Commons talk:Photographs of identifiable people

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Denmark needs to change so main rule is "No consent with exceptions"[edit]

The info on Denmark should be changed to: "No consent (with exceptions)". The main rule is clearly that only if the intent is to publish a portrait of a specific person do you need consent. This will actually be very seldom. Non-commercial situational photos taken in public and in most cases also in private surroundings and private property do not need any consent - even if you can easily recognize the person. Thus a picture of people in Copenhagen, swimming in Denmark, city life in Aarhus, women enjoying coffee beer at an outdoor Cafe, jogging in the park etc. etc. needs no consent. Ref: http://www.datatilsynet.dk/borger/internettet/billeder-paa-internettet/

Specific examples of pictures from Datatilsynets published guidelines that do not need consent for internet publication: - guests at a rock concert - playing children in a schoolyard - people visiting a zoo - pictures taken during klub activities - pictures of children and young people at school including private schools - pictures taken at a school x-mas holiday event

Exceptions: - People during their work - Customers inside a shop - Visitors inside a bar, discotheque etc. - Pictures that show people in compromising situations

These limitations are also only valid for internet publication. All other media can freely publish. — Preceding unsigned comment added by 125.213.206.226 (talk • contribs) 18:11, 3 July 2015‎ (UTC)

Model release - medical photos and more - legal review - WMF grant proposal[edit]

I am seeking comments and hopefully endorsements on a draft request to the Wikimedia Foundation for grant funds. If you like, please comment at meta:Grants:PEG/Wikimedia New York City/Legal review and templates for model release.

For some time I have been collecting examples in Wikimedia projects in which there is some disagreement about whether an image violates personality rights and would require a model release to host in Wikimedia Commons. See examples in the discussion sections at meta:Grants_talk:PEG/Wikimedia_New_York_City/Development_of_a_model_release_process_for_photos_and_video.

Thanks. Blue Rasberry (talk) 21:30, 21 December 2015 (UTC)

I would be careful to specify privacy rights in particular, and not be vague with "personality rights". Generally, we have always used the term "personality rights" to be synonymous with "publicity rights" -- that is what the {{Personality rights}} template refers to. However, I see this page is drifting into using it to encompass both (and the en-wiki page does a little, though focuses on publicity rights). Publicity rights are not violated by hosting an image here and do not require a model release. In fact, that type of model release for freely-resuable content would be a very bad idea for most people -- that would be allowing any product company to use that image to promote their product, so the person would lose all control over the context they are used in. I really would not recommend that Commons become a stock image repository of that nature -- we are focused on educational uses, where publicity rights rarely come into play. For images which don't involve people (or are not identifiable), then the simple copyright license is usually enough. For medical images, I assume you are more talking about a release for a specific image for privacy rights, where simply hosting it on Commons can violate such rights without getting the publication OKed. Those would be helpful since those images are generally needed for educational uses -- though again I would try to make sure that such releases do not also encompass publicity rights. Carl Lindberg (talk) 23:26, 21 December 2015 (UTC)
I don't think we get to say we are focused on "educational uses" then insist on images being "totally free". The Pricasso incident highlighted that point rather clearly. Saffron Blaze (talk) 23:17, 23 December 2015 (UTC)
"Free" is a term defined around the copyright -- yes we insist on that as well, but that's a side issue to both model releases and this page. Wikimedia's goal is around "free educational content" -- so yes, the focus is educational uses of material which is "free" per its copyright status. Carl Lindberg (talk) 23:26, 23 December 2015 (UTC)
What you espouse and the reality are quite different. My experience is 95% of the re-uses of my images were for non-educational use, in particular commercial use, and never once was I asked about consent despite identifiable people being in a few of those images. We, as in Commons, contribute to this directly with the constant beating of the "free" drum because when people read free they think of it in the absolute and no consideration is given to consent, trademark, etc. CC furthers this by putting clauses in their licenses that extend beyond copyright into the issue of consent. Saffron Blaze (talk) 19:53, 26 December 2015 (UTC)
We can't stop people from being ignorant enough to not know the difference between free as in freedom and free as in beer. We should nonetheless not deny that the difference exists. I fully support Carl Lindberg here and would support the proposal once his concerns have been adequately addressed - including focusing more on educational content and privacy rights. Any changes being made to address them, Blue?--Elvey (talk) 00:14, 19 February 2016 (UTC)
Elvey I think the problem here is semantics and not intent. From my perspective, the original proposal always included what Carl was saying, except that I do believe we should go further and allow a way to do traditional model releases beyond that. Full model releases are the norm in industry, and half-releases of the kind that Carl is describing and that I also want are a novelty with little precedent. The wording problem is that these terms are not defined - "personality rights release", "model release", "editorial release", "privacy release". Some of those might be the same, or they might be degrees of releases with some being a mere acknowledgement that a photo is taken and others being some kind of consent to do anything. So far as I can tell, major photography agencies do not keep multiple kinds of releases, but rather typically ask that the models only agree to one kind. In any case - yes, one kind of release is educational (as for patient photos) and another is for privacy acknowledgement (as in intimate settings where someone may not understand why they are being photographed). Perhaps other kinds of consent ought to be developed. I am not sure what lawyers already do or what industry already does - this is why I want expert opinions. Thoughts? Blue Rasberry (talk) 00:27, 19 February 2016 (UTC)
I disagree. It's clear to me that the proposal does NOT include what Carl was saying. I'd support a proposal along these lines led by Carl, because of his expertise in this area. Supporting only a full model release of the kind that Carl indicates would be a bad idea for most people seems deaf to his and my concerns, IMO. Semantics matter. Fuller response here: https://meta.wikimedia.org/wiki/Grants_talk:PEG/Wikimedia_New_York_City/Development_of_a_model_release_process_for_photos_and_video#Concerns.3B_also_opposed_for_now.--Elvey (talk) 17:52, 2 March 2016 (UTC)

I think this is a useful proposal. Provided that community agreement can be obtained, particularly here on Commons, this should provide a good opportunity to rationalise some of the difficult issues of consent that have dogged Wikimedia projects for the last 10 years. It won't solve everything - medical images in particular may perhaps be out of scope - but providing a generally-agreed consent form could help cut through some of the ad hoc arguments and admin decisions that remain too often the norm. As a secondary issue, it would be good to make this an a integral part of the community discussions around improving the Commons:Photographs of identifiable people guideline which has needed significant work for some time. I have started on a re-write at Commons:Photographs of identifiable people/Draft 2015-16, but haven't got very far with it yet. Discussions with the community will be key, as an externally-imposed legal document is unlikely to gain much traction. But Bluerasberry has been making very significant efforts to involve others and to answer questions, and I'm sure he is well aware of that. I've said to Bluerasberry that if I can be of help (via Commons/OTRS/WMUK or legal), I'd be pleased to become involved. MichaelMaggs (talk) 15:26, 5 February 2016 (UTC)

What do you think of the suggestions/concerns here?--Elvey (talk) 17:52, 2 March 2016 (UTC)

Is "Category:Hipsters" defamatory?[edit]

Raised this at the village pump without much response. Is it defamatory to include photos of identifiable people in Category:Hipsters, given that the term "hipster" is largely pejorative and none of the people appear to be self-identifying as such? --McGeddon (talk) 09:32, 28 February 2016 (UTC)

Can we assume?[edit]

If a professional photo of a model in a private place is released on the net and there's no documented consent available, can we assume that the subject (the model) is consent with his/her photo on the net and hence upload the photo here? --Mhhossein talk 19:16, 26 December 2016 (UTC)

Question[edit]

If a famous person dies (such as Prince and Tom Petty), are we required to remove any "personality rights" templates on every image of that person? 72.90.141.137 00:24, 23 October 2017 (UTC)

No, in some jurisdictions such rights can last a while after death (sometimes long after)[1]. (In Tom Petty's case, California's lasts a very long time.) Still a valid tag -- just not universally applicable anymore. It's up to re-users to figure out if their use is a problem or not (true if the tag is there or not). Carl Lindberg (talk) 00:58, 23 October 2017 (UTC)
@Clindberg: So that tag is meaningless?   — Jeff G. ツ 07:30, 23 October 2017 (UTC)
Not sure what you mean. We should remove it if it doesn't apply at all, but all warning tags are a courtesy reminder -- I'm sure there are a boatload of images which could have the tag but do not. Commons:General disclaimer always applies. Carl Lindberg (talk) 07:48, 23 October 2017 (UTC)

commercial use[edit]

@Bluerasberry: I think this edit of yours is mistaken. The prior wording may have been too telegraphic, but I think the meaning was clear; you've changed it to say something else entirely. The prior wording '…the term "publishing" should not be construed to include commercial use…" (with a link) effectively referred people to an article en:personality rights to explain why commercial use is problematic. The new wording simply doesn't make sense: '…the term "publishing" should not be construed to include personality rights…' - Jmabel ! talk 19:47, 1 August 2018 (UTC)

@RP88, Jmabel: There is a link labeled as "commercial use" which goes to "personality rights". One reason to quit doing this is because it is a surprising link - these are not synonyms and I think no one should expect to click a link about commercial use and arrive at documentation for personality rights.
Another problem with this and elsewhere in the article is confusion that consideration of personality rights requires distinguishing commercial use from noncommercial use. It is inaccurate to assert this distinction, such as repeatedly in the "The right of publicity" section. Nonprofit use can also violate personality rights including use in Wikimedia projects. This particular documentation is supposed to be guidance about Wikimedia project nonprofit usage, and not give legal advice for off-Wikimedia commercial use anyway.
Can either of you explain why you wish to preserve the piped link to "personality rights" with the "commercial use" label? Blue Rasberry (talk) 02:20, 2 August 2018 (UTC)
The right of publicity is a person's right to commercialize or profit from his or her likeness, i.e. their likeness can't be commercially exploited without permission or contractual compensation. The phrase "However, the term 'publishing' should not be construed to include commercial use" is a statement clarifying that just because it happens that in a particular case that a subject's consent is not needed for publishing a photograph of them it is incorrect to assume that this also means you can don't need their consent to exploit the photograph commercially. For the right of publicity is it correct to separately consider commercial uses. This isn't about for-profit or non-profit institutions, as non-profits can can practice commerce. It is entirely possible for a non-profit to violate someone's right of publicity. Just because you might have the right to publish the photo of someone in a public place, does't necessarily mean you can exploit it commercially, e.g. sell the photo to Getty Images for use in advertisements. I'm not sure why you brought up the example of the photo of Avril Nolan. That is an example of commercial use. Because Nolan never signed a release authorizing the photographer to sell her likeness to a third party, the photographer was not authorized to profit from her likeness by selling a photo of it to Getty, and Getty in turn was not authorized to profit from it by licensing it to the NYS Division of Human Rights. I also disagree with your statement about this page not being about off-Wikimedia usage, as it says in the "this page in a nutshell" summary at the top: "Country-specific laws may affect what content we can host, how it may be published, and whether consent is required to re-use it." Re-use by others, including non-Wikimedia re-users, for both commercial and non-commercial uses, is a core Commons goal. Informing re-users how and why consent may be required to re-use a photo of an identifiable person on Commons is absolutely an issue covered by this page. —RP88 (talk) 03:40, 2 August 2018 (UTC)
@RP88: I am having difficulty understanding. Can you comment on use in Wikipedia, like for example the use of this guide's example photograph in en:Anna Unterberger? Do you call this commercial use? Blue Rasberry (talk) 13:03, 2 August 2018 (UTC)
While Commons insists that every media file have a copyright license that permits commercial use, Commons does not make an effort to insure its content is free from non-copyright restrictions. We should have a copyright license from every photographer that covers commercial use, but in the case of images containing identifiable people re-users may need additional permission from the subjects of these images. While Commons has made some effort to inform potential re-users of this issue (via the {{Personality rights}} and {{Consent}} templates), Commons is not a modeling agency and we don’t have any formal process for model releases (it is possible some Commons photographers may mention in their uploads that they have model releases from their subjects). Even with the {{Consent}} template, Commons doesn't have a mechanism to indicate consent sufficient for anything more than hosting on Commons and editorial use on commercial or free publications. If potential re-users, including WMF projects, want to use Commons images containing identifiable people for promotional or advertising work, then they will likely need permission from the subject of the image (either by directly contacting the subject or indirectly via a model release collected by the photographer). The use of a Commons image containing an identifiable person in a Wikipedia article is likely to fall under "editorial use", not “commercial use”, but this isn’t to say that all uses to which a WMF project might put an image from Commons are going to be permissible (additional permission may be necessary for use in something like a fundraising banner). —RP88 (talk) 15:28, 2 August 2018 (UTC)
@RP88: I follow all that. Please look at en:Anna Unterberger. Do you call the use of the photograph in this Wikipedia article commercial use? I am asking about only this instance of use, even while I recognize that other uses in other contexts are possible. Blue Rasberry (talk) 16:04, 2 August 2018 (UTC)
As far as I can think, nothing in Wikipedia should constitute commercial use. - Jmabel ! talk 16:34, 2 August 2018 (UTC)
It sounds like you are asking me to give you specific legal advice, which I can't and shouldn't give you. You might consider suggesting this as a topic for a future Wikilegal article at m:Wikilegal. —RP88 (talk) 16:52, 2 August 2018 (UTC)
@RP88: Got it - no legal advice from you.
Check out en:Talk:Urinary_incontinence#Image for a similar in-wiki case. We have a picture of a person who is used as an illustration of what people with urinary problems look like, just as the model was used to illustrate the concept of HIV.
When we use models to illustrate medical conditions in Wikipedia articles as was done for incontinence, would you call that a commercial use?
Where I am going with this is to make an argument that the intro to this guide should not pipe "commercial use" to "personality rights", because our major concern in Wikimedia projects is to not violate personality rights with the non-commercial in-wiki use of the image.
Briefly - I expect that you agree that the use of the model for urinary incontinence is both a violation of personality rights, and also an instance of non-commercial use, right? Blue Rasberry (talk) 17:24, 2 August 2018 (UTC)
Nolan did not sue the NYS Division of Human Rights for violating her right of publicity, she sued them for defamation and violation of her civil rights. With regards to using File:USMC-110212-M-2664B-103.jpg in a Wikipedia article about urinary incontinence, I don't think the issue turns on the question of whether or not the use on Wikipedia is commercial or noncommercial. Given that the subject of the photo appears in a military PR photo looking at the camera and smiling I think assuming that they have given their consent to have their photograph taken and published is reasonable. In this case I think the issue is whether or not the use in the article is "editorial use" and whether or not the use is defamatory. For example, if the subject of the photo is a public proponent of public spending on urinary incontinence research there might be a legitimate editorial use for their photo in an article about urinary incontinence. Conversely, if the subject of the photo is not themselves known to have urinary incontinence and identifying them as so might harm their reputation, the use of their photo simply to illustrate an article on urinary incontinence might be considered defamation in some jurisdictions. For this particular photo I would not be surprised to find a legitimate editorial use for it in an article about the Thamrapakorn Home for the Aged or Exercise Cobra Gold 2011; I can't immediately see an editorial use for it in an article about urinary incontinence. —RP88 (talk) 18:36, 2 August 2018 (UTC)
Actually, now that I think about it, I wonder if the source of your confusion is the name and use of the {{Personality rights}} template, which is used as a shorthand on Commons for the local laws and moral issues that may impose additional requirements for subject consent above and beyond copyright restrictions. Technically, personality rights is a property right which only covers two of these issues, the right of publicity and the right of privacy. Commercial use can violate the right of publicity, noncommercial use cannot. Hopefully Commons isn't currently hosting photos that violate the right of privacy (and those that are should be nominated for deletion). Thus it is not possible for noncommercial use of a legitimately hosted Commons photo to infringe personality rights. Note that noncommercial use doesn’t mean use by a noncommercial entity, it means use that doesn’t infringe the subject’s commercial property rights. This is why "commercial use" links to personality rights. Other considerations for which subject consent is an issue like defamation, contractual restrictions, rules of professional conduct, and related legal and moral issues should also be be considered when using photographs of identifiable people, but strictly speaking these are not personality rights. In the U.S. stock photography of identifiable people that are otherwise legal for publishing, but lack a model release, are typically identified as "editorial use only”. This is a shorthand that indicates that these photos shouldn’t be used in any kind of advertising or promotional material and that care should be taken to use them where one has a good faith belief that it is legitimately being used for identification, commentary, and other editorial uses that don’t require consent. —RP88 (talk) 21:20, 2 August 2018 (UTC)
The incontinence case seems a clear violation of personality rights (though on an entirely different basis than commercial use). What does that have to do with the photo in en:Anna Unterberger? - Jmabel ! talk 21:38, 2 August 2018 (UTC)
In case I wasn't clear in my first paragraph above, I agree, I don't see any evidence that we have adequate consent to use File:USMC-110212-M-2664B-103.jpg in urinary incontinence. I am not aware of any connection that article and the Anna Unterberger article, so I don't know why Bluerasberry mentioned them both. —RP88 (talk) 21:50, 2 August 2018 (UTC)
There may be some question as to whether we should be less telegraphic and say '…the term "publishing" should not be construed to include commercial use (see en:personality rights…" (or possibly leave out the link entirely, though that's a poor choice) instead of just linking the phrase 'commercial use' to that article, but the key thing here is that we are saying it should not be construed to include commercial use, not that it should not be construed to include personality rights. - Jmabel ! talk 04:34, 2 August 2018 (UTC)
@Bluerasberry: I now see what you are driving at. It's a completely separate issue than the one addressed in that sentence. Yes, we might want to take up that a photo may, in its own right, be perfectly legitimate to publish, but using it in certain contexts might amount to defamation. That's usually not a Commons issue, outside of poorly chosen (or willfully ill-chosen) titles, descriptions, or categories, but to the extent that this page is advice on reuse, I could see adding a sentence or paragraph on that topic. But it is basically a separate on than commercial use. Using a picture of me to advertise a computer would not be defamatory, but it would infringe my right of publicity; using a picture of me to illustrate an encyclopedia article on schizophrenia would not infringe my right of publicity, but it would presumably be considered defamatory. Using that same picture in a Trump campaign ad, implying I support him, would arguably be both. - Jmabel ! talk 21:49, 2 August 2018 (UTC)

Potential for "reactionary" consequences, or expectation of a specific 'confidence' as grounds for needing photo consent?[edit]

The following examples were something I wanted to add in some form to the examples, ( assuming someone wants to translate), The wording is not finalised, and I'd like a second view and a LOT of opinions.

  • Media showing political, religious or cultural expressions where the form of such expression may provoke a critical reaction. (potential for reactionary consequences against the photo subject or participants)
The rationale behind this would be where an image could result in negative consequences for the participants if there were identified by authority figures in their area, their boss or family for example for expressing certain views. Commons is not censored, and in doing so should be objectively supportive of all viewpoints, but it should in doing so also reasonably consider that not everyone necessarily would want the world to know they support particular viewpoints if in making those views public, they faced damaging consequences.
  • Images of non-mainstream but consensual expressions of sexuality, which may provoke a critical reaction. (Potential for reactionary consequences against the photo subject or participants.)
The rationale for this, is that despite considerable effort by activists and educators, things like BDSM, pony-play, and sissy feminisation to give a few examples, remain mis-understood. Thusly whilst someone may consensually engage in these practices, there may be an unexpressed expectation that their engagement is not shared more widely because if their involvement was known, it could have negative consequences for them. ( Here in the UK, people have lost employment over having been identified as involved in BDSM "play".). Having 'participant consent' here would indicate that the participants are aware of the issues, and have accepted the privacy risks involved.
  • Medical imagery of identifiable subjects, or which links certain conditions with certain individuals or groups (Expectation of patient confidentiality)
Note: Other than images for which such confidentiality can be said to have been waived by the patient themselves, where the image identifies them, but they are uploading the image themselves.
The rationale for this, should be obvious, given that in most jurisdictions, "medical confidence" is a legally protected patient right.

ShakespeareFan00 (talk) 09:59, 14 March 2019 (UTC)

  • On your first point: wouldn't all political, religious or cultural expression potentially provoke a hostile reaction? We can hardly say that we cannot ever depict identifiable humans in politically, religiously or culturally identifiable contexts. - Jmabel ! talk 15:04, 14 March 2019 (UTC)
Are you saying the first example is too broad? I can agree with that, and would like to define it more narrowly. ShakespeareFan00 (talk) 15:19, 14 March 2019 (UTC)
  • What do you intend these as examples of? Where would this fit into the project page?
  • My concern is mainly with the first two of the three matters you raise here. As far as I know, medical imagery, since it is almost never taken in a public place, pretty much always already requires subject consent. - Jmabel ! talk 20:01, 14 March 2019 (UTC)
These would be entries in the section Commons:Photographs_of_identifiable_people#Examples ShakespeareFan00 (talk) 22:01, 14 March 2019 (UTC)

USA and preemption of non-copyright claims[edit]

Although based on the 1976 copyright law, this case Bradley WELLS v. CHATTANOOGA BAKERY (448 S.W.3d 381 March 25, 2014; Court of Appeals of Tennessee. Middle Section, at Nashville) is very interesting in that it shows the process to determine whether the right to publicity (and others) can be used by the subject of a photo to prevent its commercial usage, or whether only copyright claims could be brought.[2]

CBI and DPSU contend that all of Mr. Wells’s causes of action, despite being pled as state statutory or common law claims, involve the rights and subject matter of the Copyright Act. Thus, we must determine whether the Copyright Act preempts these claims. [...] Mr. Wells concedes that his “image and likeness were fixed in a tangible medium of expression”—the decades-old, copyrightable 7 photograph—so we must examine the remaining two requirements which, if satisfied, necessitate the preemption of his claims in favor of the Copyright Act’s rights and remedies. These requirements are that: (1) the work must come within the scope of the “subject matter of copyright” as set forth in Section 102 and 103 of the Copyright Act; and (2) the rights granted under state law must be equivalent to any of the exclusive rights within the scope of federal copyright protection. [...] We find that Mr. Wells’s claims under the Tennessee Personal Rights Protection Act and the Tennessee Consumer Protection Act, and his claims for unjust enrichment, accounting, and conversion, as explained in more detail below, do not involve the use or appropriation of his personal traits or identity, but rather, CBI and DPSU’s use of a copyrightable photograph that includes, among other things, an unidentifiable young boy who happens to be Mr. Wells. This falls within the subject matter of copyright. Accordingly, each state law claim that Mr. Wells asserts satisfies the subject matter requirement for preemption. [...] Because Mr. Wells’s TPRPA claim meets the subject matter and equivalency requirements, we conclude that it is preempted by the Copyright Act.

Nemo 22:09, 6 April 2019 (UTC)

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