[Foundation-l] Celebrity pictures

Ray Saintonge saintonge at telus.net
Wed Aug 30 06:19:57 UTC 2006

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.


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