| Date: Tue, 29 Aug 2006 09:36:30 -0400 | From: Anthony wikilegal@inbox.org | Subject: Re: [Foundation-l] Celebrity pictures | To: "Wikimedia Foundation Mailing List" foundation-l@wikimedia.org | Message-ID: | 71cd4dd90608290636p645474e7m1f132123a17319e9@mail.gmail.com | Content-Type: text/plain; charset=ISO-8859-1; format=flowed | | On 8/29/06, Ray Saintonge saintonge@telus.net wrote: | > Anthony wrote: | > >On 8/28/06, Ray Saintonge saintonge@telus.net wrote: | > >>Perhaps more significant than whether anyone has lost is whether any | > >>such case has ever been filed. Given that they are distributed for the | > >>specific purpose of publicity there could be an implicit permission. | > >> | > >> | > >If you're using the image for the purposes of promoting the person. | > >If, on the other hand, you're using the image to sell an encyclopedia | > >article which portrays the person in a way which they don't want to be | > >portrayed, then there probably isn't implicit permission. | > > | > I don't know if it's to "sell" an encyclopedia. Lindsay Lohan would | > need to think she's pretty special if she believes a picture of her will | > make all the difference in encyclopedia sales. Is she as self-absorbed | > as Paris Hilton? Our use is transformative, and it in no way adversely | > affects the company's sales.. It would even be interesting to hear the | > companies comment on the function of publicity shots. | > | I was talking about reuse. Specifically, someone who was selling | print encyclopedias with the current Lindsay Lohan article in it. I | didn't mean to imply that the selling point was the picture, but | merely that the encyclopedia was being sold. | | > >Maybe I'm overly paranoid, but even here in the US where we have some | > >very strong fair use and first amendment rights, I still wouldn't feel | > >comfortable selling an encyclopedia with the current [[Lindsay Lohan]] | > >article in it, without first receiving permission from the copyright | > >holders of the images. | > >(http://en.wikipedia.org/w/index.php?title=Lindsay_Lohan&oldid=72480012 | > >in case it changes before this is read) | > > | > This may be a problem for the print version, and specific permissions | > should probably be sought when we get that far. For the on-line | > verrsion however I have no problem with an active campaign to replace | > the fair use images with "free" ones. It's clear that I'm more risk | > tolerant than you, but that doesn't mean there's such a wide gap between | > our views. | > | I don't think it makes sense to have such significant differences | between the print version and the online version. Other than that, I | agree with you though. I wouldn't have a problem distributing the | current article online. In fact, I have a website where I'm doing it. | | Jimbo has stated, long in the past, that he doesn't want the print | version to be a fork of the online version. Maybe he's changed his | mind, but if not I think you have to consider the print and online | versions to be the same thing. | | > >Frankly I think that case could be probably be won by the museum on | > >appeal, if they spent enough money fighting it. | > > | > Yeah, Dillinger has been dead since 1934. | > | In Indiana the right to publicity persists after death, though. | | > >Besides, there are | > >always going to be crazy jurisdictions (like Indiana, apparently) with | > >laws so out of touch with reasonableness that we just can't follow | > >them. | > > | > Developing policies to account for such extremes is playing to the | > lleast common denominator. | > | Absolutely. I agree. But at the same time, US fair use is an extreme | too, just on the other end of the spectrum. | | > >As for relying on the copyright holder of the image finding the | > >Wikipedia article "respectful", well, I just think that's a horrible | > >thing for us to even have to consider. Would Linsay Lohan (*) object | > >to our portrayal of her in "Media spotlight"? I don't know, and I | > >don't care. | > > | > There's also the question of who owns the copyright. I suspect it's the | > studio who sends out fan pics to admirers. | > | I would think, with a publicity photo, that it'd be the publicist. | | Anthony |

Might also the NY Times test apply here? Celebrities, being public figures should be viewed in public. A publicity photo is just for that purpose, to have the person's photo be put out into the public. Besides the strict fair use argument (there is no loss to their marketplace by putting the celebrity photo out) one could also argue that a plain head shot (that does not involve any creative positioning etc.) really the photo belongs to the celebritity (and usually they own those photos by contractual work made for hire agreements anyway) not to a publicist or other third party (though sometimes photos made for specific publications are copyright by that publication as part of a story that is being done for that publication). A regular publicity photo might only have a claim by the celebrity and in that case one might even argue that under the NY Times test that as long as actual malice does not apply to use of the photo, that the photo can be reproduced anywhere else (I haven't done any caselaw research on this so I cannot state that this would prevail but it seems a reasonable argument to make now).

This question also opens up all the moral rights questions associated with altering someone's work. Obviously if some punk rocker took a GFDL released photo (with a right of publicity implicitly released) from someone's profile on WP and then altered it into making them look "evil" that could be considered defamatory (either as a breach of privacy or perhaps some other tort, if not actual defamation) and so one could argue that the GFDL and CC never include permission for such tranformations of an image, even a public domain image could be the basis of a tortious transformation. If it were just being used in another encyclopedia article how could they argue that an accurate image of their face damages them in anyway (including under copyright laws) since that is the reason they released the photo in the first place? Having the photo used in a thumbnail in an encyclopedia is just enhancing their celebrity status, not causing them to loose money. It is the other transformative uses that need to be looked at, I think.

Of course if the GFDL were drafted by an Canadian open source foundation then the whole bundle of moral rights protections would definitely apply, besides the right of pubicity issues, but in the US it is not so clear even though it signed the Berne Convention it has limited moral rights protections under the [[Visual Artists Rights Act]] that only apply to limited types of "works of visual art" as defined in Title 17 USC sec. 101 and do not cover publicity photos.

alex756 (IAAL)