CHAPTER 2: THEORETICAL FRAMEWORK1.? ?Labour? ?TheoryThe labour theory forms the foundation commonly advanced by judges and scholars to provide a justification for the protection of personality rights. This theory dates as far back as 1954 when Melvin Nimmer espoused that a sportsperson who has “long and labouriously nurtured the fruit of publicity values,” and expended “time, effort, skill, as well as money” in their creation is presumptively? ?entitled? ?to? ?enjoy? ?them? ?on his own.?A renowned professor by the name Thomas McCarthy views the right of personality as “a ‘common-sense’, self-evident right requiring minimal intellectual rationalisation to justify its existence.
” This statement is backed up by John Locke’s labour theory of property. According to Locke, the right of personality is natural and owned by self which justifies? ?property.Locke’s labour theory could be used to award a property right to sportspersons for the protection of their persona, where they have expended time, effort and investment in building their celebrity status. That identity, embodied in his or her personal traits, is “the fruit of their publicity values” which must not be reaped or sown by anyone else and ought to be classified as their personal property.He further contends that since we own and possess our labour, we have the ability to blend it with resources of the external world and in turn we effectively appropriate those resources.
” Similarly, a sportsperson may seem to have a reasonable interest in the fruits of their labour ??which created their celebrity status. Such an argument for personality rights holds the presumption that their celebrity status which carries commercial value is ‘no mere gift of the gods’. The only requirement for a famous sportsperson to exploit his or her commercial persona or image is that it has to be as a result of the individual labour expended by that specific? sportsperson.
Michael Madow states that courts usually treat commercially valuable popularity as a crown of individual achievement and such individuals are described as carefully “cultivating” their talents, slowly “building” their images, judiciously and patiently “nurturing” their publicity values, and working long and hard to make themselves famous, popular, respected,?? beloved. However, other scholars hold a contrary view that the commercially marketable personality of a sportsperson is not as a result of his or her expended labour.Among those scholars who find flaws in the labour-based moral argument includes Justin Hughes who states that from a realistic viewpoint, persona is not normally a by-product of labour.
He explains that unlike politicians who put in effort to build their image in the public eye, sportspersons do not labour to? ?create? ?their? ?public? ?images.It therefore begs the question of whether personality rights arise out of a joint effort comprising of a sports person’s choices and labour, social demands and genetic traits. Richard Dyer explains that despite our genetic construction (which is beyond our control) establishing the ‘raw material’ for our appearance, the actual labour of structuring the image is not necessarily attributed to the bearer of the image alone. Probably most importantly of all, the commercial ?value of a sports person’s persona is based on notoriety of the product.Judith Williamson furthers the argument that a sports person can enhance the marketability of the products which he or she endorses ?only if it already means something to the rest of us. Williamson explains that normally famous sports person’s images are used to create and convey meaning and identity, and it is only due to the ability of these images to communicate meaning that they are able to enhance the attractiveness of the commodities which they endorsed.
In effect, such commodities can be valuable in the market only when people take notice and attach importance to the sportsperson’s image.This deeper understanding that fame is a “relational” phenomenon, i.e. provided by others, also means that the premise by Professor McCarthy was inaccurate. In short, a sportsperson can neither claim to have created his public image nor claim to the exclusive ownership or control of? ?the? ?commercial benefits attached?? ?to? ?it.2. Private Property TheoryPersonality rights are justified by the Hegelian metaphysical concept of property which dictates that an individual’s property is the extension of his personality.Intellectual property theorists derived this personhood approach from theories of Kant and Hegel, who viewed private property as embodiment of the personality.
They support the contention of private property rights in one’s personality as they promote self-expression and human development and thus contribute to the society. Therefore an individual’s personality embodies emotional, dignitary, human and moral values attached to it. Professor Kwall argues that the doctrine of moral rights could be extended to constructed personas to protect personality and reputational aspects of celebrities. The persona projected by the celebrity is his creative child and his livelihood depends on its preservation and integrity.The effort in constructing a celebrity persona represents an intellectual, emotional and physical effort, comparable to that of an author.
This effort ought to be protected from all kinds of encroachment, economic or otherwise. But mass media often violates personality rights by associating celebrities with products and activities which are contrary to their image.https://onlinebooks.io/intellectual-property-is-common-property/1-classical-justifications-intellectual-property-rights/