Development of Creative Commons licenses

[David Maeztu <davidmaeztu AT gmail.com>]

Javier Candeira escribió:
> jonathon wrote:
>> As a general rule of thumb, it is advisable to obtain a model release
>> for: 
>> * Every identifiable individual in a photograph; 
>> * Every identifiable work of art in a photograph;
>> * Every identifiable building in a photograph;
> 
> As an activist (IANAL) I find this "get releases for everything" policy
> dangerous in the long term, and my rule of thumb is not to ask for such
> releases, except when explicitly required. What follow is my rationale.

I´m not sure that this is the best advice, considering spanish law, and
other laws that protect person rights as "own image rigths" (derechos de
la propia imagen)

> 
> First, the law: I don't know about your jurisdiction, but in Spain any work
> of art or building in "public thoroughfares" ("vías públicas") is subject to
> very little protection:
> 
>> 2. Las obras situadas permanentemente en parques, calles, plazas u otras
>> vías públicas pueden ser reproducidas, distribuidas y comunicadas
>> libremente por medio de pinturas, dibujos, fotografías y procedimientos
>> audiovisuales. [1]
> 
> Quick translation, apologies if some terms of art are wrong:
> "2. Works permanently placed in parks, streets, squares or other public
> thoroughfares can be freely reproduced, distributed and broadcast via
> paintings, drawings, photographs and audio-visual means."

That´s right.
> 
> I am curious to know what other jurisdictions' laws or precedents have to
> say about this issue, and whether there is any part of the world where
> either law or norm says street photographers can't publish their work
> without the permission of the authors/rightsholders of buildings and public
> artworks.
> 
> Unless your jurisdiction specifically requieres such a release, I think
> that it is healthy NOT to seek permission for publishing photos of public
> art, public buildings, etcetera. The rule of thumb should be only seek the
> release when the law explicitly demands it.

In Spain that´s not necessary so your right.

> 
> As Pamela Samuelson states in her manifesto (I don't think she would call it
> that, but it sounds like one to me) for overhauling copyright in the USA[2],
> copyright law grows by codifying the norms and trade practices of copyright
> incumbents. If these incumbents get used to have people ask for copyright
> releases that are not required by law, they will eventually ask the
> lawmakers for the law to include those rights, in order to "protect their
> Intellectual Property".
> 
> Our job of stopping copyright creep starts at home.

I agree.
> 
> 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
> be very surprised if releases were necessary. Stefanie doesn't specify it,
> but I am assuming that the photo will be illustrating the "golf" or "tiger
> woods" or even "child prodigy" articles, and not be used in a slanderous
> way, or implying Tiger's endorsement of the encyclopedia or its publisher.

My opinion, always speaking from a spanish point of view, maybe in other
jurisdictions this could be diferent, but in most countries not, is not
the same and I will try to explain.

Everbody have right to privacy, wich spanish Supreme Court (Tribunal
Constitucional) and that right includes many other rights like "derecho
a la propia imagen" (rigth to own image)

Nobody can take a photo of a person, even in public places and use it
without permision of that person. This rule has can be overpassed mainly
if the photo is taken because of a public event (a marathon start line
for example, etc.), the scope of the photo is not that person (shooting
a building a person cross or is near) or this person is a "public
person" and the image is for press use. I mean you can take and use the
image if that person was "accidentally" there or is justified for free
press right (in spanish libertad de prensa)

In the case we are talking, the use of Woods image for ilustrating a
book could be considered an image right infringement, but more info
would be necessary to exactly determine it, mainly for what article it
will be used. It´s not the same an article about 2002 US Open winner
than an article about Tiger Woods, first case you won´t have to ask for
permission, second case yes.

> 
> In those circumstances, at least in Spain, I would consider a release
> unnecessary. I have published some photographs in newspapers (I worked as a
> journalist), and a couple of them have been used in Wikipedia [3, 4],
> without any release being signed by any subject: I didn't ask them for it, I
> don't think the wikipedia librarians did either.

You published for newspapers because of the exceptions I told, but I
think this is not the same for the Tiger Woods use Stefanie told. About
your examples in wikimedia that photos were made in an event and
covering that event, but I thing the use out of that context would be risky.

It´s sad, but...

> 
> I certainly don't feel I am at risk of being sued, and I plan to keep not
> asking for releases for this kind of publication of photos of public
> figures, and to never ask for releases for photos of buildings or of public
> artworks.

I agree you´re not in risk for two factors. First that person don´t make
money from his image, Tiger does, and second Wikipedia, as a non profit
encyclopedia can be cosnidered under the umbrella of the free to know
and free press as human rights, but the use of that images for money
could be different.

> 
> Stefanie: I suggest you get the advice of a copyfight-friendly lawyer in
> your circunscription, or better yet, that the publishers do, as they will be
> needing to do it in bulk (or not at all). Should you prefer to ask the list,
> you could at least tell us where you are and where the publisher is!

I think this nothing to see with copyright law but with person rights
(rights to image or "derechos de imagen"), so ask one of those lawyers ;)


> 
> Javier

This message has been writen considering spanish law, may differ in
other jurisdictions, also the translate of legal terms could not be
properly made so take it at your own risk,   :)
>