[cc-community] Contradictory meanings of "non-commercial"?

Fred Benenson fred.benenson at gmail.com
Thu Feb 7 11:00:51 EST 2008


On Feb 7, 2008 9:43 AM, Terry Hancock <hancock at anansispaceworks.com> wrote:

> Fred Beneson wrote:
> > See the 76 ball case or the virgin case (where a NC license would have
> > saved everyone a lot of trouble) or the Dutch tabloid case involving
> > Adam Curry.
>
> IMHO, those last two would be abuses of NC licensing (I don't know what
> the "76 ball case" is).


See : http://lessig.org/blog/2006/09/autoweek_on_come_on.html

and

http://lessig.org/blog/2006/09/update_on_autoweek.html



> The problem wasn't "commercial use", it was use
> of someone's likeness without permission.


You are allowed to use someone's likeness without their permission so long
as the use is not commercial. See the Philip-Lorca diCorcia lawsuit, where
he was using images of people on the street in contemporary art photographs.
Despite the serious objections of his subjects to the use of their likeness,
he was allowed to make and sell his art :
http://www.nyc24.org/2006/issue3/story02/

It is my understanding that model releases typically reserve the commercial
rights to the use of a particular likeness of a person. While NC probably
doesn't cover (I am not a lawyer and have much less understanding of release
law) all of the cases where a release is needed, it seems to cover some of
the more substantial cases (using someone's license in a Virgin
advertisement) while reserving the right to use a person's likeness in art
(a contemporary photograph.)

The CC licenses expressly do
> not confer rights to likenesses, and so the users should've known they
> didn't have those kinds of rights.


This is true, but as I said above, the NC license seems to prevent uses that
model releases are required for.


>
> What would've "saved everyone a lot of trouble" would be standardized
> publicity rights forms and (more visible) standard disclaimers for works
> which have no such permissions (the Flickr CC search engine really ought
> to have a tick box for "publicity rights granted (or unnecessary)" along
> with "commercial use" and "copying").


I agree -- standard publicity rights forms would be a good idea, though I'm
still not convinced a copy-left style publicity rights release form is a
good idea.


Best,

F


>
> Cheers,
> Terry
>
> --
> Terry Hancock (hancock at AnansiSpaceworks.com)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
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