Consider the term "identity theft." Then consider whether the thing that was stolen from the brokers who sell so much personal information about you, or the companies that use this information about you, was only stolen from them—or was also originally stolen by them from you.

There’s an important question here about identity that has never been fully addressed. Specifically, whether your identity is a copyrighted asset that belongs to you—an asset that is currently being used by others without making royalty payments to its true owner.

To understand some of the legal issues here, one need first understand a bit about the copyright process.

—To be copyrightable, something must be a unique creation (usually an artistic creation) in a fixed and tangible form. Does your personal identity fit this definition? Of course it does. For better or worse, it is unique. No one else replicates it. Also, for better or worse, it is a personal artistic expression (visual, audial, conceptual, etc.) that is performed daily by you. As for a fixed and tangible form—the fact that information based on this expression appears in all sorts of reports and other documents obviously meets this criterion.

— Does this unique creation in a fixed and tangible form have value that needs to be protected? Again, the answer is yes. A person’s name per se can’t be copyrighted. If I’m John Doe and you’re John Doe, I can’t copyright the name and make you pay a royalty to use it. But the situation is different when a name becomes fused with a marketable identity. Such identities do have value. Thus, you can’t put a famous designer’s name on jeans that you manufacture because doing so doesn’t just involve a name but a marketable identity. And isn’t your own identity as important to you as the designer’s identity is important to him or her?

— To be copyrightable something need not be registered with the government. It need not even have a © sign attached. The copyright comes automatically in tandem with the creation. In order to sue over a copyright infringement in federal court, however, something must be registered with the Copyright office. This is a very simple process. You can get the form on the Internet and the cost is just $35. It’s probably not worth copyrighting all your copyrightable assets, but when it comes to your personal identity...

—A copyright is not automatically transferred (sold) when someone pays for the creation. If the creator doesn’t produce it on a work-for-hire basis (i.e. for a full-time employer), the creator retains the copyright unless there is a formal agreement about copyright transfer.

— You can’t claim something is a unique and original creation just because it throws together a lot of diverse information in a certain way. That is why, for example, phone books can’t be copyrighted. And why throwing together a lot of personal data about you doesn’t mean it is necessarily copyrighted by the companies that do the throwing together.

— Copyright laws may be violated when copyrighted material to which a company has bought the rights is mixed together with material to which it doesn’t own the rights without permission of the latter’s owner. So, for example, if a contract you have with a credit card issuing company contains a provision that in return for the issuer making a loan it can sell or otherwise transfer personal information about you to others, this doesn’t necessarily mean that the buyer of this data can then just co-mingle it with other data which was not legally acquired. If I buy from Disney the right to use Mickey Mouse in an ad, that doesn’t give me the right to also use Donald Duck without an agreement to do so from the company.

When you take account of all these considerations, it becomes clear that your identity may, in fact, be copyrighted. And if this is the case, those who use it should only do so with your permission, and only after paying you a royalty for the privilege. This is certainly a moral issue—one with strong legal supporting elements.

You may wish to contact information brokers, credit reporting agencies and others who buy and sell your personal identity to discuss this matter. If your Identity has value (and since its is now being bought and sold it clearly does), shouldn’t you at least get a piece of the action?

© Michael Silverstein