[cc-community] CC-like video release form
Fred Benenson
fred.benenson at gmail.com
Thu Jan 17 01:20:47 EST 2008
On Jan 17, 2008 4:59 AM, Terry Hancock <hancock at anansispaceworks.com> wrote:
> Gavin Baker wrote:
> > personality rights). But with open licensing, there's NO accountability
> > whatever, in fact there's an open invitation to all kinds of crazies to
> > put words in my mouth (hey, derivatives are allowed!) and make it seem
> > like I'm saying them.
>
> They can if it is obvious that you didn't really say them.
>
> They CANNOT if they are actually misrepresenting you. That would
> libelous, and the release would not permit that.
>
> The notional "Neo-Nazi Site" can use images of you in their own works,
Yes, and I believe that it would be a film maker / photographer's
responsibility to make this possibility clear to their subjects. This would
be distinctly different from the responsibility entailed in explaining
traditional model releases -- usually they only pertain to the particular
corporation or artist using the person's image and do imply a certain level
of trust. I know this happens frequently with interview subjects who are
hesitant to speak or appear on camera -- they sign a model release, but only
in the context of trusting their interviewer / photographer. Sure, its not
baked into a technical license or legal agreement (the interviewer could use
their image for blatant advertising) but my feeling is that there tends to
be a high level of trust with the most established journalists and
photographers out there.
This is something that could not be replicated in a copy-left-esque release
as it would be potentially preserving rights for bad actors downstream.
Anyway, I think the responsibility of indicating to a subject that their
words may get re-used by Neo Nazis (or otherwise) is an immensely
undesirable and counterproductive responsibility to take on when making a
work with other people as your subjects.
> but there are still some limits on what they can do. I think that the
> things you are most afraid of go beyond "publicity rights".
>
> Or at least this is how I think it would work.
>
> If someone misrepresents your speech, they are making a factual claim
> about you that is false and damaging to your reputation. That's the
> basis for a libel claim, as I understand it.
While this may be technically legally true, my understanding is that libel
claims are more frequently based on people saying actual inaccuracies about
people rather than people inaccurately saying other people said things. But
IANAL and have virtually no experience here.
>
> Publicity rights, as I understand them, primarily exist to protect a
> financial interest in using your image and are not mainly there to
> protect your reputation.
There are a number of terms going around here, and I think we should
clarify. There is something called "Celebrity Rights" which protect an image
as an asset. Then there are somethings called "Publicity Rights" and then
"Privacy Rights" which deal with the common law understanding of having
ownership over one's identity and the ability to exclude others from using
it commercially.
While libel prevents ostensibly prevents a corporation from saying that I
love to use Bounty paper towels, publicity rights prevent that corporation
from featuring me in an advertisement for Bounty paper towels.
> Free speech rights generally allow a lot of
> things you might not like to be said, but they don't allow factual
> misrepresentations of you which might damage your reputation.
>
> Think of how the notional bad-guy site can use your *name*, for
> instance: they can, of course, say "Joe Schmoe is a schmuck!", but they
> can't say "Joe Schmoe eats babies!" or "Joe Schmoe says, 'Babies are
> yummy!'" unless 1) this is factually true (and they can prove it), 2)
> they can get away with claiming it is obviously not intended to be taken
> seriously (which might happen in a case as hyperbolic as this example,
> but probably not in real cases you'd worry about). If you just
> substitute "picture" for "name", I imagine the same situation would
> apply if a free release were used.
This is not the case, as far as I understand it -- and this precisely why
the case against Virgin from the Texas plaintiff has merit. Not only did
they use her image disparagingly, but they used it in a commercial context
that might indicate she endorsed the product (despite the tone of the
advertisement suggesting otherwise.)
Again, I am not a lawyer, so I would love to have a real one chime in here.
>
> It's just like free software, really.
No, I don't think it is -- where software is largely fungible and defined by
utility, people's identities and images are not, or at least they aren't
used to thinking of them as such.
Whether or not we should reform that intuition is another question, though
something I feel pretty strongly against.
F
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