[Foundation-l] Celebrity pictures

[ATR]

 | Date: Tue, 29 Aug 2006 09:36:30 -0400
| From: Anthony <wikilegal at inbox.org>
| Subject: Re: [Foundation-l] Celebrity pictures
| To: "Wikimedia Foundation Mailing List" <foundation-l at wikimedia.org>
| Message-ID:
| <71cd4dd90608290636p645474e7m1f132123a17319e9 at mail.gmail.com>
| Content-Type: text/plain; charset=ISO-8859-1; format=flowed
|
| On 8/29/06, Ray Saintonge <saintonge at telus.net> wrote:
| > Anthony wrote:
| > >On 8/28/06, Ray Saintonge <saintonge at 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)