[Foundation-l] Free images and model releases

[Gregory Maxwell]

It appears that it is widely known and accepted within the Wikimedia
projects that the law in some countries makes images with identifiable
persons whom did not consent to the photography problematic.

What seems to have been far less discussed is that if we are going to
worry about things which are merely civilly actionable that the
problem isn't just limited to "some countries".

In the US persons who have their clearly identifiable image used for
commercial purposes for which they did not consent have little
difficulty getting a judgement in their favor.  Since this is the
case, can we really regard an image with identifiable people to be as
free as an image without identifiable people or an image with
identifiable people and a suitable release?

What really brought my attention to this matter is an image recently
proposed as a featured image on enwiki:
http://en.wikipedia.org/wiki/Image:Sunbathe_Buttocks.jpg ... Now it
may be that the image was created with the consent of the subjects, I
don't intend to criticize this particular image...   But really, lets
consider such an image with identifiable subjects who didn't know the
image had been taken.  What if she were to return to her dorm room and
find the Wikipedia article on sunbathing stapled to it?   Were the
image taken without her consent it's quite possible that she'd be
pissed, and I believe that she'd be justified. There is no reason that
illustrations like this in Wikipedia can't be ones which are created
with the subjects consent.  So even ignoring any possible legal issues
with such images, I think we're breaking good ethics to use images
like this without the subjects consent.

Here is a US centric article discussing the matter:
http://www.danheller.com/model-release.html

On enwiki we already have established practices which absolutely place
free images over non-free images. For example, given two images which
serve the same purpose one which is available under a free license and
one which we could only try to claim fair use for, we will always
replace the fairuse image with the free image and we will not permit a
free image to be replaced by a fair use image... Even if the free
image is of lower quality.

I'm considering proposing an addition to that practice, saying we
should always prefer free licensed images which have no identifiable
people or for which we have appropriate model releases over images
with identifiable people and without releases.

No image deletion runs, no prohibitions against uploads, just a
preference. In the majority of subjects on Wikipedia, any identifiable
people are fairly incidental to the actual subject of the
photograph.... Encouraging people to avoid getting identifiable shots
of people where possible would probably be good for overall image
quality even ignoring the potential legal and ethical implications,
because clearly identifiable faces can be distracting.

Thoughts?  I'm especially interested in knowing how the French
Wikipedia handles identifiable images of people.