Strategic American Four Data vs Privacy

Authored by Joel Drotts Juris Doctorate of Honest Value Web Services
www.workerwon.com Page 1
Avatars are you!
  
Avatars are computer
assembled collections of
identifying information
meant solely to depict and
transmit copies of a
consumers likeness, or
electronic depiction and/or
likeness of individuals
assembled digitally from
collected information for
commercial use, which are
devoid of any discernable
message to communicate
other than to describe,
depict, display, or use for
commercial purposes a
person’s likeness, and as
such are subject to licensing
and permission
requirements for those data
collectors and assemblers
whom sell avatars for
targeted advertisement
purposes or other profitable
commercial purposes!
Authored by Joel Drotts Juris Doctorate
The Future of Privacy
Do data collectors and the companies that
sell your information owe you royalties from
the profits?
In an article titled, “The
Internet of Things Will
Thrive by 2025. Many
experts say the rise of
embedded and wearable
computing will bring the
next revolution in digital
technology,” by Janna
Anderson and Lee Rainie.
The two authors for the
Pew Research Internet
Project
(http://www.pewinternet.or
g/2014/05/14/internet-of-
things/), along with a great
many respected marketers,
social scientists, gurus,
and technology trend
watchers all predict and
make the case for an
extremely connected
future.
Pew Research Internet
Project stated:
“The vast majority of
respondents to the 2014
Future of the Internet
canvassing agree that the
expanding networking of
everything and everyone—
The Strategic American
Honest Value Research Produced by Joel Drotts J.D.
Doctorate
Volume Four
The key is they express nothing to communication
other than the likeness of a consumer for
commercial purposes!

the growth of the Internet of
Things and embedded and
wearable devices—will have
widespread and beneficial
effects by 2025. They say the
opportunities and challenges
resulting from amplified
connectivity will influence
nearly everything, nearly
everyone, nearly
everywhere…. Some 1,606
experts responded to the
following question:
‘The evolution of embedded
devices and the Internet/Cloud
of Things—As billions of
devices, artifacts, and
accessories are networked, will
the Internet of Things have
widespread and beneficial
effects on the everyday lives of
the public by 2025?’
‘Eighty-three percent of
these experts answered “yes”
and 17% answered “no.”
They were asked to elaborate
on their answer and a handful
of grand themes ran through
their answers.’”
However, before we all
go surrendering what little
right to privacy and dignity
as human beings we have
left, “Before they put the
implants in our heads,”
may I offer a bit of advice
and a theoretical possible
push back from us
dinosaurs whom still
believe in privacy, the
United States Constitution,
and were dumb enough to
graduate from law school? I
know they say we’re
outdated, the Legal
industry that is, what with
our procedures, paper
books, and need for
precedent, and so I’m sure
this legal theory and
argument may not sit well
with those who prefer
targeted advertising and
computers that know what
you want before you even
do. However, should any
one ever get a hair up their
butt, want to save personal
privacies for themselves or
future generations, or just
want to show people how
clever they really are they
could proffer forth the
following legal arguments
and throw some real
wrenches in this over
connected future of 2025.
What’s that you say, just
exactly where would such a
lone crusader of law,
humanity, privacy, and the
United States Constitution
metaphorically fashion
both sword and shield alike
with which to fight this
quest of juris prudence
from? Oddly enough the
answer to that question lies
in several and varying State
Laws on Publicity Rights,
Copyright Protections, a
United States Supreme
Court case, the United
States Copyright and
Patent Office, and the
licensing fees they protect.
Got you curious don’t I?
Well then, let’s begin shall
we?
As I’m sure you’re
about to ask me the
relevant question of “What
do Publicity Rights,
copyright, and licensing
ones’ own image have to do
with the interconnected
future?” Let me head you
off at the pass, by
explaining a bit more in
depth. The way that
publicity rights, copyright,
and licensing ones’ own
likeness will begin to play
an ever larger part in the

defense of privacy, data
collection and sales, and
targeted content marketing
advertising is Avatars!
“What are Avatars you ask?”
I knew you were a sharp
one, so allow me to reward
your sharp powers of
observation and practical
relevance with the
following: “Avatars; noun;
An avatar is a computer
assembled collection of
identifying information
meant solely to depict and
transmit a copy of a
consumers likeness, or
copies of an individuals’
likeness assembled digitally
from collected information
for commercial uses that
are devoid of any
discernable message,
artistic creativity in its
assembly, or attempt to
communicate or convey
any idea either privately or
publically other than an
individuals’ likeness for
commercial purposes.”
©joeldrotts 2015
For those of you who
are still confused, think of
Avatars as, simply put,
your digital character or
character likeness snap shot.
An avatar is the sum total
of all your electronic
capturable or collectable
personal information an on-
line data and information
collecting and aggregating
algorithm, bot, or program
can capture, store, and sell
to any interested party for
marketing purposes. Most
Avatars are compiled into a
likeness profile or snapshot
so personal most people
would rather a naked
picture of themselves be for
sale on the retail data
market, as opposed to the
extraordinarily intimate
information that actually
do comprise an avatar. An
avatar is your digital
likeness, an on-line perfect
reflection of you created
from the compound
information trail you leave
behind, when every time
you do anything in our
modern interconnected
world. Think about it. Your
identifiable information
that is unique to only you is
monitored, collected, and
combined as often as
possible to willing
marketing purchasers, so
they can use that
aggregated information to
target and market
specifically to you. The
information collected is so
personal and compiled so
much that it quite literally
becomes your digital
likeness; or an avatar.
This information is gather
and collected in our
modern connected age any
time you turn on your
computer or TV to find out
the media you consume,
what time you consumed it,
and how long it took you to
consume it; every time you
make a phone call, to find
out who you talked to,
from where, and for how
long; every time you make
a purchase of almost
anything unless by cash
and without utilizing any
“member” or “preferred
customer” code or card, to
find out your purchasing
habits and product tastes;
every time you check out a
book at the library, to find
out what you’re reading
and are interested in; smart

connected homes now
monitor the hours you have
the lights on in your home,
to find out your sleep
patterns; when you’re
home, to find out your
travel patterns; when
you’re at work, to find out
your life patterns; what you
like; who you know; how
many kids you have; do
you want kids; your
favorite color; the type of
car you drive; where you
last vacationed; doctor
visits and prescriptions;
your eating habits; and
that’s just to name a few.
I often vision avatars as
little computer generated
on-line characters of all of
us, created from the
aforementioned
information and meta-data
we leave behind on the net,
and if the theorists are right
the types and amounts of
information comprising an
avatar will only grow.
Meanwhile your privacy
will obviously suffer and
decline, as avatars will soon
also include your where-
about, where-have-been,
heart rate, breathing, and
so much more. These
likenesses and characters
are created and sold for and
to any and every paying
retailer or marketer looking
to get you to spend your
money buying their goods
and services.
The information your
likeness provides is then
used to market goods and
services to you directly and
individually. This form of
targeted advertising is
often done in such a
manner it often times blurs
the line between a
consumer’s conscious
decision to make a
purchase of goods or
services; and a targeted
media propaganda
campaigns of consumerism.
These individually targeted
propagandized media
campaigns of consumerism
can be and are spread
across several different
media distribution
platforms such as TV,
smartphone, internet, radio,
and more, at different times
of the day, utilizing various
content based advertising
methods. These content
marketing methods often
hide the fact one is even
being marketed or
advertised to. These
targeted campaigns
bombard the senses of the
targeted consumer buyer so
often and in so many settle
and nonobvious ways that
the practice can arguably be
considered a form of light
brainwashing.
“Ok, I get it! Our
information is constantly
being collected, updated,
and collected, which creates
avatars of our likenesses.
So what if our likenesses
are being used like this?
What can be done about it
anyway?”
I love it when you ask me
the right questions, and
once again allow me to
reward your curiosity with
the following legal facts
and arguments in answer.
A California statute
GRANTS the right of
publicity to specified
successors in interest of
deceased celebrities,
prohibiting any other
person from using a

celebrity’s name, voice,
signature, photograph, or
likeness for commercial
purposes without the
consent of such successors.
(Former Civ. Code, § 990.)
In other words to create
and sell avatars, these
companies must pay
royalties for the use of our
personal information!
The United States
Constitution however
prohibits the states from
abridging, among other
fundamental rights,
freedom of speech. (U.S.
Const., 1st and 14th
Amends.). In one of the
seminal California State
Supreme Court cases to
resolve the legal conflict
between the First
Amendment and Civil
Code section 3344
(hereafter section 3344.) The
Court of Appeal concluded
that the lithographs and
silkscreened T-shirts at
issue in the case received
no First Amendment
protection simply because
they were reproductions
rather than original works
of art. The California
Supreme Court ruled, “This
was error: reproductions
are equally entitled to First
Amendment protection.
The Court formulated
instead what is essentially a
balancing test between the
First Amendment and the
right of publicity based on
whether the work in
question adds significant
creative elements so as to
be transformed into
something more than a
mere celebrity likeness or
imitation. Applying this
test to the silkscreen shirts
that depicted the likenesses
of the Three Stooges in the
case, the Court concluded
that there are no such
creative elements and that
the right of publicity
prevails.
In the State of California
and many others the right
of publicity is both a
statutory and a common
law right. The statutory
right originated in Civil
Code section 3344
(hereafter section 3344),
enacted in 1971,
authorizing recovery of
damages by any living
person whose name,
photograph, or likeness has
been used for commercial
purposes without his or her
consent. Eight years later,
in Lugosi v. Universal
Pictures (1979) 25 Cal.3d
813 (Lugosi), the Court also
recognized a common law
right of publicity, which the
statute was said to
complement (id. at p. 818
and fn. 6). But because the
common law right was
derived from the law of
privacy, the Court held in
Lugosi that the cause of
action did not survive the
death of the person whose
identity was exploited and
was not descendible to his
or her heirs or assignees.
(25 Cal.3d at pp. 819-821.)
In 1984 the Legislature
enacted an additional
measure on the subject,
creating a second statutory
right of publicity that was
descendible to the heirs and
assignees of deceased
persons. (Stats. 1984, ch.
1704, § 1, p. 6169.) The
statute was evidently
modeled on section 3344:
many of the key provisions

of the two statutory
schemes were identical. The
1984 measure was the
statute at issue in the case
involving the likenesses of
the Three Stooges on t-
shirts. At the time of trial
and while the appeal was
pending before the Court of
Appeal, the statute was
numbered section 990 of
the Civil Code. Section 990
declares broadly that "Any
person who uses a
deceased personality’s
name, voice, signature,
photograph, or likeness, in
any manner, on or in
products, merchandise, or
goods, or for purposes of
advertising or selling, or
soliciting purchases of,
products, merchandise,
goods, or services, without
prior consent from the
person or persons specified
in subdivision (c), shall be
liable for any damages
sustained by the person or
persons injured as a result
thereof." (Id., subd. (a).)
The amount recoverable
includes "any profits from
the unauthorized use," as
well as punitive damages,
attorney’s fees, and costs.
(Ibid.)
The statute provides a
number of exemptions
from the requirement of
consent to use. Thus a use
"in connection with any
news, public affairs, or
sports broadcast or account,
or any political campaign"
does not require consent. (§
990, subd. (j).) Use in a
"commercial medium" does
not require consent solely
because the material is
commercially sponsored or
contains PAID
ADVERTISING; "Rather it
shall be a question of fact
whether or not the use . . .
was so directly connected
with the sponsorship or
advertising that it requires
consent. (Id., subd. (k).),”
which is an obvious slam
dunk with a meta-data
avatars, which are
assembled or the digital
likenesses created
exclusively for the
purposes of advertising.
The statutory right
originated in Civil Code
section 3344, enacted in
1971, “authorizing recovery
of damages by any living
person whose name,
consent.” The avatars in
question are sold and
marketed by data miners
and algorithm creators that
ever so cleverly “capture”
the data of unsuspecting,
uninformed, unasked, and
unpaid consumers. The
avatars once assembled are
sold on an electronic
bidding and advertising
exchange market(s) for vast
amounts of profit to which
the digital likeness or
avatars’ true owner is
denied. These avatars or
digital likenesses composed
of ones likes, shopping
habits, name, age, medical
conditions, address, years
married, financial status,
phone number, age of
children, and any other
varying level of target
information captured,
recorded, reproduced, sold,
and broadcasted on the
most modern of media
platforms available to eager

retailers without the true
owners’ permission, and
without the addition of any
artistic change or creative
expression what-so-ever is
clearly the sort of usage of a
persons’ likeness that
requires permission, a
licensing agreement, and
royalties to be paid to the
true owner of the digital
likeness.
Imagine if you will that
corporate America created
photo and highly personal
stat rich cards that were
just like baseball cards, only
instead of baseball players
the photos of average
consumers adorned these
cards. Moreover, instead of
bases stolen and balls hit,
the information given was
“best time to offer product
A with the success of a
purchase,” and based on all
the personal information
included on the back of the
card. Then imagine those
trading cards were bought
and sold daily by
companies around the
country, do you suppose
the courts would require
royalties to be paid
consumers then?
If you answered yes, then
guess what? You have
officially agreed with the
crux and point of the point
of the argument I am
making. The reason why?
It’s because that’s exactly
what is happening
everyday on-line, only
those playing cards are
electronic and are called
digital advertising avatars.
The statutory right
originated in Civil Code
section 3344 (hereafter
section 3344), enacted in
1971, authorizing recovery
of damages by any living
person whose name,
consent. As noted above,
the statute makes liable any
person who, without
consent, uses a deceased
personality’s name, voice,
photograph, etc., "in any
manner, on or in products,
merchandise, or goods, or
for purposes of advertising
or selling, or soliciting
purchases of, products,
merchandise, goods, or
services . . . ." (§ 990, subd.
(a), italics added.)
Saderup’s construction
(Three Stooges case). reads
the emphasized phrase out
of the statute.
When first enacted in
1971, section 3344 -- the
companion statute
applying to living
personalities -- contained
no such phrase: the statute
simply made liable any
person who uses another’s
identity "in any manner, for
purposes of advertising
products, merchandise,
goods or services, or for
purposes of solicitation of"
such purchases. (Stats. 1971,
ch. 1595, § 1, p. 3426.) The
Legislature inserted the
phrase, "on or in products,
merchandise, or goods, or,"
when it amended section
3344 in 1984. (Stats. 1984, ch.
1704, § 2, p. 6172.) And in
the very same legislation,
the Legislature adopted
section 990 and inserted the
identical phrase in that
statute as well. (Stats. 1984,
ch. 1704, § 1, p. 6169.)

The Courts therefore
give effect to the plain
meaning of the statute: it
makes liable any person
who, without consent, uses
a deceased personality’s
name, voice, photograph,
etc., either (1) "on or in" a
product, or (2) in
"advertising or selling" a
product. The two uses are
not synonymous: in the apt
example given by the Court
of Appeal, there is an
obvious difference between
"placing a celebrity’s name
on a ‘special edition’ of a
vehicle, and using that
name in a commercial to
endorse or tout the same or
another vehicle." Moreover,
the United States Supreme
Court has made it clear that
a work of art is protected
by the First Amendment
even if it conveys no
discernable message: "[A]
narrow, succinctly
articulable message is not a
condition of constitutional
protection, which if
confined to expressions
conveying a ‘particularized
message,’ [citation], would
never reach the
unquestionably shielded
painting of Jackson Pollock,
music of Arnold
Schoenberg, or
Jabberwocky verse of Lewis
Carroll." (Hurley v. Irish-
American Gay, Lesbian and
Bisexual Group of
BOSTON, Inc. (1995) 515
U.S. 557, 569.)
In the aforementioned
Saderup’s case the Court
stated, “The fact that
Saderup’s art appears in
large part on a less
conventional avenue of
communications, T-shirts,
result in reduced First
Amendment protection. As
Judge Posner stated in the
case of a defendant who
sold T-shirts advocating the
legalization of marijuana,
"its T-shirts . . . are to [the
seller] what the New York
Times is to the Sulzbergers
and the Ochses ¾ the
vehicle of her ideas and
opinions." (Ayres v. City of
Chicago (7th Cir. 1997) 125
F.3d 1010, 1017; see also
Cohen v. California (1971)
403 U.S. 15 [jacket with
words "Fuck the Draft" on
the back is protected
speech].) First Amendment
doctrine does not disfavor
nontraditional media of
expression.”
Turning to the
present case, we note that
the trial court, in ruling
against Saderup, stated that
"the commercial enterprise
conducted by [Saderup]
involves the sale of
lithographs and T-shirts
which are not original
single works of art, and
which are not protected by
the First Amendment; the
enterprise conducted by the
[Saderup] was a
commercial enterprise
designed to generate profits
solely from the use of the
likeness of THE THREE
STOOGES which is the
right of publicity . . .
protected by section 990."
Although not entirely clear,
the trial court seemed to be
holding that reproductions
of celebrity images are
categorically outside First
Amendment protection.
The Court of Appeal was
more explicit in adopting
this rationale: "Simply put,
although the First

Amendment protects
speech that is sold
[citation], reproductions of
an image, made to be sold
for profit do not per se
constitute speech."
“ Rather, the inquiry is
into whether Saderup’s
work is sufficiently
transformative. Correctly
anticipating this inquiry, he
argues that all portraiture
involves creative decisions,
that therefore no portrait
portrays a mere literal
likeness, and that
accordingly all portraiture,
including reproductions,
are protected by the First
Amendment. We reject any
such categorical position.
Without denying that all
portraiture involves the
making of artistic choices,
we find it equally
undeniable, under the test
formulated above, that
when an artist’s skill and
talent is manifestly
subordinated to the overall
goal of creating a
conventional portrait of a
celebrity so as to
commercially exploit his or
her fame, then the artist’s
right of free expression is
outweighed by the right of
publicity. As is the case
with fair use in the area of
copyright law, an artist
depicting a celebrity must
contribute something more
than a " ‘ "merely trivial" ’
variation, [but must create]
something recognizably
‘ "his own" ’ " (L. Batlin &
Son, Inc. v. Snyder (2d Cir.
1976) 536 F.2d 486, 490), in
order to qualify for legal
protection.”
In sticking with the
Courts guidance, it is clear
that the mere collecting of
various types of
information utilize no
artistic contribution. In
other words, avatars
possess no variations or
transformative expression
of creativity, and are
merely collections of
information combined to
create an avatar so
personally identifiable and
recognizable it becomes the
likeness of the consumer or
avatar mimicking
individual. These copies of
collected, stolen, leaked, or
even granted information,
which only vary in the
amounts and types of
information, are created
with the intent to profit
directly off of who the
avatar mimics, or to profit
from the personal fame of
every celebrity or consumer.
For example, ones recorded
daily, weekly, or even
monthly travels through-
out the world, the stores
they visit, what they
purchased, their name, age,
likes and tastes, purchasing
habits, amounts of gas used,
the websites they visit,
articles they read, movies
and TV shows they watch,
friends they contact,
employment, vacation
destinations, medical
conditions, shoe size,
favorite color, and all the
nuanced idiosyncrasies that
are no more than a human
going about the world
being a human in this
modern era of inter-
connected technologies and
data gathering, all of which
has an ascertainable and
highly marketable value to
the correct purchaser
and/or interested party.

None of this information
collected is original, other
than the manner in which
the collection methods and
amounts are hidden from
the victims. The only
originality being done is by
the avatar creator, or the
individual who is being
mimicked. The individual
creates themselves, the data
is merely a monitored
collection, expressionless,
and compiled for profits
sake only.
The Transformative
Use Test
In both of the
aforementioned cases, all
judges agreed (at least
theoretically) that the
appropriate test was the
“transformative use
defense” developed by the
California Supreme Court
in Comedy III Productions,
Inc. v. Gary Saderup, Inc.,
25 Cal.4th 387 (2001). The
test is “a balancing test
between the First
Amendment and the right
of publicity based on
whether the work in
question adds significant
creative elements so as to
be transformed into
something more than a
mere celebrity likeness or
imitation.” To make this
determination, both courts
ostensibly looked at the five
Comedy III factors,
including whether:
(1)the celebrity likeness is
one of the raw materials
from which an original
work is synthesized;
Avatars are nothing but
raw celebrity likeness.
Essentially, different snap-
shots or bits of information
about the owner of the
avatar (The person the
avatar is imitating.) are
merely observed, collected,
and often even stolen, and
then compiled into a
singular profile or
consumer avatar. Therefore,
without the raw essence of
being who we are, an
avatar could not be
constructed.
(2)the work is primarily
the defendant’s own
expression if the
expression is something
other than the likeness of
the celebrity;
There is absolutely no new
artistic expression, change
in the material or collected
information what so ever.
Information is merely
compiled in an
unexpressive or
transformative manner.
(3)the literal and imitative
or creative elements
predominate in the work;
The entre avatar is nothing
but literal imitative
collections of personal
information, compiled in a
manner devoid of
transformative artistic
expression.
(4)MARKETABILITY and
economic value of the
challenged work derives
primarily from the fame of
the celebrity depicted; and
The entire point of an
avatar is to market and
profit from the fame and
celebrity of each consumer
individual, as an avatars
value is in its ability to

depict the avatars owner
doing exactly what the
owner does on a daily basis.
The shopping habits,
spending habits, payment
cycles, doctors’ visits, food
eating habits, gas bills, and
every other collectable
peace of observable
information all compiled to
form a highly personal
likeness of the individual
doing exactly what makes
the individuals’ avatar of
commercial value; simply
being themselves as we’re
monitored by intrusive
data collection practices.
(5)an artist’s skill and
talent has been manifestly
subordinated to the overall
goal of creating a
conventional portrait of a
celebrity so as to
commercially exploit the
celebrity’s fame.
That is an excellent
description of exactly what
an avatar is. Any skill or
talent in collecting the
information or compiling
the information is grossly
subordinated, by the only
goal in creating an avatar,
which are commercial and
financial gains.
In both cases, the
majority opinions relied
heavily on the case of No
Doubt v. Activision
Publishing, Inc., 192
Cal.App.4th 1018 (2011). In
the No Doubt case,
members of the rock band
“No Doubt” appeared in a
game published by
Activision called Band
Hero where users could
simulate performing in a
rock band in time with
popular songs. Activision
licensed No Doubt’s
likeness, but exceeded the
scope of the license. When
the 9th U.S. Circuit Court of
Appeals analyzed
Activision’s
“transformative use”
defense, the court ruled
against Activision because
the video game characters
were “literal recreations of
the band members” doing
“the same activity by which
the band achieved and
maintained its fame.” The
court ruled that the fact
that the avatars appear in a
context of a videogame that
“contains many other
creative elements[] does not
transform the avatars into
anything other than exact
depictions of No Doubt’s
members doing exactly
what they do as celebrities.”
Sound familiar? In a data
drunk world, our right to
own the rights to ourselves
may just be our only legal
line of defense. As the data
bots and marketers
continue to encroach ever
deeper into the information
generated by ever
increasingly personal and
intimate aspects of our
daily lives, this legal theory
may be our only weapon!
Some may argue avatars
are not likenesses, but then
what are they if not
collections of identifiable
information baring our
names and more? That
argument is a fool’s
argument, and therefore I
have not given such a
ridiculous notion any lip-
service or time. These
theories are just that legal
untested legal theories and
arguments, no matter how
sound they may be. Maybe

AN HONEST VALUE INFORMATIONAL RESEARCH PRODUCT
legislation will be passed
and it will not be up to the
Courts to sort this mess out,
but as the Legislature
grows ever more out of
touch the data minors grip
on our avatars becomes
ever stronger!
Author: Joel Drotts
HONEST VALUE
1250 La Cumbre Rd
Hillsborough, CA, 94010
www.workerwon.com
Interested Parties of America and beyond.

Strategic American Four Data vs Privacy

Related slideshows

More Related Content

Strategic American Four Data vs Privacy