Much of the recent coverage of the new Brooke Shields documentary on Hulu rightly focuses on the chilling exploitation and sexualization of the star as a child, and then celebrates how far we have come, noting that sexualized and sexist depictions of a young actress would not be tolerated in the same way today. Lost in these (perhaps overly) hopeful visions of progress is the story of a growing threat to the next Brooke Shields of the world. There is a growing trend in states across the country of making the rights to a person’s own name, likeness, and voice transferable to others. Protection against unauthorized uses of one’s name or likeness is a good thing, but allowing the transfer of such rights is not. Once someone’s identity is transferable, then troubled and financially strapped parents (like Shields’ mom), as well as predatory agents, managers, companies, and organizations, will be armed with the ability to strip anyone, including aspiring models, actors, musicians, and student-athletes, of their rights to their own identities.
Shields was a victim of this in her youth. Her mother transferred to a photographer Shields’ right to her own likeness, in the context of nude photographs of her taken when she was a child. As an adult, Shields was not able to stop the use of those images because a court ruled that her mother, as her guardian, had had the right to sell or license Shields’ rights to her own name and likeness. Shields is not alone. Other courts have held that parents can sell and license their children’s name, image, and likeness rights (sometimes called a “right of publicity”). Given the recent elimination of the NCAA’s ban on student-athletes commercializing their identities, we should be particularly concerned about parents and others taking ownership and control over children’s identities—college teams often recruit athletes as early as middle school. If such athletes’ rights to their names and likenesses are transferred away by their parents, the law makes no provision for them to be reclaimed, even when the children turn 18.
This danger is becoming worse because what was once thought of as a personal right that could not be transferred away is increasingly being treated (or adopted by statute in some states) as a “freely transferable” property right. One can now sell the right to one’s own (or one’s child’s) name, likeness, or voice as if it were a car or a house—even though these attributes of a person are inseparable from them. So, if Shields’ mother were to have sold Shields’ right of publicity in its entirety to a third party when she was a child, rather than making a transfer that was limited to the context of specific photos, Shields would not have been able to control what uses were made of her name, likeness, or voice, and might even have been barred from choosing what professional projects she wanted to participate in.
The right of publicity—the right to control unauthorized uses of a person’s identity—began to be adopted in the United States starting in the late 1800s and early 1900s to counter the use of unauthorized images (especially photographs) of people (both famous and ordinary), which were then sometimes put in advertisements without the person’s consent. This right of publicity is now explicitly recognized in almost every state and provides important protections against exploitation. But it cannot do this job if it can be stripped from the very people it is meant to protect.
Parents may often act in a child’s best interest, but states should not presume they will. Historically, parents and other adults have exploited children, especially ones who are likely to have significant commercial value because of their talents. It was because of the particularly tragic example of the child star Jackie Coogan in the 1920s that California passed what is known as the Coogan Law. This law requires that the earnings of child actors be put into a trust until they reach the age of majority. This prevents their parents from spending all of their earnings before they turn 18, which is what happened to Coogan.
Yet, current publicity laws have allowed DJ Khaled to form a company and transfer to it his infant son Asahd’s right to his own name, likeness, and voice. Olivia “Chachi” Gonzales, a teenage television personality, discovered that her mother had sold the rights to her name and identity for commercial use to a company while she was a minor. Whatever these parents’ motives, the possibility of parents selling their children’s rights to their own identities in perpetuity is chilling. Few states protect children (or adults for that matter) from such transfers.
The next Brooke Shields should not be at risk of having their name, likeness, or voice owned by someone other than themselves. And neither should the growing number of student-athletes who are being thrust into the marketplace as children. State publicity laws that protect against unauthorized uses of a person’s name, likeness, or voice can be drafted or interpreted to preclude such transfers, but thus far, the law is racing in the opposite direction. The history of exploitation of child performers provides us with a poignant lesson in why we need to stop this trend, and firmly root a person’s right to their own identity solely in themselves. This is especially true when it comes to children.
