repair, assuming he posted no sign saying "Road Under Repair, travel at your own risk," or something similar. In other words, he has liability exposure, just like a doctor or dry cleaner. He could protect himself with liability insurance, just as they could.

I don't know how the state set up works in this regard. I assume the State either has no liability, or would do whatever it takes to weasal out of it and foist the problem on the long-suffering victims of state action.

In the restaurant example, the restaurant violated my property right in my body. This would entail a right to be free of the poison in its food. I assume restaurants, unlike the State, have liability exposure for this sort of thing. Didn't Jack in the Box have a problem a few years ago, and more recently some other chain?

The right to sell body parts, like the right to sell oneself into slavery, is banned for a good reason -- protection of the poor from predation. Almost literally in the case of body parts. Poor people would tend to either sell themselves into slavery, or sell off body parts, to get by. Perhaps eventually selling vital parts (and thus dying) for the sake of the kids, or whoever.

But then, all anarchist/extreme libertarian societies would seem to run into the same problem of leaving the poor to fend for themselves, and, generally, killing them through neglect in some way or another anyway...

The other problem is what stops the natural monopolies (e.g. in infrastructure) from being abusive? Your "Clean & Safe Sidewalks Company" is going to own land you have to cross to go much of anywhere. Absent the state either owning the sidewalks outright, regulating this company, or intervening to allow exceptions to trespass when it's necessary to get from A to B, and especially absent the state entirely, this company can dictate terms to you and you have little recourse. Indeed, if they own a complete ring of land around your house and lawn, they can effectively imprison you if they decide they want to just by waiting until you're home and then withdrawing permission for you to cross their land. This monopoly has the power to set prices regardless of normal market forces, and to tell everyone the service is provided as-is with no warranty and no acceptance of liability of any sort, and you can like it or lump it. Libertarian and especially anarchist societies would depend on market forces to keep a variety of problems, ills, and evils in check, but there are two cases where that fails:

a) The poor, who have no bargaining power in the market (but do have a vote), and

b) Natural monopolies, which would tend to include most sorts of infrastructure, are immune to market forces in the usual manner of monopolies.

I don't even see anything in either type of society that would ensure against "unnatural" monopolies through plain old collusion or rapacious M&A or whatever leaving either a single provider or an oligopoly in an area that doesn't have a natural monopoly. What stops one company buying up all the burger joints in San Jose, or all of the dry cleaners in the DC area colluding, in your ideal society? Sure, someone can start up a new one of each and refuse to sell/participate, but they'll be offered a ridiculous sum to participate; most would yield to temptation. Sure, the incumbents won't be able to use specious IP laws to kill the upstart by patent, trademark, or copyright BS, but they can just use their sheer size -- they can, for example, cut prices for a while. They'll have the resources to operate at a loss for long enough to kill the competition by predatory pricing putting both on a starvation diet -- the newborn baby dies before the obese man, who promptly jacks prices up to the ceiling afterward. Only a misplaced faith in consumers being savvy and long-term-minded enough to prefer the newcomer to the established oligopoly would seem to help here. I say misplaced because actual consumer behavior in the real world suggests that it would be. Indeed the new joint would have to have this faith, and hold its prices high enough to operate in the black, while enough customers would have to actually go there despite it having the higher price, for the oligopoly's back to be broken.

I don't see that happening very often, realistically.

I think we need the state to protect us from monopoly about as much as we need copyright rents to recoup licensing costs.

We can assume that the road owner would be under contract to provide access to the road. The person that builds the house would negotiate such a contract before starting to build the house, obviously such access to the house is necessary for the house to be useful, and is therefore necessary before the house can be sold.

Who enforces the contract if not some kind of judiciary? This judiciary is going to be either a state or a private monopoly. The latter will probably sell rulings to the highest bidder. :P

The poor having no market influence remains unaddressed also.

You have mentioned only one option. It will be enforced either by a monopoly (the state) or, if there is no state, by one of many competing enforcement agencies in the market. Either way, to enforce contracts is a legitimate use of coercion, so there is no objection with me, other than that the market is probably able to take care of it more efficiently.

What is not a legitimate use of coercion is theft. I agree that poor people deserve a chance to be successful in life. However, we disagree on method. Your method, to rob the hard-working people of the fruits of their labor and give it to the poor strikes me not only as immoral but also as ineffective.

If there is to be a transfer of wealth, it ought to be through charity. Not only would competing non-profits be able to better take care of the poor, this makes sure that you don't rob the people of their goodwill together with their money.

Next, moving towards a free market will make everyone better off. Even if it makes the rich a little more better off than it makes the poor better off, that is no argument for socialism. The poor are still better off. But I don't think it will make the rich more better off than the poor. Much of what government does hurts poor people far more than it hurts rich people.