Development of Creative Commons licenses

[Javier Candeira <javier AT candeira.com>]

jonathon wrote:
> Several places in New South Wales, Australia have tried outright
> banning of public photography.  Spain used to send people to gaol for

The way you put it, trying to obtain a release would amount to confessing
having broken that law banning photography of public documents, so I would
advise not to attempt one. In any case, that's interesting. Reference? Is it
likely that they might succeed? I am interested more than academically,
since I now live in Australia.

> photographing certain buildings, or other quasi-public places.

Probably more than 30 years ago, in Franco's time, but in any case that
didn't have anything to do with intellectual property, copyright or licensing.

>> The rule of thumb should be to only seek the release when the law 
>> explicitly demands it.
> 
> It is always easier and cheaper to obtain permission, than defend a lawsuit.

As I say, obtain permission by all means, but only if the law in your
jurisdiction demands it. Not go asking for unneeded permissions in places
where the law does not force you to get it.

>> Our job of stopping copyright creep starts at home.
> 
> Most copyright creep occurs when an organization claims royalties for
> copyrights that they do not own.  Or, more rarely, a legitimate
> copyright owner denies being the actual copyright owner.

I meant the creep of the scope of copyright. Requiring a release to publish
a photo that includes a recognisable building would be an example of such 
creep.

>> As to the photo of a public personality such as Tiger Woods for publication
>> in an encyclopedia (which can be said to be about current events), I would
> 
> If Tiger Woods is either a public figure, or a limited purpose public
> figure, then you probably won't need a model release for a photograph
> that is used non-commercially.   You will need one for commercial
> usage.

Hmm, I would like to know what jurisdiction you are talking about. You seem
to assume you and I share the same set of laws.

> If Tiger Woods is a private figure --- which a good lawyer will be
> able to successfully argue --- then a model release is needed for both
> commercial and non-commercial usage.

Depends what he was doing at the time. Again, jurisdiction jurisdiction, but
I really doubt there are precedents where Tiger Woods would be considered a
private figure in the context of a photo him playing golf.

>> I have published some photographs in newspapers
> 
> As a general rule of thumb, newspaper are exempt from most model
> release requirements.

What about encyclopedias? Also, where does your "general rule of thumb" apply?

>> of public artworks.
> 
> Seattle Symphony made that mistake.  Fortunately for them, all they
> had to pay was statutory damages.Had the artist been more copyright
> savvy, Seattle Symphony would have been out a lot more than the
> estimated US$50K they incurred for legal fees.

Can you give a reference? What did exactly Seattle Symphony do? Can you show
me the relevant statute in US or Washington law?

> Local laws vary considerably.   Not just from country to country, but
> also from province to province within one country.

Depends on the country. In Spain copyright law is country-wide, despite much
decentralisation.

>> that the publishers do, as they will be needing to do it in bulk (or
> not at all).
> 
> US publishers usually require that the author obtain all of the
> clearances that are required for material that the author uses.  They
> then verify that the granted permissions were intended.  (Though in

If I were the photographer, that would be a matter of whether they were
paying for the extra work of compliance and due diligence, but I am not.

As I say, I don't see how Toshio Iway or Fumito Ueda could sue me for me
publishing commercially the photos I posted earlier, even under US
statute... but maybe you can provide me with citations of the relevant US
statute.

Just for the sake of the argument, let's assume a book published in the US
called "Encyclopedia of Electronic Art and Videogames", where those photos
by me had been taken in the US instead of in Spain, and they were used to
illustrate the corresponding articles for Ueda and Iwai. The photos are not
used in a slanderous manner or to imply their endorsement of the book. They
are just illustrations for boring biographical articles with a neutral POV
and correct data.

Also let's assume that Ueda and Iwai are USAmerican, and that nobody signed
or asked for any type release; I just took their pics during a conference,
and the publisher paid me for the license to print them in their encyclopedia.

What have we (me or the publisher) done wrong, if at all? What's our risk?

Javier