The Law of Reputation and the Interest of the Audience

IntroductionWhen Shakespeare wrote in Othello, "Who steals my purse steals trash; 'tis something, nothing;/'Twas mine, 'tis his, and has been slave to thousands;/But he that filches from me my good name/Robs me of that which not enriches him,/And makes me poor indeed," he was ex- pressing a universal sentiment: the importance of reputation.1 Shakespeare's equation of reputation to monetary wealth suggests a simple, property-based interest in reputation: it is something that is owned, can be stolen, and has a calculable value. Many legal and cultural discussions of reputation reinforce this view, suggesting that one's reputation is a matter predominantly of individual or corporate interest and therefore is something over which one can and should have control.2But reputation is not property in a Lockean sense; rather, reputation is a social creation dependent on intergroup communication. Although an individual or firm may have control over many of the statements, acts, and other data points that form the basis of reputation, neither one ultimately has control over the result of that assessment, the pronouncement of which is a task reserved to others. At its core, then, reputation is the result of the collective act of judging another and the potential use of that result to direct future engagements.3 Although an individual may suffer emotional harm and a corporation may lose profits as a result of reputational injury, these harms are derivative. Injury to an individual's or firm's reputation causes harm primarily because of the effect of that injury on such collective judgments, which may then result in other harms.Various areas of the law are either designed to vindicate reputational harm or have been used by plaintiffs to do so. Defamation and product disparagement claims often involve the publication of false facts that are alleged to have injured the plaintiffs reputation. Privacy law (such as the false light and misappropriation torts) and the right of publicity can involve misimpressions created as to another's associations or affiliations, which can have reputational effects. False endorsement claims seek remedies for the unauthorized implication that one supports a product or service when one does not desire such association. Various aspects of trademark law target uses of a trademark that are said to have negative effects on a firm's or brand's reputation. Copyright lawsuits can seek to redress not only economic harms but also the use of one's creative material in a way that casts a shadow on the artist's intent or affiliations. The common thread among all these various causes of action, from the plaintiff s view, is that the defendant has made an express or implied false statement that causes disruption to the plaintiffs sense of identity or autonomy. But this interest is not equally reflected in each of these causes of action. As a result, we have areas of the law that have reputational harms as a core concern and largely focus on that interest (defamation and trademark infringement) ; areas of the law that are not designed to vindicate reputational harms but often are used in service of that goal (copyright law, right of publicity, and privacy law) ; and areas of the law that are supposed to be about reputation but upon closer inspection do not truly address reputational interests (trademarkdilution).This state of affairs has resulted, in part, from a focus on the plaintiffs interests. Scholars have offered various justifications for the law's protection of reputation, including that it should be protected as a property interest; that it should be protected in order to preserve human dignity; and that it should be protected to vindicate society's interest in a hierarchal system of honor and prestige.4 While these explanations are illuminating, each of them focuses on the law's interest in reputation from the perspective of the holder of reputation, consistent with a civil litigation structure that assumes that plaintiffs are acting in their own interests. …