In cities across the country, artists, protesters, and businesses are using light projections to turn any building’s facade into a billboard without the owner’s consent. Examples are legion: “Believe Women” on a New York City Best Buy; a scantily clad male model on the side of an apartment building; a nativity scene on the Los Angeles chapter of the American Civil Liberties Union. Two courts have considered claims by owners seeking to stop these projections under theories of trespass and nuisance. In each case, the court held that because light is intangible and the projections resulted in no economic harm to the property, the common law affords no relief. This Article argues that property law can and should authorize projection claims by private owners. It traces the history of property tort claims involving light, explaining how the law developed to emphasize economic and physical harm and identifying the forgotten strands of doctrine that nonetheless support liability for targeted projections. Projections are forms of appropriation: not only do they disrupt the owner’s use and control, but they also cause dignity and privacy harms by exploiting the owner’s realty toward unwanted ends. Protections for these noneconomic interests have long been parasitic on trespass and nuisance, but the light projections expose a gap between the two forms of action. This Article argues that, despite hurdles in both nuisance and First Amendment law, tort law can mend this gap by more flexibly defining harm to encompass activity without economic or physical consequences that would nonetheless be perceived as harmful by ordinary citizens, particularly if intentional and limited in independent utility. More generally, the projection cases teach broader lessons about the development of the property torts, the concept of appropriative harm, the relationship between privacy and property, and the nature of property itself.
In recent years, a unique form of protest has grown in popularity: projecting messages onto buildings with light.1×1. This form of protest has been used with increasing frequency since the 1960s, but many of the controversies have occurred in the last five years, perhaps because the cost of projecting is lower than it was decades ago. See Corinne Segal, Projection Artists Bring Light to Social Issues with Attention-Grabbing Protests, PBS NewsHour (Sept. 17, 2017, 2:44 PM), https://www.pbs.org/newshour/arts/projection-light-artists-protest [https://perma.cc/ZXH7-MQG5]. Projector machines are also smaller — the Nomadix iProjector, developed in the United Kingdom, is wearable. See iProjector, Nomadix Media, http://www.nomadixmedia.co.uk/iProjector [https://perma.cc/2SNE-ES6R]. During a labor dispute in Nevada, union members put a message that noted a restaurant’s health code violations onto the restaurant.2×2. Int’l Union of Painters & Allied Trades Dist. Council 15 Local 159 v. Great Wash Park, LLC, No. 67453, 2016 WL 4499940, at *1 (Nev. Ct. App. Aug. 18, 2016). In 2013, Kanye West debuted his music video for the song “New Slaves” on sixty-six buildings,3×3. Miriam Coleman, Kanye West Premieres “New Slaves” with Video Projections Around the World, Rolling Stone (May 18, 2013, 1:22 PM), https://www.rollingstone.com/music/music-news/kanye-west-premieres-new-slaves-with-video-projections-around-the-world-171436 [https://perma.cc/L7NM-Q4NB]. in at least some instances without required permits.4×4. Brandon Soderberg, Cops Shut Down Kanye West’s “New Slaves” Projections in Two Cities, Spin (May 28, 2013), https://www.spin.com/2013/05/kanye-west-new-slaves-projections-shut-down-police-houston-baltimore/ [https://perma.cc/GN7D-PSMW]. The group Survivors of the Abortion Holocaust routinely projects graphic images on restaurants and Planned Parenthood facilities and, in one case, put a nativity scene on the local American Civil Liberties Union.5×5. See Survivors of the Abortion Holocaust, Facebook (Jan. 19, 2019, 6:13 PM), https://www.facebook.com/WeAreSurvivors/posts/10155905269771080 [https://perma.cc/NV8N-C7Z6] (restaurant); Survivors of the Abortion Holocaust, Facebook (Jan. 17, 2019, 4:00 PM), https://www.facebook.com/WeAreSurvivors/posts/10155901009096080 [https://perma.cc/944S-TJHD] (Planned Parenthood); Survivors of the Abortion Holocaust, ACLU Christmas Eve Nativity Projection, Facebook (Dec. 24, 2018), https://www.facebook.com/events/773353426334741 [https://perma.cc/P3E3-7Y5K]. T-Mobile has tried to create viral content for its social media pages by projecting its logo and advertisements onto the side of Comcast’s Philadelphia headquarters.6×6. John Legere (@JohnLegere), Twitter (Oct. 22, 2018, 11:27 AM), https://twitter.com/JohnLegere/status/1054439033420505093 [https://perma.cc/RE49-RJTG]. And, perhaps most famously, protesters have used projectors to place “Emoluments Welcome” over the doors of President Donald Trump’s D.C. hotel.7×7. Nicole Hensley, Artists Project “Emoluments Clause” on Trump International Hotel in D.C., N.Y. Daily News (May 15, 2017, 11:53 PM), http://www.nydailynews.com/news/politics/artists-project-emoluments-clause-trump-hotel-article-1.3169102 [https://perma.cc/45VT-RC2W].
At least two courts have considered tort claims by private property owners seeking to stop displays like these — targeted projections, also known as projection bombing or guerrilla projections8×8. Samantha Corbin & Mark Read, Tactic: Guerrilla Projection, Beautiful Trouble, https://beautifultrouble.org/tactic/guerrilla-projection/ [https://perma.cc/XLT9-QXYW]; Cindy Davis, Projection Powers Protest Movements, Systems Contractor News (Mar. 6, 2018), https://www.avnetwork.com/systems-contractor-news/projection-powers-protest-movements [https://perma.cc/EBJ9-C3X9]. — and neither decision came out favorably for the owner.9×9. Int’l Union of Painters & Allied Trades Dist. Council 15 Local 159 v. Great Wash Park, LLC, No. 67453, 2016 WL 4499940, at *3 (Nev. Ct. App. Aug. 18, 2016); Urban Phila. Liberty Tr. v. Ctr. City Organized for Responsible Dev., Nos. 171002675, 3686 EDA 2017, 2017 WL 7313667, at *7–10, *8 n.7 (Pa. Ct. Com. Pl. Dec. 28, 2017). Indeed, targeted projections do not seem to give rise neatly to liability under any property tort framework. Courts in most states have held that invasions of property by particulates like noise, smoke, odor, and light are not trespasses.10×10. But see Borland v. Sanders Lead Co., 369 So. 2d 523, 52728 (Ala. 1979) (recognizing intangible trespass); Martin v. Reynolds Metals Co., 342 P.2d 790, 792–94 (Or. 1959) (same); Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 78788 (Wash. 1985) (same). And if owners try to claim that projections are private nuisances — or even trespass in the few states that would consider light under that rubric — the relevant tests require physical harm, actual damage, or significant interferences with the use of property, harms that temporary projections do not typically cause. Because the projections are often fairly short in duration and do not cause lasting damage to the structure or its value, they will not support nuisance claims.11×11. See Restatement (Second) of Torts §§ 821F, 827 (Am. Law Inst. 1979). Efforts to combat light projections outside the common law — say, through existing local ordinances on light pollution, graffiti, or the “unlawful posting of advertisements” — have tended to fail to prevent targeted projections, whether because they have been construed to apply only to physical postings,12×12. See Segal, supra note 1 (describing a court rejecting application of the unlawful advertising ordinance because it was “‘intended to cover only the physical placement of tangible objects or substances,’ and did not cover the use of light”). Indeed, in that case, New York City ended up paying the light protesters $4,500 to settle after the court found no grounds for arresting them for projecting a message onto the Metropolitan Museum of Art. Id. because they cover advertisements but not all forms of messaging, or because they contain other limitations.13×13. A Chula Vista light ordinance, for example, forbids “commercial or industrial operation[s] to display lights in such a manner so that the beams or the rays from the light source shall be directed to and unshielded from adjacent residential properties.” Chula Vista, Cal., Municipal Code § 17.28.020 (2019), https://chulavista.municipal.codes/CVMC/17.28.020 [https://perma.cc/KRE4-J8GT]. This would not seem to cover the sorts of light projections at issue here because of the use categories. See also N.Y. Penal Law § 145.60 (McKinney 2019) (defining misdemeanor graffiti as “etching, painting, covering, drawing upon or otherwise placing . . . a mark upon public or private property with intent to damage such property,” which would not seem to cover uses of light).
To date, light protests on private property have occurred primarily on the sides of commercial buildings.14×14. This Article is limited to examining projections on private rather than public property. Projections on public property are no doubt occurring, see, e.g., John Walsh, Activists Projected the Phrase, “Kavanaugh Is a Sexual Predator” onto a Courthouse Building in Washington, Bus. Insider (Sept. 26, 2018, 2:39 AM), https://www.businessinsider.com/activists-projected-kavanaugh-is-a-sexual-predator-onto-washington-courthouse-2018-9 [https://perma.cc/3KM3-2XS3], but they raise different questions, such as how to categorize government facades under public forum doctrine and how to assess the reasonableness of restrictions on the time, place, or manner of projections, see Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–48 (1983); Lehman v. City of Shaker Heights, 418 U.S. 298, 303–04 (1974) (plurality opinion). Despite this distinction, in its capacity as an owner, the government has property rights that support the traditional tort actions of trespass and nuisance. See City of Providence v. Doe, 21 A.3d 315, 320 (R.I. 2011). While some of the interests described in this Article sound in personality, others are more property-based, so the insights generated might prove useful in analyzing restrictions on projection in that context. The debate over why we extend some tort protections to governments versus the persons they ordinarily protect is a rich one, and an excellent recent treatment is Paul B. Miller & Jeffrey A. Pojanowski, Torts Against the State, in Civil Wrongs and Justice in Private Law (Paul B. Miller & John F.K. Oberdiek eds., forthcoming 2020) (on file with Harvard Law School Library). Future projections might be turned on residences and homes. While many of the projections so far are political, one can imagine other light messages, ranging from the critical to the commercial to the idiosyncratic. Imagine, for example, PepsiCo choosing to project its logo on New York facades instead of buying billboards, or an exuberant neighbor deciding to light up all the houses on the street with falling snowflakes during the holiday season.
This Article uses the light projection cases to diagnose larger problems in the development of property law. It examines how light came to escape the coverage of the property torts, identifies the dormant property interests that these new uses of light bring into focus, and, finally, uses the projection cases to reveal broader lessons about the relationship between privacy and property and the development of the property torts. Using decades of doctrine, this Article marshals support for the ideas that intentional projection is a harm and that owners can prevent appropriations of property that displace their control and commandeer property to others’ communicative purposes.15×15. Although I use the term “owner” as shorthand throughout this Article, the property torts can protect the interests of parties in possession, including tenants. See Gaetan v. Weber, 729 A.2d 895, 898 (D.C. 1999) (collecting citations). The interferences caused by projection belong to a new class of appropriative harms: those that disrupt the owner’s authority over property and exploit it toward the appropriator’s ends. These sorts of harms may arise outside the context of projection, in other places where new technologies permit others to modify the appearance of or communications from land, buildings, or airspace without physically traversing boundary lines,16×16. See supra notes 2–4 and accompanying text. making the framework outlined here useful for reasoning about how the law might also extend to cover those circumstances.
The only work on light projection to date suggests that high-level theories of property offer limited tools for addressing the problems posed by targeted projection.17×17. R. George Wright, The Projected Light Message Cases: A Study in the General Erosion of Free Speech Theory, 51 Ind. L. Rev. 583, 583–84 (2018). This Article takes a different position by beginning from the ground up. It critically examines strands of doctrinal evidence — real property cases, tort law and treatises, criminal and even constitutional rules — to argue that the law already recognizes a private owner’s paramount rights to prevent communicative appropriation, whether tangible or not. Because these rights against appropriation — part privacy, part property — have long been parasitic on physical trespass for protection, the light cases now expose a glaring lag in the property torts. To remedy this lag, nuisance law offers a flexible pathway for protecting an owner’s communicative interests against intentional interference. Alternatively, nuisance principles can help form a foundation for legislation regulating projection. In legislation governing land use and property rights, the common law of nuisance has often been used as a backdrop for establishing that the primary purpose of regulation is to prevent systematically what the law already recognizes as harmful.18×18. See Morton J. Horwitz, The Transformation of American Law 1870–1960, at 28 (1992); Joseph L. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 155–61 (1971).
The approach in this Article is modeled, in part, on a time-honored method for sensing the precipice of a shift in tort law. In 1890, Samuel Warren and future-Justice Louis Brandeis authored The Right to Privacy, assembling out of a mass of tort, contract, and property doctrine an inchoate interest deserving of independent protection.19×19. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). In fact, they styled themselves as part of a much longer evolutionary history in tort law, explaining growth from the starting point of trespass to more modern torts involving unfair competition as the result of economic, social, and technological pressures.20×20. Id. at 193–95. The authors explained that technological and social change forced this privacy interest to the fore: trends in photography, recording devices, and the newspaper trade set them to examining “whether the existing law affords a principle which can properly be invoked to protect . . . the individual,” a question that they answered in the affirmative.21×21. Id. at 197; see id. at 195–97. In the late 1930s, legal scholars including Professor William Prosser collected evidence that courts were close to recognizing an action for intentional infliction of emotional distress, despite protestations to the contrary and “strained” efforts to bring these actions within the ambit of property or other tort claims.22×22. William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874, 874, 880 (1939); see Fowler V. Harper & Mary Coate McNeely, A Re-examination of the Basis for Liability for Emotional Distress, 1938 Wis. L. Rev. 426, 429; Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1067 (1936); Prosser, supra, at 874. This shift occurred at the same time as even legal scholars began taking notice of advances in scientific understanding of the connection between mental distress and behavioral and physical consequences.23×23. Herbert F. Goodrich, Emotional Disturbance as Legal Damage, 20 Mich. L. Rev. 497, 500–01 (1922). In both examples, courts and legislatures ultimately took up the call to recognize the harms and interests that scholars had traced in response to new pressures. This Article proceeds in a similar vein: it examines the trajectory that led to this point, treats new problems as a call to search for deeper principles, and uses those principles to prescribe how the law should change to solve the underlying problems.
Part I explores the doctrinal history surrounding light claims in property law: how the cases came to require economic or sensory harm for relief, though with stray language about the potential differences should light cases ever involve targeted projections rather than bright ambient glare. This Part also examines the cases decided in the past few years where courts have considered targeted projections specifically. These courts have emphasized the lack of physical, sensory, or pecuniary harm in finding projections generally nonactionable.
Part II takes up the resulting invitation to examine whether property law should afford owners protection against unwanted communications on their land or buildings. It broadens the lens to a wider range of doctrine outside trespass and nuisance — other areas of property, tort, criminal, and constitutional law — locating evidence that the law has generally prohibited communicative uses of another’s land or buildings and protected the image or presentation of property crafted by the owner. In each case, strands of doctrine support the idea that intentional interferences with these owner interests are or should be actionable. But the strictures of trespass and nuisance law leave affected owners no obvious pathway for relief. The Part concludes by defining the injury accompanying projection as appropriative harm. The term appropriation is used in both property and privacy law to describe exploitation of something belonging to another, as well as a loss of control on the part of the owner. The projection cases highlight the connection between privacy and property and a paradox in property’s failure to recognize projections as the basis for a cause of action. Projections cause harm to property owners both by diminishing the property’s use and by affronting the owner’s dignity and privacy interests by making him or her an unwitting billboard. Though privacy interests are often described by analogy to real property, the increasingly economic focus of trespass and nuisance law has oddly left dignity and privacy interests without protection where real property is concerned.
Part III turns to the ways the law might grow to provide redress for appropriative harms. It explains that appropriative harms are likely to occur in other contexts and defends using a tort law framework — nuisance — to prevent unauthorized communicative uses. At a minimum, tort principles can be used to lay groundwork for future legislation governing projection. But, as this Part explains, with little change, the traditional nuisance test can be more expansively interpreted to recognize and compensate for unwanted projections.
Part III concludes by considering a looming problem whenever either judicial action or legislation threatens to impede communicative activity: the prospect that the First Amendment’s freedom of speech guarantee should immunize potential wrongdoers from liability. Already, fear of First Amendment consequences is creeping into courts’ analyses of whether to find targeted projections actionable. The final section defines the relevant interfaces between the First Amendment and tort cases involving projection, explaining the puzzles relating to state action and free speech easements on private property that the projection cases might newly raise. Importantly, however, there are First Amendment values on both sides here: permitting projections evokes compelled speech doctrine and the harms associated with misattribution and manipulation of one’s self-presentation to the public. While there are valid objections to assigning default communicative rights to property owners — the distributional inequities of underlying property entitlements, for example — there are equally powerful reasons to fear that proliferated projection rights will undermine the goals of free expression as much as they would undermine settled property expectations. Put another way, the First Amendment, like nuisance itself, may provide a safety valve for some projections in limited circumstances, but in most cases, the owner’s communications on his or her property deserve primacy.
* Assistant Professor, Harvard Law School. This paper benefitted from workshop participants at the University of Virginia School of Law, UCLA School of Law, Temple University Beasley School of Law, Antonin Scalia Law School, St. John’s University School of Law, the Harvard-Yale-Stanford Junior Faculty Forum, and the Property Works in Progress Confer-ence at Boston University School of Law. I am grateful to Ken Abraham, Aditya Bamzai, Bruce Boyden, Rick Brooks, Chris Buccafusco, Eric Claeys, George Cohen, Charlie Donahue, John Duffy, Lee Fennell, Kim Ferzan, John Goldberg, John Harrison, Leslie Kendrick, Kate Klonick, Brian Lee, Julia Mahoney, Mark McKenna, John Monahan, James Penner, Sai Pra-kash, Avery Rasmussen, Ben Sachs, Fred Schauer, Liz Sepper, Jeremy Sheff, Joe Singer, Jason Smith, Paul Stephan, James Stern, Gregg Strauss, Eva Subotnik, Katrina Wyman, and Taisu Zhang for helpful comments and conversations. Kyle Brumm, Jordin Dickerson, Wil Gould, Joey Knofcyznski, Michael McGuire, Tomi Olutoye, Cody Reeves, and Maya Rich provided outstanding research assistance, and I am indebted to the University of Virginia School of Law, as well as law librarians Ben Doherty, Micheal Klepper, Kent Olson, and Amy Wharton for their research support. I am grateful for outstanding substantive suggestions and editorial assistance from the editors of the Harvard Law Review. I am especially thankful to Jack Brady, Debbie Hellman, Cynthia Nicoletti, Rich Schragger, Henry Smith, and Jay Swanson for commenting on early drafts.