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1 PERSONNALITÉ, PERSÖNLICHKEIT, PERSONALITY Giorgio RESTA* 1. Let’s type the words “personality rights” into the Google web search engine. The first result is the Wikipedia entry on “personality rights.” It reads as follows: The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. [...] Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trade- mark; and the right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission. 1 From a civilian’s perspective, the confusion between the legal categories of “personality rights” and “publicity rights” is stunning: in the first sentence, personality rights are referred to as a simple syno- nym for publicity rights; in the second one, they are described as a complex legal structure, composed of the right of privacy and (again) * Revised version of the paper presented at the second workshop of the series “Les intraduisibles,” Faculty of Law, McGill University, 24 November 2010. I would like to thank Professor Lionel Smith for the invitation and the workshop partici- pants for their useful comments on a first draft of this text. 1 Last visited 21 May 2012. I am indebted to Professor Eric H. Reiter for this ex- ample. 06a-Resta.indd 1 06a-Resta.indd 1 13-10-31 09:19 13-10-31 09:19

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Giorgio RESTA*

1. Let’s type the words “personality rights” into the Google web search engine. The fi rst result is the Wikipedia entry on “personality rights.” It reads as follows:

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. [...] Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trade-mark; and the right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission.1

From a civilian’s perspective, the confusion between the legal categories of “personality rights” and “publicity rights” is stunning: in the fi rst sentence, personality rights are referred to as a simple syno-nym for publicity rights; in the second one, they are described as a complex legal structure, composed of the right of privacy and (again)

* Revised version of the paper presented at the second workshop of the series “Les intraduisibles,” Faculty of Law, McGill University, 24 November 2010. I would like to thank Professor Lionel Smith for the invitation and the workshop partici-pants for their useful comments on a fi rst draft of this text.

1 Last visited 21 May 2012. I am indebted to Professor Eric H. Reiter for this ex-ample.

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the right of publicity. No jurist trained in the civil law – I assume – would subscribe to such an analysis. It contrasts starkly with the conven-tional wisdom of personality rights as extra-patrimonial and inalienable entitlements which are functionally opposed to publicity rights which, on the contrary, have a proprietary character and are freely alienable.

What are the reasons for this confusion? Is it just another example of the mistakes and inaccuracies that occasionally affect Wikipedia articles?2 Hardly so. I suspect that the apparently bizarre defi nition provided by “The Free Encyclopedia” refl ects a narrow meaning of the term “personality” and, at the same time, the unease of the Anglo-American legal culture with a notion, the “right of personality,” which is embedded in continental legal thought and is alien to the common law.

“Personality right,” it has been noted, is a civil law concept.3 In-deed, every contemporary civil law treatise devotes at least a chapter of the law of persons – or of the general classifi cation of rights and interests4 – to personality rights. These are generally defi ned as the bun-dle of rights (right to one’s name, right to one’s image, right to privacy, etc.) aimed at the protection of the integrity and inviolability of the in-dividual5 and regarded as a sort of pendant of fundamental rights in pri-

2 For a discussion of the accuracy of Wikipedia articles see, for instance, Lucy HOLMAN RECTOR, Comparison of Wikipedia and other encyclopedias for ac-curacy, breadth, and depth in historical articles (2008) 36 Reference Services Rev 7.

3 See Adrian POPOVICI, “Personality Rights – A Civil Law Concept” (2004) 50 Loy L Rev 349 [POPOVICI].

4 It is generally held – although not unanimously – that personality rights can be regarded as “subjective rights” (droits subjectifs). On this category see generally Geoffrey SAMUEL, “‘Le droit subjectif’ and English Law” (1987) 46 Cambridge LJ 264.

5 Elspeth C. REID, “Personality Rights: A Study in Difference” in Vernon V. PALMER & Elspeth C. REID, eds., Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland (Edinburgh: University Press, 2010) at 387 [REID]; Denis TALLON, “Personnalité (Droits de la)” in Encyclopédie juridique Dalloz:

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vate law: they are “private human rights.”6 The category is now so fi rmly established in private law taxonomies that it might be surprising to note that the expression “personality rights” is never explicitly men-tioned in the civil codes of the nineteenth century. The Code Napoléon, for instance, completely ignores any such term and only refers to the “droits attachés à la personne” in article 1166, concerning a credit-or’s oblique action.7 The same holds true for the German BGB; this is particularly signifi cant considering that it is in this code that a “sub-jective right” to one’s personal name was recognized for the fi rst time (§ 12).8 Even article 28 of the Swiss Civil Code of 1907 – the most famous example of a general clause protecting the interests of the per-sonality – did not originally mention the expression “personnalité”: reference was made only to the “situation personnelle” (“persönlichen Verhältnissen”), the term “personnalité” (“Persönlichkeit”) was fi rst introduced in 1984.9

Répertoire de droit civil, vol. 1; Vincenzo ZENO-ZENCOVICH, “Personalità (diritti della)” in Digesto/civ., vol. 13, 4th ed. at 430.

6 Gert BRÜGGEMEIER, “Protection of personality rights in the law of delict/torts in Europe: Mapping out paradigms” in Gert BRÜGGEMEIER, Aurelia COLOMBI CIACCHI & Patrick O’CALLAGHAN, eds., Personality Rights in European Tort Law (Cambridge: Cambridge University Press, 2010) at 6 [BRÜGGEMEIER].

7 Agnès LUCAS-SCHLÖTTER, Droit moral et droits de la personnalité: Étude de droit comparé français et allemand (Aix-en-Provence: Presses Universitaires d’Aix-Marseille, 2002) vol. 1 at 46 [LUCAS-SCHLÖTTER].

8 See Raymond SALEILLES, “Le droit au nom individuel dans le Code civil pour l’Empire Allemagne” (1900) 29 Rev Crit Lég Jur 94: “La disposition de l’art 12 constitue, en dehors de l’art 21 de l’avant-projet suisse de Huber, la première ré-glementation législative du droit au nom individuel.”

9 Art 28 Swiss Civil Code, Schweizerisches Zivilgesetzbuch vom 10. dezember 1907, SR 210 [ZGB] has its origins in art 55 Swiss Code of Obligations, Bundes-gesetz vom 30. März 1911 die Ergaenzung des Schweizerischen Zivilgesetzbuch, fünfer Teil: litigationrecht, SR 220 where a similar terminology was adopted. For a detailed analysis of the legislative history of art 28 ZGB, see Pierre TERCIER, Contribution à l’étude du tort moral et de sa réparation en droit civil suisse (F ribourg: É ditions universitaires, 1971) at 97.

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The reason why one of the most peculiar concepts of civil law dogma is not found in the “classical” codifi cations lies in the particu-lar history of both the word “Persönlichkeit” and the category “Per-sönlichkeitsrechte.” As we will discuss later,10 such a category has a strictly doctrinal origin; it was developed by the German legal schol-arship in the second half of the nineteenth century and was only grad-ually received by legislation and case law. As a result of an impressive circulation of legal patterns, the concept of “personality rights” was then transplanted into the legal systems of most European countries.11 It infl uenced the vocabulary (reception is often accompanied by translation),12 the dogmatic apparatus and the institutions of these jurisdictions and can now be regarded as a building block of the Euro-pean private law system.13

Such a commonality is both a linguistic one and a semantic one. This is why one can correctly translate – as is regularly done in the judgments of the European Court of Justice14 and the European Court of Human Rights15 – the German expression “Persönlichkeitsrechte” with the French “droits de la personnalité,” the Italian “diritti della personalità,” the Spanish “derechos de la personalidad,” the Portu-guese “direitos de personalidade,” and the Dutch “persoonlijkheids-

10 See section 6, below.11 For a general overview of the phenomenon of the circulation of legal patterns, see

Giorgio RESTA, “I diritti della personalità” in Guido ALPA & Giorgio RESTA, Le persone fi siche e i diritti della personalità (Turin: Wolters Kluwer Italia Giurid ica, 2006) at 382 [RESTA].

12 Rodolfo SACCO, “Legal Formants: A Dynamic Approach to Comparative Law” (1991) 39 Am J Comp L 1 at 11 [SACCO].

13 See Gert BRÜGGEMEIER, Aurelia COLOMBI CIACCHI & Patrick O’CALLAGHAN, eds., Personality Rights in European Tort Law (Cambridge: Cambridge University Press, 2010).

14 See E.C.J. (Grand Chamber), eDate Advertising GmbH v. X, and Olivier Martinez, Robert Martinez v. MGN Limited, C-509/09-C-161/10 [2011] E.C.R.; E.C.J. W intersteiger v. Products 4U Sondermaschinenbau GmbH, C523/10 [2012] E.C.R.

15 See lastly Von Hannover v. Germany (No 2), Nos 40660/08 and 60641/08 [2012] ECHR.

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rechten.” For a European jurist, these expressions convey the same set of meanings and designate a suffi ciently homogeneous complex of rules and institutions. But, does this still hold true outside Europe? In particular, can we freely switch, without fear of misunderstanding, from the French “droits de la personnalité” or the German “Persön-lichkeitsrechte” to the English “personality rights”?

These are some of the questions that I would like to address in this paper. A few years ago, Paul Schwartz undertook a similar exercise, refl ecting on the possibility of translating “privacy” with “Privatheit.”16 Here, the problem goes the opposite way, for it concerns the possibil-ity of translating the German “Persönlichkeit,” or the French “per-sonnalité,” with the English “personality.” The substance, however, is fundamentally the same: in both cases we are confronted with the issue of determining whether two equivalent words (privacy / Privatheit; personality / Persönlichkeit) actually correspond to two equivalent concepts. To answer this question we must embark on a comparative and historical analysis: no legal concept – as is well known – may be grasped by abstracting it from the social, cultural and institutional conditions that favored its emergence and diffusion within a certain legal tradition.17 This holds true for privacy and personality rights as well.18 In this paper, I will proceed as follows. After a brief survey of the uses of the notion of “personality right” in select civil law and common law jurisdictions (section 2), I will focus on the early history of this category with the aim of providing some insight into the dis-tinctive features of the continental idea of “protecting personality” (sections 5 and 6). I will take “privacy” as the best proxy for the concept

16 Paul M. SCHWARTZ, “Das Übersetzen im Datenschutzrecht: Unterschiede zwischen deutschen und amerikanischen Konzepten der ‘Privatheit’” in Armin Paul FRANK et al., eds., Übersetzen, verstehen, Brücken bauen: Geisteswis-senschaftliches und literarisches Übersetzen im internationalen Kulturaustausch (Berlin: Erich Schmidt Verlag, 1993) 366 [SCHWARTZ].

17 See generally Richard HYLAND, Gifts: A Study in Comparative Law (Oxford: Oxford University Press, 2009) at 69.

18 SCHWARTZ, supra note 16 at 366-67.

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of “personnalité / Persönlichkeit” (given the limited aims of this paper, I will conventionally assume a suffi cient homogeneity between the French and German approaches) and I will try to empirically test their differences by examining the specifi c issue of commercial exploita-tion of personality (sections 3 and 4). In the conclusion, I will sum-marize the main fi ndings of the analysis, contrasting two different conceptions of safeguarding personhood in private law and clarifying to what extent the civilian droits de la personnalité should be re-garded as intraduisible (sections 7 and 8).

2. Born in Europe, the notion of “personality rights” has estab-lished itself in many extra-European civil law countries – Brazil being a signifi cant example19 – as well as in mixed jurisdictions. The latter are the most interesting cases.

Louisiana and Scotland recognize the category, albeit only at a doctrinal level.20 In Quebec, “personality rights” have also obtained explicit legislative recognition.21 In the Code civil du Bas-Canada no reference was made to the concept of droits de la personnalité, which, at that time, were completely unknown in France and Germany as well. Borrowed from French legal scholarship, the notion is now en-shrined in the new Civil Code of Québec (C.C.Q.). Article 3 of the C.C.Q. reads as follows: “Toute personne est titulaire de droits de la

19 Indeed, the new Civil Code of Brazil of 2002 devotes a specifi c chapter (Chapter 2 of Book 1, Title 1) to “direitos da personalidade” (see Paulo MOTA PINTO, “Direitos de personalidade no código civil português e no novo código civil bra-sileiro” in Alfredo CALDERALE, ed., Il nuovo codice civile brasiliano (Milan: A. Giuffre, 2003) 17 [PINTO].

20 See REID, supra note 5 at 387; Patrick N. BROYLES, “Intercontinental Identity: The Right to the Identity in the Louisiana Civil Code” (2005) 65 La L Rev 823 at 848; Niall R. WHITTY & Reinhard ZIMMERMANN, eds., Rights of Personality in Scots Law: A Comparative Perspective (Dundee: Dundee University Press, 2009) [WHITTY & ZIMMERMANN].

21 See POPOVICI, supra note 3 at 355; France ALLARD, “Les droits de la person-nalité” in Collection de droit 2005-2006, vol. 3, Personnes, famille et successions (Cowansville, Que.: Éditions Yvon Blais, 2005) 27.

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personnalité, tels le droit à la vie, à l’inviolabilité et à l’intégrité de sa personne, au respect de son nom, de sa réputation et de sa vie privée. Ces droits sont incessibles.” The Commentary of the Ministry of Jus-tice openly states that this provision is a new one, and that it is aimed at recognizing a category of extra-patrimonial and inalienable rights, commonly known as droits de la personnalité. The English version of the same article employs the term “personality rights” as a literal equiva-lent of the French “droits de la personnalité.” In the context of a multilingual text, such a use is perfectly justifi ed: an artifi cial corres-pondence between a word and a concept is authoritatively created and does not give rise to particular diffi culties.22 However, as soon as one leaves la belle province and enters, for example, Ontario or British Columbia, the picture tends to be different and more complicated.

In the common law provinces of Canada, the expression “person-ality rights” is not generally employed in the sense of the civilian droits de la personnalité but instead as a synonym for publicity rights; indeed, it is mainly referred to in relation to the tort of “appropriation of personality.”23 Such a tort was articulated in the 1973 Ontario case of Krouse v. Chrysler Canada Ltd24 and later recognized in other com-mon law jurisdictions and provincial statutes.25 Its features are well-known: it protects against the unauthorized use of the name, the image

22 As regards the peculiar features of translation in multilingual texts, see generally SACCO, supra note 12 at 18-19.

23 See Amy M. CONROY, “Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?” (2012) 1 UWOJ Leg Stud 3 [CONROY]; Catherine NG, “A Common Law of Identity Signs” (2007) 20 IPJ 285 at 323; Jason S.T. KOTLER, “Merchandising Celebrity: A User’s Guide to Personality Rights” (2001) 16 IPJ 1 at 4 (“[a]s the law of appropriation of personality is relatively in its in-fancy, there are only a handful of cases that explore the issues of personality rights in Canada”) [KOTLER]; Conrad NEST, “From ‘Abba’ to Gould: A Closer Look at the Development of Personality Rights in Canada” (1999) 5 Appeal 12.

24 Krouse v. Chrysler Canada Ltd, (1974) 1 O.R. (2d) 225.25 CONROY, supra note 23 at 3-14; see also, for a comparative overview, Huw

BEVERLEY-SMITH, The Commercial Appropriation of Personality (Cambridge: Cambridge University Press, 2002) 3.

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and other personal indicia for commercial purposes. The emphasis is, almost exclusively, on the patrimonial aspects of the protection and on the underlying idea of a monopoly right on the commercial ex-ploitation of the personal attributes. The term “personality” is gener-ally associated, in this context, with “celebrity,” and “celebrity” is envisioned more as a property to be exploited than as a combination of personal characteristics that must be defended against serious in-fringements.26

In the United States, the concept of “personality rights” is even less frequently employed and cannot be regarded as part of the legal vocabulary. Sometimes reference is made to the “rights of personhood,” but this occurs only occasionally and does not occur in the same man-ner as in continental discourses: emphasis is placed on the relation-ships between the individual and the state (human rights dimension) and the issues concerning protection vis-à-vis private parties appear underdeveloped.27 On the other hand, the tort of appropriation of per-sonality remains under the shadow of the right of publicity.28 Interest-ingly, the idea of safeguarding an “inviolate personality” has not been alien to US doctrinal debates. In a justly famous passage in their arti-cle on the right to privacy, Warren and Brandeis stated: “[t]he princi-ple which protects personal writings and all other personal productions,

26 CONROY, supra note 23; KOTLER, supra note 23 at 4.27 See e.g. Laurence TRIBE, American Constitutional Law, 2d ed. (New York:

Foundation Press, 1988) at 1302, 1304: “[w]ords like ‘personhood’, ‘autonomy’, ‘intimacy’, ‘identity’, and ‘dignity’ have been thrust into a social and political vacuum to defi ne some reliable limits upon the state’s power to shape the behav-ior of individuals and groups, whether by controlling the experiences available to them or by regulating the experiences with which their choices confront others.” Sometimes the notion of “right of personality” is explicitly referred to in the con-text of copyright, but this happens mainly in comparative analyses dealing with the continental conceptualization of “moral rights” (see e.g. Edward J. DAMICH, “The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors” (1988) 23 Geo L Rev 1).

28 See Sheldon W. HALPERN, “The Commercial Appropriation of Personality (Book Review)” (2003) 13 Duke J Comp & Int’l 381 at 383.

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not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.”29 In a similar vein, Roscoe Pound tried to give a stronger foundation to the protection of privacy and similar in-terests by borrowing the continental category of “right of personality” (and explicitly quoting the ground-breaking writings by Gareis and Gierke).30 However, neither of the two attempts succeeded and these voices remained isolated. This is demonstrated by the enormous in-fl uence that Prosser’s four torts framework – methodologically antag-onistic to the continental approach – has had on the development of American law.31

As a result, “personality” is a term generally unheard of in Anglo-American (and in particular United States) legal discourses concern-ing the protection of an individual’s bodily and non-bodily aspects. Instead, the emphasis is placed on “privacy,” which works as the main tool for the conceptualization of dignity interests, both in the law of torts and in constitutional law,32 and is generally taken by compara-tive law scholars as the closest analogue to the continental concept of “personality.”33 Is this just a difference in style and terminology, one that possibly fades at the level of operational rules, or does it signal a deeper divergence in the civil law and common law approaches to the

29 Samuel D. WARREN & Louis D. BRANDEIS, “The Right to Privacy” (1890) 4 Harv L Rev 193 at 205.

30 Roscoe POUND, “Interests of Personality” (1915) 28 Harv L Rev 343 at 351; Roscoe POUND, “Equitable Relief Against Defamation and Injuries to Personal-ity” (1916) 29 Harv L Rev 640.

31 Paul M. SCHWARTZ & Karl-Nikolaus PEIFER, “Prosser’s Privacy and the G erman Right of Personality: Are Four Privacy Torts Better Than One Unitary Concept?” (2010) 98 Cal L Rev 1925 [SCHWARTZ & PEIFER].

32 For an introduction to the contemporary law of privacy see D. SOLOVE, Unders-tanding Privacy (Cambridge: Harvard University Press, 2008) [SOLOVE].

33 Stig STRÖMHOLM, Right of Privacy and Rights of the Personality: A Compara-tive Survey (Stockholm: P.A. Norstedt och sö ners fö rlag, 1967) at 25; SCHWARTZ, supra note 16 at 367.

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protection of personal attributes? Is privacy just another name for per-sonality, or are we dealing with substantially different conceptions?

These questions, obviously, are not new. They have been ad-dressed several times by comparative law scholars who mainly had in mind the general problem of protecting the non-pecuniary interests of the individual against violations by third parties.34 Not surprisingly, some of the most interesting studies in this fi eld deal with topics such as the “right to be forgotten” (droit à l’oubli),35 trial by media,36 post-humous dignity protection,37 workplace privacy,38 etc. However, as the defi nitions quoted at the outset of this article have shown, an issue which is currently acquiring enormous practical and theoretical im-portance pertains to the protection of pecuniary interests involved in the exploitation of personal identity. It seems useful to take it care-fully into account in any discussion about the relationship between privacy and personality rights, if not for other reasons than because it has important implications for the general problem of the commodifi -cation of personal attributes, and particularly for the much contested interaction between contract law and the human person.39

34 See e.g. James GORDLEY, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (Oxford: Oxford University Press, 2006) at 217-62.

35 Karen ELTIS, “Breaking Through the ‘Tower of Babel’: A ‘Right to be Forgotten’ and How Trans-Systemic Thinking Can Help Re-Conceptualize Privacy Harm in the Age of Analytics” (2011) 22 Fordham P Media & Ent LJ 69; Edward J. EBERLE, “Human Dignity, Privacy and Personality in German and American Constitutional Law” (1997) 1997 Utah L Rev 963 at 1019-22.

36 Note “Media Liability for Reporting Suspects’ Identities: A Comparative Analy-sis” (2007) 120 Harv L Rev 1043.

37 Hannes RÖSLER, “Dignitarian Posthumous Personality Rights – An Analysis of US and German Constitutional and Tort Law” (2008) 26 Berkeley J Int L 153 at 174, 181.

38 Matthew W. FINKIN, “Menschenbild: The Conception of the Employee as a Per-son in Western Law” (2002) 23 Comp Lab L & Pol’y J 577 at 587 [FINKIN, “Menschenbild”].

39 Muriel BOURGEOIS, La personne objet de contrat (Paris: Larcier, 2005); A ndrea BÜCHLER, “Persönlichkeitsgüter als Vertragsgegenstand? Von der

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In a previous essay, I specifi cally dealt with these topics; in par-ticular, I contrasted the United States and continental approaches with the aim of highlighting the practical consequences of the recognition of an autonomous intellectual property right to one’s own identity.40 In this paper, I would like to return to the reasons underlying the dif-ferent paths taken by the two traditions. Specifi cally, I will argue that the peculiar conception of protecting personality, which took hold at the end of the nineteenth century, signifi cantly infl uenced the way in which European continental and American law coped with a trans-formed social and economic environment. Whereas the emphasis on Persönlichkeit made it relatively easier for civil law systems to adjust their institutional frameworks, without major breakthroughs, to fulfi ll the demands of the entertainment and advertising industry, the idea of privacy proved to be, over the long run, a much more rigid and con-straining tool, favouring the introduction of a full-scale property right to the human persona (the right of publicity). A quick glance at this evolution might not only provide some insight into the issues related to the commodifi cation of identity; it also sheds light on the distinct-ive features of the concepts of Persönlichkeit and privacy, looked upon from an unusual angle.

3. The right of publicity, generally defi ned as “the right of a per-son to control the commercial use of his or her identity,”41 was fi rst recognized in the 1953 case Haelan v. Topps.42 The introduction of an autonomous intellectual property right in the “persona” was widely

Macht des Faktischen und der dogmatischen Ordnung” in Heinrich HONSELL et al., eds., Aktuelle Aspekte des Schuld- und Sachenrechts: Festschrift für Heinz Rey zum 60. Geburtstag (Zürich-Basel-Genf: Schulthess Juristische Medien, 2003) 177 [BÜCHLER].

40 Giorgio RESTA, “The New Frontiers of Personality Rights and the Problem of Commodifi cation” (2011) 26 Tul Eur & Civ LF 33 [RESTA].

41 J. Thomas MCCARTHY, The Rights of Publicity and Privacy, vol. I (St Paul, Minn.: Thomson West, 1998) at § 1-.1[B][2], 1-5.

42 Haelan Laboratories v. Topps Chewing Gum, 202 F2d 866 (2nd Cir. 1953), cert. denied, 346 U.S. 816 (1953).

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felt to be a necessary tool to meet the needs of the entertainment and advertising industry and fi ll the gaps left open by the right to privacy.43 It is useful to briefl y recall the nature of such gaps.

First, the old cause of action for invasion of privacy was often precluded by the celebrity status of the plaintiff. The contested doc-trine of “implicit waiver of privacy” had frequently been employed by the courts to prevent an inconsistent use of privacy remedies: a person who intentionally sought celebrity status could not, at the same time, commercially profi t from it and claim the violation of his or her right to be “let alone.” Similarly, the requisite of the “offensive use” worked as an effective barrier to recovery in many cases in which only the ap-propriation of the associative value of personality was at stake.44 Third, damages were not measured by the market test of unjust enrichment or lost profi ts, but were generally restrained to compensatory dam-ages for injured feelings.45 Fourth, legal persons were deprived of any protection, since no privacy right for corporations had ever been rec-ognized.46 Last, the right to privacy, as a personal right, was not as-signable and descendible. Indeed, this was the real issue behind the Haelan v. Topps controversy. It is worth recalling that in this contro-versy the plaintiff was not the baseball player, whose likeness had been traded as a card, but rather his exclusive licensee, who sought to en-

43 Melville B. NIMMER, “The Right of Publicity” (1954) 19 Law & Contemp. Probs 203. According to Michael MADOW, “Private Ownership of Public Image: Popular Culture and Publicity Rights” (1993) 81 Cal L Rev 125 at 174, the pub-lication of this essay can be regarded “as a high-class form of special-interest pleading for the star image industry” (Nimmer was at that time legal counsel for Paramount Pictures Co).

44 See e.g. Gautier v. Pro-Football inc, 106 NYS2d 553 (1951); Pallas v. Crowley-Milner & Co, 54 NW2d 595 (Mich. 1952).

45 See e.g. Fisher v. Murray M. Rosenberg, Inc, 23 NYS2d 677 (Sup. Ct 1940); M iller v. Madison Square Garden Corporation, 28 NYS2d 811 (Sup. Ct 1941).

46 See Vassar College v. Loose-Wiles Biscuit Co, 197 F 982 (WD Mo 1912); Rosenwasser v. Ogoglia, 158 NYS 56 (2d Dep’t 1916); similarly Jaccard v. RH Macy & Co, 26 NYS 2d 829 (Sup. Ct 1941), aff’d 37 NYS 2d 570 (1st Dep’t 1942); Shubert v. Columbia Pictures Corp, 72 NYS 2d 851 (Sup. Ct 1947).

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join a second licensee from infringing his monopoly of exploitation.47 To provide the exclusive licensee with erga omnes protection, the right of publicity had to be framed as a full-scale property right. The raison d’être of the right of publicity was therefore its alienability: clear proof that this legal institution was borne to serve the goal of strengthening (and not of restraining) market interests.48

Such ‘inadequacy’ was the logical corollary of the basis on which the right to privacy had originally been built. It is frequently argued that the right to be let alone, as envisioned by Warren and Brandeis, had an elitist inclination and a proprietary character: it represented more “a new name for old rights than an old name for a new right.”49 If it is indisputable that behind that project were the values and inter-ests of a privileged social class, then it would be erroneous to under-estimate the innovative elements of that legal construction. Seen from a juristic – not sociological – point of view, the recognition of the right to privacy did not consist of an extension of the old proprietary structures to a new interest. To the contrary, the right to be let alone was envisioned as a droit dissident and – as noted by Robert Post – in-tentionally modeled on the paradigm of personal rights, not property rights.50

47 For the details see J. Gordon HYLTON, “Baseball Cards and the Birth of the Right of Publicity: The Curious Case of Haelan Laboratories v. Topps Chewing Gum” (2001) 12 Marq Sports L Rev 273 at 279.

48 On this issue see ibid.; George M. ARMSTRONG, “The Reifi cation of Celebrity: Persona as Property” (1991) 51 La L Rev 443; “From the Fetishism of Commod-ities to the Regulated Market: The Rise and Decline of Property” (1987) 82 Nw UL Rev 79.

49 Antonio BALDASSARRE, Privacy e Costituzione. L’esperienza statunitense (Rome: Bulzoni, 1974) at 55; see also Mary Ann GLENDON, Rights Talk: The Impoverishment of Political Discourse (New York and London: Free Press, 1991) at 51 [GLENDON].

50 Robert C. POST, “Rereading Warren and Brandeis: Privacy, Property and Appro-priation” (1991) 41 Case W Res L Rev 647 [POST].

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The basic operational problem to be solved consisted of the intro-duction of a new cause of action for injuries not involving the viola-tion of property or contract and resulting in no other prejudice than mental anguish. This was not an easy task given the restrictions set by American law. On the one hand, injunctive relief would have been granted only in cases of injury to property. On the other hand, mental anguish was recoverable as a parasitic element of damage, that is, only in the presence of a compensable physical injury.51 The strategy chosen by Warren and Brandeis to overcome such obstacles did not rely on an instrumental conceptualization of privacy in terms of prop-erty. On the contrary, they strived to “disentangle privacy from prop-erty,” demonstrating that the protection afforded by the common law to private letters, diaries, etchings, etc. rested not on the principle of private property, but on the need to protect the integrity of personal-ity.52 Accordingly, the legal regime designed for the right to privacy was modeled more on the (personal right) paradigm of defamation than on the (property right) paradigm of copyright and was characterized by the elements of inalienability and extinction after death; further-more, the damages recoverable in case of injury were not the pecuni-ary damages for lost profi ts, but only those for mental suffering and distress.53 It is also quite clear that the whole structure of the right to privacy rested on the individualistic notion of seclusion and immu-nity,54 and that largely absent – despite the terminology adopted and the explicit reference to continental categories55 – was any ‘dynamic’ perspective of promoting the free development of personality, like the one implicit in the German discourses on the value of individuality (see section 6, below).

51 Ben E. BRATMAN, “Brandeis and Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” (2002) 69 Tenn L Rev 623 at 633 [BRATMAN].

52 POST, supra note 50 at 659.53 For a detailed analysis of these aspects, see POST, supra note 50 at 662-66.54 Solove, supra note 32 at 17-18.55 James Q. WHITMAN, “The Two Western Cultures of Privacy: Dignity Versus

Liberty” (2004) 113 Yale LJ 1151 at 1206 [WHITMAN].

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It was, therefore, a relatively narrow conception of personhood which oriented Warren and Brandeis’ project of recognizing a new cause of action for invasion of privacy; a conception that was prob-ably well-suited to the task of overcoming the existing limitations of the common law, but which had the effect of imposing rigid restric-tions, both in terms of the scope of protection and the remedial tech-niques available. This paradigm was meant to be empowering, and indeed the gradual recognition by the courts and legislatures of the new cause of action for invasion of privacy demonstrated its enor-mous success.56 However, it soon turned out to be entrapping:57 when the advent of the star system and a mass culture paved the way for the commodifi cation of the person, the right to privacy, too rigid to adjust itself to the evolution of social reality, had to be supplanted by its functional opposite, the right of publicity.

4. The development in Continental Europe has been notably dif-ferent. Briefl y, it is suffi cient to say that civil law countries have man-aged to tackle the problems of commodifi cation without doing away with the traditional system of personality protection. No intellectual property right in the persona has explicitly been recognized; in its place, the legal regime of personality rights has been adjusted and made more fl exible to afford the protection of the pecuniary interests in-volved in the control of commercial exploitation of identity.58 This

56 See generally BRATMAN, supra note 51 at 638; David W. LEEBRON, “The Right to Privacy’s Place in the Intellectual History of Tort Law” (1991) 41 Case W Res L Rev 769 at 793.

57 Oliver R. GOODENOUGH, Privacy and Publicity: Society, Doctrine and the De-velopment of Law (London: Intellectual Property Institute, 1996) at 23.

58 For a comparative overview see Huw BEVERLEY-SMITH, Ansgar OHLY & Agnès LUCAS-SCHLÖTTER, Privacy, Property and Personality: Civil Law Perspectives on Commercial Appropriation (Cambridge: Cambridge University Press, 2005); Giorgio RESTA, Autonomia privata e diritti della personalità, ( Naples: Jovene, 2005) at 123-247; Horst P. GÖTTING, Persönlichkeitsrechte als Vermögensrechte (Tübingen: Mohr Siebeck, 1995); see also Eric H. REITER, “Personality and Patrimony: Comparative Perspectives on the Right to One’s

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has led to signifi cant innovations in regard to the remedial techniques available to a plaintiff and with respect to licensing and post mortem transfer of the right. The famous Marlene Dietrich and Blaue Engel decisions of the German Federal Supreme Court are a paradigmatic example of such a strategy.59 In these leading cases, the German Fed-eral Supreme Court has made clear that, although “the general right of personality and its special forms of manifestation primarily serve the protection of non-material interests, in particular the protection of the claim of the personality to worth and respect,” they also “protect those interests of the person which are of fi nancial value.”60 Consistently, it has been confi rmed that damages may be measured by the same tests resorted to in intellectual property rights cases; the Court has also af-fi rmed the inheritability of the commercial components of the right, while confi rming that “the defensive claims which protect the de-ceased’s non-material interests are to be made by the relatives.”61 Similar solutions have also been adopted in other countries, with the result that a functional transformation has been underway, in the last thirty years, in the domain of personality protection. Instead of intro-ducing a full-scale intellectual property right to one’s own identity, freely alienable and detachable from the self, the traditional category of personality rights has been pragmatically adjusted to cope with the changed social and economic landscape. How was all of this pos-sible? Why has a radical paradigm-shift, like the one observed in the United States, not been necessary?

Image” (2002) 76 Tul L Rev 673 [REITER]; Andrea BÜCHLER, “Die Kommer-zialisierung von Persönlichkeitsgütern” (2006) AcP 300.

59 Marlene Dietrich, Bundesgerichtshof [BGH], 1 December 1999; Entscheidungen des Bundesgerichtshofs in Zivilsachen [BGHZ] 143, 214; JZ, 2000, 1056 [M arlene Dietrich]; Der blaue Engel BGH, 1 December 1999; NJW, 2000, 2201. An English translation of the Marlene Dietrich decision can be found in David S. WELKOWITZ & Tyler T. OCHOA, Celebrity Rights: Rights of Publicity and Re-lated Rights in the United States and Abroad (Durham, NC: Carolina Academic Press, 2010) at 205.

60 Marlene Dietrich, supra note 59 at 208-09.61 Der blaue Engel, supra note 59 at 209.

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The answer to this question has to be sought, once again, in the history of this fi eld of private law, and namely – I submit – in the pe-culiar notion of “protecting personality”, which took hold in contin-ental Europe at the end of the nineteenth century. To support this assertion, which is particularly important for any discourse on the re-lationship between privacy and personality, I will try, in the next two sections, to provide a schematic overview of the origins of the category of “personality rights.”

5. It is well-known that the emergence of the category of “person-ality rights” is the result of a peculiar synergy between French case law and German legal scholarship.62

Called upon to deal with an increasing number of controversies originating from the excesses of the press and the introduction of in-stant photography, French courts took advantage of the fl exibility of substantive and procedural law to develop an advanced system of pro-tection for the “new” interests of the personality. Thanks to the applic-ability of the general clause of article 1382 of the French Civil Code,63 to a wide notion of “damage” accepted by the Cour de cassation (mak-ing compensation also possible for non-pecuniary losses),64 to the

62 BRÜGGEMEIER, supra note 6 at 10-25; Stig STRÖMHOLM, Le droit moral de l’auteur en droit allemand, français et scandinave avec un aperçu de l’évolution internationale. Étude de droit comparé, vol. I, Première partie: l’évolution his-torique et le mouvement international (Stockholm: Norstedt, 1967) at 256, 303, 313-332.

63 Helmut COING, “Die Entwicklung der Persönlichkeitsrechte im 19. Jahrhundert” in Arthur KAUFMANN & Werner MAIHOFER, Rechtsstaat und Menschenwü rde: Festschrift für Werner Maihofer zum 70. Geburtstag, (Frankfurt am Main: K lostermann, 1988) 75 [COING]; Léontin-Jean COSTANTINESCO, “Die Per-sönlichkeitsrechte und ihr Schutz im französischen Recht” (1960) 159 AcP 320.

64 Gert BRÜGGEMEIER, “Protection of Personality Interests in Continental Europe – The Examples of France and Germany, and a European Perspective” in WHITTY & ZIMMERMANN, supra note 20 at 319; Henri MAZEAUD, Louis MAZEAUD & André TUNC, Traité théorique et pratique de la responsabilité civile délic-tuelle et contractuelle, t. 1, 5th ed. (Paris: LGDJ, 1957) at 383, 395.

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judge-made instrument of the astreintes (ensuring a speedy and ef-fective enforcement of judgments),65 and to the procedural technique of the ordonnances de référé (providing for preliminary measures of protection) ,66 the most urgent social demands were fulfi lled in a satis-factory manner.

The courts granted recognition to new droits subjectifs, like the right to one’s name67 and the right to one’s likeness (explicitly framed as an absolute right);68 they extended the scope of copyright to so-called moral rights;69 they strengthened the protection of secrecy af-forded by the ancient droit (in particular in regard to confi dential letters);70 and they acknowledged quite early the safeguarding of vie privée as an interest worthy of protection.71 Interestingly, neither the

65 Some examples of the use of the astreintes in the fi eld of personality rights are: Cour d’Appel de Paris, 12 December 1857 and Cour de Cassation, Chambre Civ., 6 June 1859, both in (1859) D. I 248-249; Trib. Civ. Seine, 30 April 1896, in (1896) D. II 376; Cour d’Appel de Paris, 4 August 1896, in (1897) Ann. Prop. Ind. 112.

66 First introduced under the Ancien Régime by the edict 22-1-1685, this procedure was regulated by art. 806 and following of the Code of Civil Procedure of 1806: see on the historical evolution Eduard M. MEIJERS, “Le développement des or-donnances sur référé en France” (1948) Revue historique de droit français et étranger 259; Caterina SILVESTRI, Il référé nell’esperienza giuridica francese (Turin: Giappichelli, 2005) at 21.

67 See Anne LEFEBVRE-TEILLARD, Le nom: Droit et histoire (Paris: Presses uni-versitaires, 1990) at 172 [LEFEBVRE-TEILLARD]; Joseph KOHLER, “Das In-dividualrecht als Namenrecht” (1891) 5 Archiv für bürgerliches Recht 77 at 83 [KOHLER, “Das Individualrecht als Namenrecht”].

68 For a detailed overview see Christiane DEROBERT-RATEL, “Le droit de la per-sonne sur son image à l’aube de la photographie” (2005) Rev Rech Jur Dr Prospectif 80.

69 LUCAS-SCHLÖTTER, supra note 7 at 48.70 For an historical introduction see Stéphan BALTHASAR, “Vérité et secret: la

protection de la ‘vie privée’ dans l’ancien droit allemand, français et anglais” (2006) 74 Rev hist dr 337 at 345.

71 Art 11 of the Loi relative à la Presse of 11 May 1868 (quoted also by Warren and Brandeis) afforded a criminal law protection of the “faits de la vie privée” (see

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courts nor the scholars conceptualized such solutions with reference to the notion of “personnalité” (which was still alien to the main-stream legal vocabulary). In contrast, the “droit de propriété” was fre-quently resorted to,72 and if this was possible, it was only because the French legal culture relied on a fl exible model of propriété, encom-passing both tangibles and intangibles.73

6. Most of the factors that favoured judicial activism in France were absent in Germany.74 The political fragmentation of the German territories prevented the higher courts from exerting a role similar to that played by the French judiciary for a long period (German law, by contrast, was typically evolving as Professorenrecht).75 No general clause of extra-contractual liability was in force on a national scale.76 Compensation for non-pecuniary losses arising from the violation of

Eugène HATIN, Manuel théorique et pratique de la liberté de la presse: Histoire, législation, doctrine et jurisprudence, bibliographie 1500-1868 (Paris: Librairie Pagnerre, 1868) vol. 2 at 323). The courts made use of this provision, which was in force until 1881: see Cour d’Appel de Dijon, 19 November 1873 and Cour de Cassation, Chambre crim., 28 February 1874, (1874) D. I 273; Cour de Cassation, Chambre crim., 17 February 1877, 1877 D. I 457; Cour d’Appel de Lyon, 25 April 1877, (1877) D. II 205.

72 The most famous example is offered by the right to one’s name: see LEFEBVRE-TEILLARD, supra note 67 at 172.

73 On this aspect see Albina CANDIAN, “Propriété” in Albina CANDIAN, Antonio GAMBARO & Barbara POZZO, Property — Propriété — Eigentum: Corso di diritto privato comparato (Padua: Casa Editrice Dott Antonio Milani, 1992) 187 at 237; Antonio GAMBARO, “Property — Propriété — Eigentum” in Digesto/civ, vol. 15, 4th ed. “Proprietà in diritto comparato” at 502, 516.

74 COING, supra note 63 at 78.75 See generally Helmut COING, Europäisches Privatrecht, Band II: 19. Jahrhun-

dert. Überblick über die Entwicklung des Privatrechts in den ehemals ge-meinrechtlichen Ländern (München: CH Beck, 1989) at 39, 63.

76 See Wolfgang ERNST, “Negligence in 19th Century Germany” in Eltjo J.H. SCHRAGE, ed., Negligence: The Comparative Legal History of the Law of Torts (Berlin: Duncker & Humblot GmbH, 2001) 341.

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non-bodily aspects of the personality – traditionally afforded by the actio iniuriarum aestimatoria – was pre-empted by criminal law.77

The modern history of the law of personality protection clearly refl ects such features. This is almost exclusively a product of legal scholarship, and in particular of the Germanistik.78 One ought to be reminded that the notion of “personality” (“Persönlichkeit”) origin-ated from Enlightenment philosophy and, in particular, from Kant, who saw in it a distinctive feature of the human being, the foundation of his or her attitude toward freedom.79 From such a conception the

77 COING, supra note 63 at 79. As regards the gradual disappearance of the actio iniuriarum aestimatoria, see Ute WALTER, Geschichte des Anspruchs auf Schmerzensgeld bis zum Inkrafttreten des bürgerlichen Gesetzbuches (Paderborn-München: F. Schöningh, 2004) at 299; Thomas MOOSHEIMER, Die actio iniu-riarum aestimatoria im 18. und 19. Jahrhundert. Eine Untersuchung zu den Gründen ihrer Abschaffung (Tübingen: Mohr Siebeck, 1997) at 7.

78 As regards the main features of the Germanistik (which focused mainly on G erman local sources), compared with the Romanistik (which referred chiefl y to Roman law), see generally Franz WIEACKER, Privatrechtsgeschichte der Neuzeit (unter besonderer Berücksichtigung der deutschen Entwicklung), 2d ed. (Göttingen: Vandenhoeck & Ruprecht, 1967) at 377, 403.

79 On this see Diethelm KLIPPEL, “Die Theorie der Freiheitsrechte am Ende des 18. Jahrhunderts in Deutschland” in Heinz MOHNHAUPT, ed., Rechtsgeschichte in den beiden deutschen Staaten (1988-1990). Beispiele, Parallele, Positionen, (Frankfurt am Main: Klostermann, 1991) at 348, 367. As also recalled by Klippel, Kant referred to Persönlichkeit as a “respect-inspiring idea” and as the basis of freedom and the duty of respect of every human being in Kant im Original, vol. 12, Kritik der praktischen Vernunft (Fischer, 1788) at book 1, chapter 3: “It can be nothing less than a power which elevates man above himself (as a part of the world of sense), a power which connects him with an order of things that only the understanding can conceive, with a world which at the same time commands the whole sensible world, and with it the empirically determinable existence of man in time, as well as the sum total of all ends (which totality alone suits such unconditional practical laws as the moral). This power is nothing but personality, that is, freedom and independence on the mechanism of nature, yet, regarded also as a faculty of a being which is subject to special laws, namely, pure practical laws given by its own reason; so that the person as belonging to the sensible world

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post-Kantian school of natural law inferred a rich catalogue of “innate rights” or “human rights.” Whereas “person” was a common juristic term, inherited from the Roman legal culture, “Persönlichkeit” was a “newly-created word” whose origins lay not in the law, but in Kantian moral philosophy.80 The success achieved by this notion within philo-sophical circles contributed to its widespread diffusion, but at the same time, hindered its adoption by private-law scholars, who relied on strictly positivistic canons. Savigny famously denied the admissi-bility of the so-called “Rechte an der eigenen Person” as an autono-mous category of “subjective rights”;81 and even those scholars – like Puchta – who took a different stance still tended to confuse the notion of “personality right” with the idea of “legal capacity.”

The original bond between the philosophical and legal notions of “personality right” was eventually severed by a group of Germanisten – among them, Gareis, Gierke and Kohler – who approached the prob-lem of protecting personality from a more pragmatic perspective.82 Instead of discussing at length the logical admissibility of a right hav-ing as its object the human person (a concern of the utmost import-ance for the Romanistik), they focused on a series of practical issues raised by the Industrial Revolution and the transformation of social and institutional structures. Questions concerning, for example, the legal regime of trademarks, unfair competition, protection of moral

is subject to his own personality as belonging to the intelligible [supersen-sible] world” (Immanuel KANT, Critique of Practical Reason, translated by T. KINGSMILL ABBOTT (Radford VA: A & D Publishing, 2008) at 60 (italics added).

80 Hans HATTENHAUER, “‘Person’ — Zur Geschichte eines Begriffs” in Hans HATTENHAUER, ed., Grundbegriffe des Bürgerlichen Rechts. Historisch- dogmatische Einführung (München: CH Beck, 1982) at 10-12.

81 Franz K. von SAVIGNY, System des heutigen römischen Rechts, Band 1 (Berlin: Berlin Veit, 1840) at 335.

82 Diethelm KLIPPEL, “Historische Wurzeln und Funktionen von Immaterialgüter- und Persönlichkeitsrechte im 19. Jahrhundert, in Zeitschrift für neuere Rechts-geschichte” (1982) 4 ZNR 132 at 145-155 [KLIPPEL].

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rights in copyright, control over the publication of one’s image, the validity of an employee’s covenant not to compete, and remedies against the abuse of a personal name, were at the center of their atten-tion.83 Since Roman law had not developed in this fi eld, these schol-ars were in need of new categories and points of reference. On the one hand, the statutes adopted (by the various German states and later by the Empire) on commercial law offered a rich, albeit fragmentary, re-serve of positive legal materials;84 foreign law – and in particular French law – was often resorted to as a laboratory of innovative solu-tions and practices.85 On the other hand, the pressure caused by the late diffusion of laissez-faire ideologies made it necessary to look for concepts and theories capable of providing a politically sound foun-dation for the new kinds of exclusive rights while avoiding the specter of the old ancien régime privileges.86

Whereas in France the notion of propriété worked perfectly well as a “fi ghting concept” (Kampfbegriff),87 a magic formula that could be resorted to whenever a specifi c ideological legitimization of a new legal interest was needed, in Germany this option was not available. The Pandectist school had opted for a concept of ownership (Eigen-tum) strictly limited to tangibles; thus there was no place in its system

83 See generally Barbara DÖLEMEYER & Diethelm KLIPPEL, “Der Beitrag der deutschen Rechtswissenschaft zur Theorie des gewerblichen Rechtsschutzes und Urheberrechts” in Friedrich Karl BEIER, Alfons KRAFT, Gerhard SCHRICKER & Elmar WADLE, eds., Gewerblicher Rechtsschutz und Urheberrecht in Deutschland, vol. I, (Weinheim: VCH, 1991) 185.

84 Ibid.85 The most prominent example is represented by the great comparativist and IP

scholar Joseph Kohler. See generally Barbara DÖLEMEYER, “Das Urheberrecht ist ein Weltrecht. Rechtsvergleichung und Immaterialgüterrecht bei Josef Kohler” in Elmar WADLE, ed., Historische Studien zum Urheberrecht in Europa. En-twicklungslinien und Grundfragen (Berlin: Duncker & Humblot Gmbh, 1993) 139.

86 On this issue see KLIPPEL, supra note 82 at 139-141.87 Volker JÄNICH, Geistiges Eigentum: eine Komplementärerscheinung zum Sa-

cheigentum? (Tübingen: Mohr Siebeck, 2002) at 183.

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for property rights for incorporeals.88 The rigidity of the German Eigentum shifted the attention toward other categories. The idea of Persönlichkeit was well-suited to the task: it was fl exible enough to encompass a variety of legal phenomena and, at the same time, it was perfectly in line with the ideological tenets of liberalism.89 True, the reluctance shown by Savigny and by the Historical School was an ob-stacle to the reception of the natural law model of the “Recht der Per-sönlichkeit.” However, this diffi culty could have been overcome by reshaping the whole model in a more “scientifi c” manner.

This was the achievement of a group of legal thinkers, whose contributions date back to the second half of the nineteenth century and who managed to translate the philosophical legacy of the person-hood discourse into a coherent legal dogma. Karl Gareis, in particular, laid down the foundations of the modern theory of “personality rights” in two companion essays published in 1877, which – signifi -cantly – dealt more closely with copyright, trademark and patents than with the bodily and non-bodily aspects of personality (deepened in later writings).90 In fact, in these contributions he rejected the label

88 POZZO, “Eigentum” in Property — Propriété — Eigentum, supra note 73 at 261, 317.

89 KLIPPEL, supra note 82 at 146.90 Karl GAREIS, “Die Privatrechtssphären im modernen Kulturstaate, insbesondere

im Deutschen Reiche” (1877) 3 Zeitschrift für Gesetzgebung und Praxis auf dem Gebiete des Deutschen öffentlichen Rechtes 137; ibid.; Karl GAREIS, “Das jur-istische Wesen der Autorrechte, sowie des Firmen- und Markenschutzes” in Ar-chiv für Theorie und Praxis des Allgemeinen und Deutschen Handels- und Wechselrechts (Leipzig: Arnoldische Buchhandlung, 1877) 185 [GAREIS, Die Privatrechtssphären] (translated into English: Lionel BENTLY & Martin KRETSCHMER, eds., Karl GAREIS, “Juridical Nature of Author’s Rights as well as of Trade Name and Trade-Mark Protection” Primary Sources on Copy-right (1450-1900), online: Arts and Humanities Research Council <http://www.copyrighthistory.org>) [GAREIS, Juridical Nature of Author’s Rights]. See also Karl GAREIS, Enzyklopädie und Methodologie der Rechtswissenschaft [Einlei-tung in die Rechtswissenschaft], 3d ed., (Giessen: E. Roth, 1905) at 77 (translated by Albert KOCOUREK with the title Introduction to the Science of Law (Boston:

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“Persönlichkeitsrechte” because he wanted to avoid the confusion de-rived from a notion (“Recht der Persönlichkeit”) which was philo-sophically surcharged and juridically ambiguous.91 He spoke instead of “Individualrechte,” literally rights of the individual(ity).

The fi rst of Gareis’ two essays was aimed at demonstrating the compatibility of the new intellectual property rights, incorporated into various statutory schemes, with the tenets of liberalism.92 In contrast with the stance of many critics, he maintained that effective protec-tion of the results of one’s own intellectual activity did not imply an unacceptable interference by the state on economic freedoms. In his opinion, the safeguarding of individual interests and the limiting of the “spheres of volition” of fellow citizens had to be envisioned as a means of facilitating human fl ourishing and the progress of society.93

Boston Book Co, 1911)) [GAREIS, Introduction to the Science of Law]; Karl GAREIS, “Wie weit ist ein Recht am eigenen Bild anzuerkennen und zu schüt-zen?” in Verhandlungen des Verhandlungen des Sechsundzwanzigsten Deutschen Juristentages, vol. 1 (Gutachten) (Berlin: S. Jansen, 1902) 3.

91 “The term ‘right of personality’ strikes me as either meaningless or incorrect. For ‘personality’, according to the juristic jargon, is synonymous with ‘legal capacity’. What, then, is a ‘right to legal capacity’ supposed to mean? If by ‘personality’ one were seeking to refer to the totality of personal correlations, this would be to as-cribe an incorrect meaning to the compound word which we are rejecting here. The rights we are concerned with here have nothing to do with the totality of a subject’s personal correlations. On the other hand, if by tdesignation ‘right of per-sonality’ one has in mind an axiom to the effect that: by endowing a being with personality, it acquires not just the capacity to have rights but instantly already has actual rights – rights which arise precisely from the personality (through some form of parthenogenesis!) – then one is thereby committing a most grave error which has been condemned by jurisprudence ever since the historical school started to prevail” (GAREIS, Juridical Nature of Author’s Rights, supra note 90 at 188, 198).

92 GAREIS, Die Privatrechtssphären, supra note 90.93 Ibid., at 137-39. For a detailed discussion of the arguments advanced by Gareis

see Diethelm KLIPPEL, “Die Theorie der Persönlichkeitsrechte bei Karl Gareis (1844-1923)” in Festschrift für Fritz Traub zum 65. Geburtstag (Frankfurt am Main: Deutscher Fachverlag, 1994) at 211, 220-224.

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Correct: "the designation"



The emphasis on the “free unfolding” of one’s own personality was indeed a key characteristic of German liberalism (one need only men-tion the writings by Wilhelm von Humboldt)94 and was successfully employed by Gareis to lend a stronger foundation to the interference with an unlimited freedom of competition.95 However, he took the ut-most care in making this conceptual background fi t into coherent legal categories. He therefore presented – in his second essay – a for-malized and dogmatically sophisticated theory of Individualrechte, rights “to the use and utilization of one’s own physical and mental faculties [...] to the exclusion of any attempts by others to prevent such use and utilization.”96 It is apparent from this defi nition that Gareis had in mind a system of protection capable of being applied to both personal attributes and to intellectual property, and modeled on the paradigm of “absolute rights.” Indeed, the legal character of these situa-tions consists in the fact that the subject is entitled to undertake, with

94 Wilhelm von HUMBOLDT, “Idee per un saggio sui limiti dell’attività dello stato” in Wilhelm von HUMBOLDT, Stato, società e storia, Nicolao MERKER, ed., (Rome: Editori Riuniti, 1974) 73, 77 (arguing that the highest task assigned to state action is to promote the conditions making a free and harmonious de-velopment of personality possible). For a useful introduction to the German approach to freedom and the free development of personality, see Leonard KRIEGER, The German Idea of Freedom: History of a Political Tradition (B oston: Beacon Press, 1957) 166 [KRIEGER]; Richard MÜNCH, Die Kultur der Moderne, Band 2: Ihre Enwicklung in Frankreich und Deutschland (Frankfurt am Main: Suhrkamp Verlag 1993) at 686, 772; see also Daniel TRÖHLER, “The Discourse of German Geisteswissenschaftliche Pädagogik – A Contextual Re-construction” (2003) 39 Paedagogica Historica 759.

95 It is interesting to note that one of the main tasks assigned to the theory of “per-sonality rights” consisted in the limitation of unfair competition; the protection against unlauterer Wettbewerb was explicitly based by Kohler and Gareis on the personality right of the entrepreneur (see Josef KOHLER, Der unlautere Wettbe-werb. Darstellung des Wettbewerbsrechts (Berlin: W. Rothschild, 1914) 17; Karl GAREIS, Das Deutsche Handelsrecht. Ein kurzgefaßtes Lehrbuch des im Deuts-chen Reiche geltenden Handels-, Wechsel, und Seerechts, 18th ed. (Berlin: De Gruyter, 1909) 61).

96 GAREIS, Juridical Nature of Author’s Rights, supra note 90 at 198.

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Not in italics



his faculties, the actions specifi ed by the laws and to claim for himself (also in the proprietary sense) the fruits attained through them (as an achievement of the individual), and that with regard to this subject every other juridical subject is obliged to non-obstruction, that is, to let the former undertake the given actions and to let these actions take place (including the fruits that result therefrom as an achievement of the acting individual).97

Ownership was clearly the archetype on which this theory was based. But, at the same time, the basic structure of ownership was en-riched and strengthened by a calculated emphasis on the ethical value of the protection of personality.

The juridical core and unifying trait of all these rights, he wrote, lies in the assumption that “the legal subject has the right to have his individuality recognized as such.”98 It is important to clarify what was meant by the notion of “individuality” (Individualität). In a narrow sense, individuality consists of “all that is characteristic of a subject as an individual existing on his or her own right, assumed to have vari-ous specifi c qualities.”99 But, the protection afforded by law is not limited to a simple duty to respect the interests “which a legal subject has in his existence as a person,”100 nor to safeguard a condition of se-clusion. It also involves the juridical recognition of the activity of legal subjects as individuals, and recognition of their control over what is individual about them. “The legal advantage, to which protection is assigned,” wrote Gareis, “is an unimpeded activity and expression of personal individuality.”101 Accordingly, the recognition of the inter-ests of personality is accomplished by the law in a variety of ways, namely: safeguarding personal integrity and freedom (control of the human body); making the recognition of the person as an individual

97 Ibid., at 195.98 Ibid., at 196.99 Ibid., at 195.100 GAREIS, Introduction to the Science of Law, supra note 90 at 122.101 Ibid.

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possible (protection of the personal name, trade name, trademark, like-ness, reputation); and ensuring that the authenticity of the results of an individual’s activity are affi rmed and protected (protection of works of art, inventions, etc.).

7. The essays published by Gareis in 1877 were the fi rst system-atic exposition of a juristic theory of personality rights.102 Such a theory was further refi ned and amended by both Josef Kohler, who better dis-tinguished between Individualrechte (personality rights) and Immate-rialgüterrechte (intellectual property rights), and Otto von Gierke, who eventually reinstated the original label “Persönlichkeitsrechte.” Over a few years, the notion of “personality rights” established itself as a key point of reference within the private law dogma and was suc-cessfully transplanted into the legal systems of several European countries. With respect to its practical impact, it is well-known that both the legislature and the courts refused to recognize (until the 1950s) an unbounded “right of the personality,” originally advocated by Gierke and Kohler.103 On the other hand, several “special personality rights” (besondere Persönlichkeitsrechte) were either introduced by the new civil code, which came into force in 1900 (the right to one’s name, granted by § 12), or incorporated into various statutory schemes (e.g. the right to one’s likeness: § 22 German Artists’ Copyrights Act) and recognized by the courts.104

It would be interesting to outline the evolution that followed and refl ect more closely on the various national developments, in particu-

102 See Emanuel ADLER, Die Persönlichkeitsrechte im allgemeinen Bürgerlichen Gesetzbuch in Festschrift zur Jahrhundertfeier des Allgemeinen Bürgerlichen G esetzbuches 1. Juni 1911 (Wien: Zweiter Teil, 1911) at 165.

103 BRÜGGEMEIER, supra note 64 at 327-31.104 For a detailed analysis see Diethelm KLIPPEL & Gudrun LIES-BENACHIB,

“Der Schutz von Persönlichkeitsrechten um 1900” in Ulrich FALK & Heinz MOHNHAUPT, eds., Das Bürgerliche Gesetzbuch und seine Richter. Zur Reak-tion der Rechtsprechung auf die Kodifi kation des deutschen Privatrechts (1896-1914) (Frankfurt am Main: Klostermann, 2000) 343.

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lar, in France and Italy.105 However, given the limited aims of this paper, it is preferable to stop here and try to summarize some of the distinctive features of the two conceptions of personality and privacy which took hold at the end of the nineteenth century in Europe and the United States.

First of all, the scope of these two conceptions is signifi cantly different.106 Whereas Warren and Brandeis focused their attention only on privacy, that is on the “solitude” of the right to be let alone, German legal thinkers dealt with a much wider range of interests – the interests of personality: personal integrity and control over the utiliza-tion of body parts;107 protection against unwarranted use of one’s own likeness and name;108 confi dentiality and secrecy;109 moral rights in copyright,110 etc. This is not only the result of contingent institutional and political constraints and of a distinct German tendency toward systematic legal thinking; it is also the refl ex of a peculiar cultural

105 For an overview see BRÜGGEMEIER, supra note 64 at 313-39; RESTA, I diritti della personalità, supra note 11 at 422-551.

106 STRÖMHOLM, supra note 33 at 43.107 Karl GAREIS, Das Recht am menschlichen Körper. Eine privatrechtliche Studie

(Sonderabdruck aus der Festgabe Theodor Schirmer) (Königsberg: Hartungsche verlagsdruckerei, 1900) at 1; Joseph KOHLER, “Bürgerliches Recht” in Franz von HOLZENDORFF & Joseph KOHLER, eds., Enzyklopädie der Rechtswis-senschaft in systematischer Bearbeitung, 7th ed. (München-Leipzig-Berlin: Zweiter Band, 1914) 33 [KOHLER].

108 Otto Friedrich von GIERKE, Deutsches Privatrecht (Leipzig: Duncker & Humblot, 1895) at 717-23 [von GIERKE]; KOHLER, “Das Individualrecht als Namen-recht”, supra note 67 at 77; Joseph KOHLER, Das Eigenbild im Recht (Berlin: J Guttentag, 1903); Joseph KOHLER, “Zum Autorrecht und Individualrecht. Der Fall der Bismarckphotographie” (1900) GRUR 196.

109 KOHLER, “Das Recht an Briefen” (1893) 7 Archiv für bürgerliches Recht 94; KOHLER, Bürgerliches Recht, supra note 107 at 34.

110 Joseph KOHLER, Urheberrecht an Schriftwerken und Verlagsrecht (Stuttgart: Ferdinand Enke, 1907) at 1 (distinguishing within the author’s right a copyright of a proprietary character from an Individualrecht of a personal nature); von GIERKE, supra note 108 at 748 (advancing a “monistic” reading of copyright as a person-ality right).

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background. As it has been shown, the idea of safeguarding the “per-sonality” is directly related to a particular concept of freedom de-veloped by the German philosophical and political tradition, which was deeper and more complex than the classical paradigm of negative liberties presupposed by the American approach (and exemplifi ed by the Warren and Brandeis article).111 Jim Whitman has admirably sum-marized this conception, emphasizing the fact that the Germans’ free-dom was not so much opposed to tyranny as to determinism: [t]o be free was, in the fi rst instance, not to be free from government control, nor to be free to engage in market transactions. Instead, to be free was to exercise free will, and the defi ning characteristic of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics or biology could ever capture in their rich-ness. For Germans who thought of things in this way, the purpose of ‘freedom’ was to allow each individual fully to realize his potential as an individual: to give full expression to his peculiar capacities and powers.112

Under these assumptions, fulfi llment of one’s own personality could not be achieved simply by retreating into a sphere protected by external interferences and enclosing an isolated individual (as im-plied by Warren and Brandeis’ right to be let alone), but only by en-gaging in social activities.113 As it was clearly stated by Kohler:

The right of personality expresses itself in particular in the activ-ities of the personality both in and outside the law. Personality must be permitted to be active, that is to say, to bring its will to bear and reveal its signifi cance to the world; for culture can thrive only if persons are able to express themselves, and are in a

111 See generally KRIEGER, supra note 94, passim; GLENDON, supra note 49 at 71.

112 WHITMAN, supra note 55 at 1181.113 SCHWARTZ, supra note 16 at 369, 372.

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This is a quotation: needed quotation marks before "[t]o" and after "powers"



position to place all their inherent capacities at the command of their will.114

Thus, the safeguarding of self-determination in the presentation of the self and in the utilization of personal qualities started to be en-visioned as the cornerstone of the system of personality protection.115 Whereas American law achieved a similar result only when privacy “migrated from torts into constitutional law,”116 in Germany, the pro-tection of self-determination was a task originally assigned to private law and only later strengthened by constitutional guarantees (the for-mula “free unfolding of one’s own personality” is famously enshrined in article 2 of the German Basic Law).117

This general approach has important corollaries. The private/public dichotomy and the “spatial” conception of privacy, for instance, exerted a lesser infl uence on the development of the European law of personality protection than it did in the United States.118 Since the safeguarding of privacy rested “on a rather different notion of human personhood from that implicit in the right to be let alone,”119 the “rea-sonable expectation of privacy” model has always been regarded with skepticism in civil law. The decision of the European Court of Human Rights in the controversial Von Hannover v. Germany (No. 1) is just one example of the gradual demise of a “spatial” viewpoint.120 A sim-ilar logic explains the contrasting solutions given to the issue of work-

114 Joseph KOHLER, Philosophy of Law, translated by Adalbert Albrecht (New York: AM Kelley, 1969, reprint of 1914 ed.) at 80 (italics added).

115 WHITMAN, supra note 55 at 1180-86.116 GLENDON, supra note 49 at 55.117 See Edward J. EBERLE, Dignity and Liberty: Constitutional Visions in Germany

and the United States (Westport: Praeger, 2002) at 61-82.118 SCHWARTZ & PEIFER, supra note 31 at 1974; Karen ELTIS, “Can the Reason-

able Person Still Be ‘Highly Offended’? An Invitation to Consider the Civil Law Tradition’s Personality Rights-Based Approach to Tort Privacy” (2008) 5 U Ottawa L & Tech J 199 at 203; Eberle, supra note 35 at 980.

119 GLENDON, supra note 49 at 61.120 Von Hannover v. Germany (No 1), No 59320/00 [2004] ECHR.

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place privacy. Whereas in the United States, the idea that as soon as an employee enters the workplace he or she loses any reasonable expect-ation of privacy is still widespread, in Europe such a position is gen-erally considered incompatible with the rights of personhood and the value of dignity.121

Also, having assumed the idea of self-determination as the corner-stone of the system of personality protection, it was easier for contin-ental systems to include the commercial interests in one’s identity within the protections guaranteed by personality rights. As was ex-plicitly stated by the German Federal Supreme Court in the Marlene Dietrich decision, personality rights “should [...] protect the right of free decision, belonging only to the person entitled, on the question of whether and under what conditions his picture or his name – and the same applies for other characteristic features of the personality – is used for the business interests of third parties.” 122

Along with the notion of self-determination, a key element of the continental approach has been the adoption of a remedial model based on the logic of so-called property rules.123 Paradigmatic is the case of the right to one’s own likeness.124 The nineteenth-century French case law lays down a principle according to which the publication of one’s

121 The divergence between the two approaches is summarized precisely in FINKIN, “Menschenbild”, supra note 38; Karen ELTIS, “The Emerging American Ap-proach to E-mail Privacy in the Workplace: Its Infl uence on Developing Caselaw in Canada and Israel: Should Others Follow Suit?” (2003) 24 Comp Lab L & Pol’y J 487.

122 Marlene Dietrich, supra note 59 at 209; as regards the extension of “free- determination” in personal matters to a wirtschaftliche Selbstbestimmung, see Bruno SEEMANN, Prominenz als Eigentum: Parallele Rechtsentwicklungen ei-ner Vermarktung der Persönlichkeit im amerikanischen, deutschen und schweize-rischen Persönlichkeitsschutz (Baden-Baden: Nomos Verlagsgesellschaft, 1996) at 62, 142, 157.

123 Guido CALABRESI & Douglas A. MELAMED, “Property Rules, Liability Rules and Inalienability: One View of the Cathedral” (1972) 85 Harv L Rev 1089.

124 On this see the comprehensive survey by REITER, supra note 58.

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own likeness was subject to the person’s consent. Such a rule was soon conceptualized in terms of droit subjectif à l’image and was introduced into several statutory schemes, such as the German Artists’ Copyrights Act (Kunsturhebergesetz) of 1907 and the Italian Copy-right Act of 1925 (later repealed and substituted by the new Act of 1941). As a result, a true property rule emerged according to which every individual has – under the assumptions set by the law – the right to enjoin the publication or the utilization of their likeness regardless of the nature of the prejudice being feared.125 This approach starkly contrasts with the model of protection accorded to privacy interests under the Warren and Brandeis scheme, which was typically based on liability rules.126 This also explains certain differences in the legal re-gimes whose importance can be appreciated better over the long run: for instance, the early acceptance by German and Italian law of the idea that damages for the unlawful exploitation of personality might be measured by the market test of lost profi ts or unjust enrichment;127 or the absence of any reluctance to extend personality rights – and namely identity rights – to legal persons.128

125 For further details see RESTA, supra note 40 at 49-50.126 See section 3, above.127 Among the early Italian decisions which apply the parameter of the “foregone

royalties” as a technique of assessment of damages, see App. Genua, 15 May 1936, in (1937) Dir aut 70; App. Milan, 11 July 1936, in (1937) Dir. Aut. 64; Trib. Genua, 10 May 1955, in (1955) Temi genov 304; among the leading Supreme Court rulings are Cass., 16 April 1991, n 4031, in (1992) I Nuova giur civ comm 44; Cass, 6 February 1993, n 1503, in (1994) I Giust civ 229. As regards Germany see Dahlke, BGH, 8 May 1956; BGHZ 1956 20, 345; Fußballtor, BGH, 26 June 1979; Fußballtor (1979) GRUR 732; BGH, 1-12-1999, supra note 59. For a dis-cussion see Reinhard ELLGER, Bereicherung durch Eingriff. Das Konzept des Zuweisungsgehalts im Spannungsfeld von Ausschließlichkeitsrecht und Wettbe-werbs freiheit (Tübingen: Mohr Siebeck, 2002) at 745-57.

128 See Michael MEISSNER, Persönlichkeitsschutz juristischer Personen im deuts-chen und US-amerikanischen Recht. Eine rechtsvergleichende Untersuchung des allgmeinen Persönlichkeitsrechts juristischer Personen, (Frankfurt am Main: Peter Lang, 1998); Andrea ZOPPINI, “I diritti della personalità delle persone giuridi-che (e dei gruppi organizzati)” (2002) 48 Riv dir civ 851.

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Law review: Diritto d'autore
Comment on Text
Law review: Diritto d'autore
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Law review: Temi genovese
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Law review: Nuova giurisprudenza civile commentata
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Law review: Giustizia civile



Lastly, the relationship between freedom of contract and person-ality rights also discloses some interesting divergences. Both Amer-ican and Continental law started from the assumption that privacy and personality rights are inalienable, but they took a different path when the US 2nd Circuit framed the right of publicity as a property right.129 From then on, American law accepted the idea that personal attributes can be regarded either as components of identity (privacy), or as pure commodities (publicity).130 If they have been intentionally “commodi-fi ed,” contractual freedom will generally trump most dignity claims: a solution which might result in unfairness in specifi c circumstances, but one which is coherent with the general assumption that personal interests and patrimonial interests are independent and distinguish-able.131 This approach rests on an unexpressed dichotomy between the person and the market, which is intimately related to the general private/public dichotomy. If the starting point is not the notion of “dig-nity” but that of “seclusion,” then one might convincingly argue that privacy prevails over market principles only as far as one’s own iden-tity has not been commodifi ed. By contrast, once the “persona” has transcended the intimate sphere, being transformed into a commercial good, dignity claims will yield to the principle pacta sunt servanda. This is a solution clearly exemplifi ed by the famous Brooke Shields case: here, a court held that if a contract for the publication of a nude photo of a young model has been validly concluded, she cannot with-draw her consent, even though the snapshot was taken (with her moth-er’s authorization) when she was only ten years old.132 Such a strict binary model has never been accepted by most civil law jurisdictions.

129 See section 3, above.130 See generally Jane M. GAINES, “The Absurdity of Property in the Person”

(1998) 10 Yale JL & Human 537; Alice HAEMMERLI, “Whose Who? The Case for a Kantian Right of Publicity” (1999) 49 Duke LJ 383 at especially 388, 424; John FROW, “Elvis’ Fame: The Commodity Form and the Form of the Person” (1995) 7 Cardozo Stud L & Lit 131 at 156.

131 H.P. GÖTTING, Persönlichkeitsrechte als Vermögensrechte, supra note 58 at 272.132 Shields v. Gross, 58 NY 2d 338 (1983).

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In contrast, it has generally been held that any contract aimed at the commercial exploitation of personal attributes has only a reduced binding force.133 In particular, since the famous Dumas case,134 judges and scholars have taken for granted that, in the fi eld of personality rights, consent can be revoked unilaterally, at least whenever evidence is tendered that the person would otherwise suffer moral damages.135 This is an extremely important rule, one that rests on the normative assumption that the components of identity can never be completely commodifi ed and detached from the human person. A similar well-known idea informs the legal regime of the droit d’auteur: in the civil law tradition any author is entitled to withdraw a work from public exposure, even after a contract of publication has been concluded, provided that he or she indemnifi es the publisher (droit de se repen-tir).136 Again, this seems to be a logical consequence of the peculiar notion of personality as the basis of a general duty to respect inner freedom “in the outer world”; a duty that, logically, cannot be waived or contracted out of.

8. At the end of this overview, it might be easier to understand why – and to what extent – the continental notion of droits de la per-sonnalité could be regarded as a sort of intraduisible. The obstacles to translation do not lie at the level of language: personality corresponds

133 See generally BÜCHLER, supra note 39 at 187.134 Cour d’Appel de Paris, 25 May 1867, in (1867) Ann. Prop. Ind. 247; S, 1868, II,

41.135 See e.g. Cour de Cassation 19 November 2008 no 27506, in (2009) I Foro It 2728;

LG Köln, 20 December 1995; (1996) AfP, 186; Oberlandesgericht [OLG] M ünchen, 17 March 1989; (1989) AfP 570. It is interesting to note that the prin-ciple according to which consent may be unilaterally withdrawn (under some conditions) is enshrined both in art 2 of the Spanish Organic Law on the protec-tion of personality (see Luis Humberto CLAVERÍA GOSÁLBEZ, “Negocios ju-rídicos de disposición sobre los derechos al honor, la intimidad y la propia imagen” (1994) 47 Anuario de derecho civil 31 at 43) and art 81 of the Civil Code of P ortugal (Pinto, supra note 19 at 53).

136 Henry HANSMANN & Marina SANTILLI, “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis” (1997) 26 J Legal Stud 95 at 139.

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change: "Corte di Cassazione"
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almost perfectly to Persönlichkeit or personnalité. Rather, what is lacking is an equivalent legal concept. The reason, as we have seen throughout this paper, is not only related to the emphasis placed on the dimension of rights, in civil law, and the preeminence of remedies, in common law.137 Indeed, this aspect is undoubtedly important and should not be disregarded, which is indirectly demonstrated by the fact that “droits de la personnalité” are generally addressed within the theory of rights and duties, whereas “privacy” is a topic usually dealt within the context of torts. More signifi cantly, however, is the pres-ence of different visions of the value and the need for protection of personhood in private law.138 Whereas common law has taken privacy as a starting point, and this has historically been based on the idea of (negative) liberty, the cornerstone of the civil law model has been per-sonality, which was originally bound up with the notion of dignity. Together with other aspects, like the peculiar attitudes toward the doc-trine of the state’s obligation to protect fundamental rights139 or the scope of the constitutional guarantee of freedom of the press,140 these cultural traditions have strongly impacted the evolution of private law in North America and Europe. Although “distances” in comparative law are always relative and should not be exaggerated, it is important to underline that the conceptual gap here is also coupled with remark-able differences in the legal regimes. Such differences do not only

137 See generally Ugo MATTEI, “Diritto e rimedio nell’esperienza italiana ed in quella statunitense: Un primo approccio” (1987) 4 Quadrimestre 341.

138 Of course dichotomies should not be overemphasized, since no legal tradition is monolithic and differences are also often reproduced internally (see Robert C. POST, “Three Concepts of Privacy” (2001) 89 Geo LJ 2087); as regards the “transatlantic divide” see also Francesca E. BIGNAMI, “European Versus Amer-ican Liberty: A Comparative Privacy Analysis of Antiterrorism Data Mining” (2007) 48 BCL Rev 608.

139 See e.g. Dieter GRIMM, “The Protective Function of the State” in Georg NOLTE, ed., European and US Constitutionalism (Cambridge: Cambridge University Press, 2005) 137.

140 See e.g. Roger ERRERA, “Freedom of Speech in Europe and the USA” in ibid., at 43.

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pertain to the degree of protection afforded by the law of extra-con-tractual liability, but are also emerging on the frontier of contract law. Conceiving of “personality rights” as an expression of dignity gener-ally allows civil law systems to set stricter constraints on the exercise of contractual autonomy and on the transformation of personal attrib-utes into pure commodities.141 In general, the discourse of person-hood seems to create a stronger barrier against the assimilation of persons into things: this is another reason why the Wikipedia article on “personality rights,” quoted at the outset of this paper, is a mislead-ing one and cannot be relied upon as a model of legal translation.

141 RESTA, supra note 40 at 54-65; Karl-Nikolaus PEIFER, “Eigenheit oder Eigen-tum – Was schützt das Persönlichkeitsrecht?” (2002) GRUR 495.

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