[cc-licenses] Distribution of picture on the internet in US-law?

Karl Ebener myonlyb at vollbio.de
Fri Oct 5 07:06:06 EDT 2007


Hi Dana,

as far as I understand it after having read the wikipedia-article, the 
answer to my question would be:
1. Commercial use of the picture would violate to right to publicity 
which is part or parallel to the right to privacy.
2. Non-commercial use might violate the right to privacy, but the answer 
is not definite.

Would this summary be right?

Thanks a lot!
 Karl

Dana Powers schrieb:
> In the U.S., this question is governed by state privacy law.  The most
> active cases deal with what is known as the "Right of Publicity,"
> dealing with commercial exploitation of a person's likeness.  The
> Wikipedia article is pretty informative:
> http://en.wikipedia.org/wiki/Right_of_publicity
>
> State privacy law tends to be driven by case law, and I have not done
> much research into the specifics.  In "new" cases like these it may
> indeed have to be resolved through litigation in the courts before we
> have a definite answer.
>
> All the best,
>
> Dana Powers
>
> -this is not http://en.wikipedia.org/wiki/Legal_advice, yo
>
> On 10/4/07, paola.dimaio at gmail.com <paola.dimaio at gmail.com> wrote:
>   
>> Andres
>> good points
>>
>> I rhink when you load youw own images, you are OK
>> Is when loading other people's pictures that you might be infringing
>> their privacy
>> unless consent has been expressed (explicitly or impicitly perhaps)
>> especially if the photo ends up being 'used'
>>
>> also I think anyone has the right to request the withdrawal if they so wish
>>
>> Paola Di Maio
>>
>> On 10/4/07, Andres Guadamuz <a.guadamuz at ed.ac.uk> wrote:
>>     
>>> Dear Karl,
>>>
>>> Interesting question. Besides moral rights, I would like to mention the
>>> European Court of Jusice decision re Bodil Lindqvist (ECJ Case C-.
>>> 101/01). Although Data Protection should not be equated with privacy,
>>> the ECJ ruled that posting personal data on a website is "processing" in
>>> the sense of the DP directive (95/46/EC), and therefore subject to
>>> registration, notification and the many other DP principles. Pictures
>>> are personal data (and in some circumstances, may even be sensible
>>> personal data), so I would agree that under some circumstances, courts
>>> may answer "yes" to the question of violation of rights.
>>>
>>> Nevertheless, I think that way madness lies. If every European image in
>>> Flickr is in violation of data protection principles, we would be
>>> presented with an unenforceable situation. DP commissioners and
>>> ombudsmen around Europe are already working overtime, and I cannot see
>>> them going into Flickr issuing fines against users that have failed to
>>> register as data controllers.
>>>
>>> Regards,
>>>
>>> Andres
>>>
>>>
>>> Karl Ebener wrote:
>>>       
>>>> Hi,
>>>>
>>>> most people should have noticed the discussion about the Virgin Mobile
>>>> case. I have a question that arose when I read the comments from
>>>> Lawrence Lessig and the CC Corporation on this topic:
>>>>
>>>> In US law, how is the distribution of pictures of someone over the
>>>> internet to be treated?
>>>>
>>>> Lessig writes
>>>> (http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html):
>>>> "I doubt that any court would find the photographer in this case had
>>>> violated any right of privacy merely by posting a photograph like this
>>>> on Flickr."
>>>>
>>>> and CC writes (http://creativecommons.org/weblog/entry/7680):
>>>> "So did the photographer violate Ms. Chang's rights?
>>>> We certainly don't think so. We don't believe any court should find that
>>>> Justin Wong had violated Ms. Chang's rights simply by posting this photo
>>>> of her in Flickr, however it was licensed. Cool (as in using Flickr, and
>>>> even better, using Flickr with CC licenses) can't be a crime."
>>>>
>>>> Is that so in US law (after having read above, I assume so)? And if so:
>>>> why? Is there any written law/decision(s) on this topic? Or any source
>>>> where I could look this up?
>>>>
>>>> I ask, because in Germany the right to a picture of you is part of the
>>>> general moral rights and any distribution is subject to your consent...
>>>> Thus, in Germany, the question "So did the photographer violate Ms.
>>>> Chang's rights?" would most like be answered with "Yes"...
>>>>
>>>> Thank you very much
>>>> Karl
>>>> _______________________________________________
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>>>>         
>>> --
>>> Andres Guadamuz
>>> AHRC Research Centre for Studies in
>>> Intellectual Property and Technology Law
>>> Old College, South Bridge
>>> Edinburgh EH8 9YL
>>>
>>> Tel: 44 (0)131 6509699
>>> Fax: 44 (0)131 6506317
>>> a.guadamuz at ed.ac.uk
>>> http://technollama.blogspot.com/
>>> _______________________________________________
>>> cc-licenses mailing list
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>>> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>>>
>>>       
>> --
>> Paola Di Maio
>> School of IT
>> www.mfu.ac.th
>> *********************************************
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