ATR wrote:
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).
If a litigious industry like the entertainment industry has never so
much as bothered to file a case anywhere on something like this, I think
there's a message in that.
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.
It will probably be an even longer time before the question of moral
rights is sorted out. Parody as fair use is essentially a US concept,
but even elsewhere there is a recognition that public figures leave
themselves open to this sort of thing.
To some extent we can say that our free use is what allows downstream
users to copy, edit and republish our material. We assure him of that.
We have no control over the user's changes to the material in a way that
might leave to a violation of moral rights.
Ec