Commons talk:Photographs of identifiable people/Archive 3

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Template talk:Personality rights

You may be interested in joining the discussion at Template talk:Personality rights#Template as is is alienating for image use. whym (talk) 14:42, 30 January 2014 (UTC)

Uploaded by the depicted person

Is a personality rights warning appropriate when the depicted person uploaded the picture itself and granted a license, for instance here ?
And a second question: Which one is correct here: the person itself or himself (I'm not a native English speaker) ? -- Juergen 80.132.165.197 10:11, 11 May 2014 (UTC)

See publicity and privacy rights. But it is not well defined in older versions of CC licenses. Further, not all judiciaries allow to waive those rights even if the license says so. Jee 10:20, 11 May 2014 (UTC)
That link says: this is implied but not explicit - for me, this means more than not well defined: it means a clear situation, although not explicit.
So I could decide to remove the seemingly inappropriate personality rights warning (added by somebody else than the uploader). Would you tolerate this ? -- Juergen 80.132.165.197 10:31, 11 May 2014 (UTC)
No. Such rights are only waived by the uploader "to the limited extent necessary for others to exercise the licensed rights", and the CC licensed rights (except CC0) do not extend to such rights per se. See further explanation here. HelenOnline 11:54, 11 May 2014 (UTC)
I think it should be "the person themselves", "itself" is not for people and "himself" only applies to males. HelenOnline 12:08, 11 May 2014 (UTC)
Helen the CC faq is still frustratingly inadequate on this point. The example given here covers only privacy rights, which quite sensibly should be waived if the licensor is voluntarily releasing a portrait of himself for free use. What would be more interesting would be to know if it means one waives one's publicity rights "for purposes of commercial exploitation". I don't know of anyone who would be comfortable about waiving those rights without compensation (i.e. be a paid model). If this really is CC's intention, then I certainly can't recommend CC be used by people for photographs of themselves. BTW, the image under discussion almost certainly isn't an "own work" unless taken with a camera on a tripod with self-timer. More likely, the photographer and copyright holder is a parent. -- Colin (talk) 12:36, 11 May 2014 (UTC)
I do not believe that is CC's intention. CC licenses (except CC0) are copyright licences, and do not licence other rights per se. The example you mention says "you may not assert your right of privacy to have the photo removed from further distribution". HelenOnline 12:43, 11 May 2014 (UTC)
This is not a simple matter related to CC licenses. My commonsense says our arguments on privacy rights will be weak in court, if we consciously apply a free license to self portraits and selfies because it is not a "third party right" in them. Jee 12:49, 11 May 2014 (UTC)
That might be true for privacy rights, but the personality rights we are talking about here are wider than privacy rights, i.e. including publicity rights. This discussion could easily get derailed by focussing on just that aspect. HelenOnline 14:54, 11 May 2014 (UTC)
Sure; I just replied to Colin's concern. I would rather advice people to ask their friend to take a photo and publish with free license than publishing a freely licensed self portrait. It is more safe as you can fully enjoy your privacy rights. It is a serious concern as we are getting so many "selfies" from people nowadays who are ignorant of this matter. Jee 15:16, 11 May 2014 (UTC)
I just wish that the upload process was more user-friendly so we didn't have to manually add PR tags, attribution requirements, etc for each file and that the licence terms were more clearly spelled out on each file. HelenOnline 16:05, 11 May 2014 (UTC)
Helen, I wish the issue with what CC licenses mean (and issues of copyright in general) obeyed common sense and rational scrutiny. I also wish the CC/WMF folk engaged with us on Commons to a useful degree. But they don't. CC's licence is just a legal document. It's primary purpose is to licence copyright material but it could state the licensor has agreed to wear a fez on Tuesdays if it wanted to. I think extending into the non-copyright issue of privacy rights is quite reasonable wrt a photograph of oneself -- it would be quite unreasonable for someone to release an image of themselves under a free licence and then claim their right to privacy was being abused by someone using such a picture. Indeed I suspect it is probably unreasonable to the degree that a court would dismiss any such claim but IANAL. But I can't fathom the mention of publicity rights. It doesn't really obey the "principle of least astonishment". Take a photograph of your friend and post it on Flickr with a CC licence and everyone is ok. Take a photograph of yourself and post it on Flickr with a CC licence and suddenly you are advertising incontinence products, sexual health clinics, UKIP or Apple's new iThing (depending on how unfortunate/good-looking you are). Or should the photograph contain both of you, your friend can sue Apple for thousands in damages but you'll receive nothing. Is that really what the CC licence means? If it doesn't then why even mention that you agree to waive your personality rights. What does "to the limited extent necessary for others to exercise the licensed rights"? Apple using the photograph in an advert would find it "necessary" for you to waive those rights. -- Colin (talk) 17:35, 11 May 2014 (UTC)

So the conclusion is:

  • We are divided over whether the licensor of a portait of themselves implicitly waives his personality rights.
  • The uploader of a licensed self portrait risks losing personality rights when contested in court.
  • The commercial user of a CC-licensed self portrait risks infringing personality rights (if those are not waived apart from the CC license).
  • That's why we need a personality rights warning for images of the licensor themselves.

Am I right ? -- Juergen 80.132.152.27 04:40, 12 May 2014 (UTC)

  • Juergen, I think you have summarised the discussion fairly well although as Jee says the information is already included in the fine print so the PR tag is only a more prominent warning. I think this FAQ wording sums it up: "If you have created a work or wish to use a work that might in some way implicate these [publicity, privacy and personality] rights, you may need to obtain permission from the individuals whose rights may be affected." HelenOnline 08:42, 12 May 2014 (UTC)

Juergen, the only thing that can be implied is {{Consent}} to publish and upload. Everything else, including {{Personality}} is not waived, unless it is made explicit by the subject of the photo. russavia (talk) 09:36, 12 May 2014 (UTC)

russavia, here it is about self portraits. So permission is explicitly given by the subject ("Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below: a. b. c. d."). Jee 09:44, 12 May 2014 (UTC)
I know what is under discussion, and what I wrote stands true. Unless the person specifically allows their image to be used in say advertising, then they still have personality rights in most jurisdictions. There really is nothing more to discuss, unless Juergen is wanting to use the image in advertising, or other such use that requires a release, and then it should be discussed with the individual. It isn't up to us to be able to comment on further. russavia (talk) 09:48, 12 May 2014 (UTC)
Overconfidence and oversimplification of the issues here is not helpful. Unless you are a lawyer, expert in dealing with CC licences, what you wrote is merely your opinion as a layperson, no more no less. There is genuine confusion over the CC FAQ, with the wording of CC4.0 particularly unhelpful:
"Moral rights, such as the right of integrity, are not licensed under this Public License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.".
The Licensor is clearly explicitly waiving certain personality rights, but it is quite unclear when the user might deem it "necessary" for one do to so. I can see no equivalent in CC3.0 so fail to see how CC regard the above as "implied". It would be jolly helpful for CC/WMF, who helped draft this, to explain what on earth they mean. -- Colin (talk) 10:46, 12 May 2014 (UTC)
  • What about fraud? What about people relying on incorrect information? Unless an OTRS ticket is on file, we have no business even pretending that the person who uploaded the image is telling the truth when he says he is the uploader with respect to what we tell downsteam users. On the other hand, anyone who might be uploading a self-portrait, whether they admit it's a self-portrait or not, should be made aware that the mere act of uploading a self-portrait, requesting that someone else upload a portrait of themselves, or giving permission to someone to upload a file of them to the Wikimedia Commons may surrender some or all privacy or publicity rights they may have in certain countries.
Even with an OTRS communication on file, we can't warrant that the information provided to us is accurate. But we can declare that we have taken prudent actions to verify the information provided by the uploader. I am not a lawyer but this should "cover us" in any legal case, at least up to the point that someone gives us information to the contrary using a process that is at least as "credible" as the OTRS process.
If we are serious about protecting privacy and personality rights, here are some suggestions:
  • We make sure anyone who uploads any file is clearly asked "is this a picture of a person?", and if so told to read "[link to cautions regarding personality and privacy rights]."
  • We change the software so any image that is in certain categories, such as most "living people"- and "recently dead people"-type categories automatically display a template-like message alerting downstream users of possible privacy and personality rights unless the image was marked with a template to suppress this display. For example, certain OTRS-type, "public figure"-type, and "non-identifiable-person"-type templates or categories would suppress this.
  • We explicitly create a process, probably within OTRS, whereby a person who is willing to provide proof that they are or legally represent the subject of a photo can privately request the removal or cropping of any photo in which they are clearly identifiable on privacy grounds. The OTRS team will be charged with the responsibility of doing a "quick check" to see if the presumption that privacy has not been waived is still in effect. For example, if the image or a different image recognizable as the same person was already published prior to this image getting on the Commons, the presumption may no longer hold. Yes, folks, this means if your face appeared in a newspaper or if you still look like your High School Yearbook and that yearbook is or was available to the general public, it's going to be hard to argue that you have privacy rights with respect to your photo.
  • We have a similar process, probably within OTRS, whereby the subject or his representative can require that an image be tagged with a publicity-rights-related template warning users that the subject is reserving publicity rights.
This package of recommendations will require a lot of work.
Another option - one that I don't have a problem with as long as the WMF doesn't have a problem with it - is to simply admit to ourselves and the general public that we are not going to solve this problem from a legal perspective. Instead, we can decide what if any changes we want to make for the convenience of those who use the Commons while admitting to ourselves and everyone else that the presence or absence of any such templates is legally meaningless and meant only for the convenience of those who use the Commons. The "default action" of "leave things the way they are now" is a special case of this.
So, do we want (or need) to do the work to fix the legal issues? If not, what steps, if any, do we want to make? Davidwr (talk) 18:58, 12 May 2014 (UTC)
A wee bit long. Per the Commons:General disclaimer, there is no need to "cover us" or obligation to take "prudent actions to verify the information". The personality rights template isn't mandatory and editors are free to add it where they think it may be a helpful additional reminder. I think you've got the wrong idea about "privacy rights". It isn't about requesting there be no photo of oneself published anywhere. It is about people taking and/or publishing pictures of you in a situation where you have a reasonable expectation of privacy, coupled to some extent with the degree to which you are a public figure. So in File:King's Cross Western Concourse - central position - 2012-05-02.75.jpg none of the individuals have any right to privacy claims (in the UK). -- Colin (talk) 21:07, 12 May 2014 (UTC)

"Commercial use"

Was there any consensus at all behind this recent edit? The term "commercial use" here is very ambiguous. The statement made is certainly true about use in advertising, but normally "commercial use" would include (for example) use of a photo in a book that is for sale. Given that, this statement is almost certainly wrong. Either this should be reverted entirely or there should be better wording here. - Jmabel ! talk 19:07, 31 May 2014 (UTC)

In that context, "commercial use" to me does generally mean advertising, selling items primarily based on the person, things like that. Using a photo in a book is more of the copyright meaning of "commercial use", which is completely different. Carl Lindberg (talk) 20:27, 31 May 2014 (UTC)
I think the term "commercial use" is so ambiguous as to be unhelpful. I don't really know why CC persist in using it for one of their licences. It causes no end of confusion, though it seems sometimes CC's purpuse in life is to make confusing licences. The wikilink is not helpful either. That certain stock agencies use the term to mean certain things doesn't mean the general public understand the term the same way. I think the edit needs more work, and if reverting for now helps then I'm happy with that. -- Colin (talk) 21:08, 31 May 2014 (UTC)
Indeed: 3 months ago, the Landgericht (2nd level court) of Cologne, Germany interpreted that NC means "only for private/personal use".[1],[2] A public, non-commercial broadcaster, who had used a CC-BY-NC licensed image (correctly attributed!) from Flickr, was found to be guilty of unlicensed use and had to pay the photographer. The ruling has been heavily critizised. The broadcaster has appealed to a higher court.[3] (all sources in German) --Túrelio (talk) 08:12, 1 June 2014 (UTC)
  • All the more reason to ensure re-users are aware of the issue. I am not personally married to the term "commercial", but it is widely used in this context and not only in the stock photo industry. Saffron Blaze (talk) 14:37, 1 June 2014 (UTC)
  • But this has nothing to do with a CC-BY-NC license. This has to do with personality rights. Yes, I agree that is the sense of "commercial" in the NC license, but that is not what this page is about. - Jmabel ! talk 15:06, 1 June 2014 (UTC)
I invite you to read this from Stanford University: http://fairuse.stanford.edu/overview/releases/when/#commercial_uses You are welcome to find a better word or phrasing. However, the principle the edit engenders is an important distinction that should be included. Saffron Blaze (talk) 22:52, 31 May 2014 (UTC)
I think this is a repetition of the lengthy discussion at Template:Personality. What about this wording: "In many countries (especially English-speaking ones) the subject's consent is not usually needed for publishing a straightforward photograph of an identifiable individual taken in a public place. However, it doesn't waive the consent requirement which a must for most practical uses other than mere informational use." (I'm not a native English speaker; so feel free to tune it if required.) Jee 05:04, 1 June 2014 (UTC)

Can you print a persons phototograph onto a shirt and walk around with it?

Question above is one of the concerns a possible subject of mine has. - Tobias "ToMar" Maier 12:10, 19 April 2015 (UTC)

Law and jurisdiction in Germany is rather strong on personality rights. The situation in Austria and Switzerland might be similar. For details about Austria, see Commons:Country_specific_consent_requirements#Austria. --Túrelio (talk) 17:38, 3 May 2015 (UTC)

Photos of children exempted?

A recent DR I started has been closed a kept because, according to Taivo's explanation on his talkpage, the identification section of this official guideline does not apply for children's photos multiple years after photographing and the photo has been in Commons for many years and the subject is not identifiable any more. If there is indeed such an exception, I think that the guideline should somehow mention it – or has the DR been closed erroneously?    FDMS  4    00:51, 3 May 2015 (UTC)

Can you explain why a straightforward photograph of a 6-year-old requires explicit consent? The description/filename focus on the teeth, but these are no more unusual than if the photo focused on brown eyes -- hardly a private medical complaint. Aside from this, I agree the subject is identifiable. The cropped version fails to hide the identity, for reasons explained in the guideline and amply demonstrated by links. The idea that because the file is old, or the subject has grown up a bit, somehow makes the subject no longer identifiable or that we should no longer care if the law might have been broken, is ludicrous. Two comments in particular are utterly false: "Maybe the person can be identified outside of Commons, but this is not problem of Commons." and "multiple years after photographing. The photo has been in Commons for many years and the subject is not identifiable any more". Taivo needs to go back to admin-school if he's closing DR's on those misunderstandings. But why was it sent to DR? Looking at David's wiki page, and comparing date-time, it looks like the same girl as in File:Diner by David Shankbone.jpg, taken in Colorado. That looks like a public space to me. You could try asking David. -- Colin (talk) 13:55, 3 May 2015 (UTC)
Because a) consent is generally required in private places and b) often (depending on national/local legislation) required in public places. You are right that the girl appears to be same girl as in the diner, but the lighting looks considerably different and the date and time of data generation is missing (I doubt any of the photos have been created after midnight local time, so that value must be something else). The DR was a way of asking David; I did however not expect a response since he isn't active anymore.    FDMS  4    18:15, 3 May 2015 (UTC)
If the photo is of Shankbone's own child, then consent is presumed. If someone registered a complaint that the photo was of someone else's child, then we'd probably act on it, and maybe if it was obvious the child was unrelated to the photographer. These laws are far more tangled and complicated and not clear-cut than even copyright, which is messy enough itself. In general, I'm not sure we should be proactively policing this type of photo unless the lack of consent is obvious (private place, with unsuspecting or unrelated photographic subjects). Being widely available for 7 years on the internet could actually affect its privacy status, to be honest. If they are uploaded by family / acquaintances I'm not sure we should be deleting on these grounds without an actual complaint. COM:PRP is a copyright-related policy; in this case I think there needs to be a very strong probability of lack of permission before we proactively delete (in the face of a complaint by the subject, the threshold probably goes the other way though). We can use more common sense on these than with the COM:PRP as it relates to copyright. Carl Lindberg (talk) 19:07, 3 May 2015 (UTC)

These pages need work!

Over the last few years these guidelines have expanded considerably in length, while decreasing in usefulness. They now mix up without explanation legal issues with Commons community consensus on what we are prepared to host, and further muddy the waters by talking a lot about third party commercial re-use which has nothing at all to do with us. The pages are a real mess, and need substantial review.

I'd be happy to work towards improving these guidelines, and to look in more detail at the very misleading and partly incorrect UK law section, though it's a big task and I may not be able to commit significant time to it for a little while. Greater legal clarity is definitely needed, and more importantly closer community agreement as to the type of images we will and will not accept. The work will need to be done slowly, carefully, and with full community input, as this is a field where quite a few editors have extremely strong views. Once we have a reasonable agreement from active editors as to what our guidelines should say, we ought then to open an RFC to get final community feedback and approval.

Would anyone care to join me in setting up a small team to look at this in a systematic way over the next few months? --MichaelMaggs (talk) 13:33, 9 November 2015 (UTC)

I would be interested to help. I disagree that mention of "third party commercial re-use" has "nothing at all to do with us". It is in my (limited) experience a very common misunderstanding of the difference between the "commercial use" term that we use when discussing copyright licensing (and is largely concerned with whether the publication is a money-making activity) and the "commercial use" term that stock photo agencies use when discussing personality rights and the need for a model release when an image is used for promotional purposes (even by a non-profit organisation). A recent DR repeated this misunderstanding by claiming the lack of model release meant it breached our licensing policy on permitting commercial use.
I would be happy to see the Country Specific section removed as a start, leaving the page to concentrate on offering general guidance. -- Colin (talk) 13:46, 9 November 2015 (UTC)
Thanks, that would be great. What I meant by 'has nothing to do with us', is that national laws on whether an image can be re-used by a third party in a commercial context without the subject's consent should not determine whether we can host an image here. In almost all countries, in fact, third party commercial use is impossible without a proper model release, and we only need to warn potential re-users of that fact, not mix things up in a way that will put uploaders off. --MichaelMaggs (talk) 13:59, 9 November 2015 (UTC)
This is our guideline on "Photographs of identifiable people", not just a guideline wrt whether we can host or not host. So I think part of its role should be to help clarify various points of confusion on such images, even if that is to explain why certain things don't affect hosting decisions. Our uploaders need to be reassured that images of identifiable people can't simply be used for promotional (i.e. commercial) purposes even though they've just given it a copyright licence that allows "commercial use". That's a very confusing thing. But also, for example, they need to be warned that uploading images here may result in re-use beyond Wikipedia, and if that's all you've got consent for, then that isn't enough. I'd hope this guideline could also be useful to potential re-users (even if we have no legal/moral responsibility for them) in much the same way as stock agencies give general guidance (but not formal legal advice) on how their images may be used. In addition to hosting/deletion there are issues of categorisation, title and descriptions that may be inappropriate. -- Colin (talk) 14:39, 9 November 2015 (UTC)
Sure. It's a question of separating out and clarifying some currently-conflated concepts. Pinging Diliff to see if he'll join us. --MichaelMaggs (talk) 21:18, 9 November 2015 (UTC)
Have been doing some thinking and will put up suggestions for moving forward in the next few days, time permitting. --MichaelMaggs (talk) 17:48, 11 November 2015 (UTC)

Pinging a few people more who have in the past shown knowledge/interest in this area: Colin, Diliff, Saffron Blaze, Jameslwoodward, Rd232, Kaldari, Clindberg (no offence intended to anyone I've missed). --MichaelMaggs (talk) 16:06, 14 November 2015 (UTC)

Try this for starters:
What is “Commercial Use” all about?
There are several different ways the term “Commercial Use” applies to Commons images. The first is that we require that the copyright license on all images hosted on Commons be free for commercial use. This is simply because there are very few non-commercial uses. Textbooks, web sites that accept advertising, all printed materials unless they are both given away free and have no advertising, are all commercial uses. Thus images that are not free for commercial use are not really very useful.
However there are other limitations on commercial use besides copyright. You cannot use another company’s trademark without its consent in your advertising, even if it is simple enough to be PD. In all, or almost all, jurisdictions, you cannot use the image of an identifiable person to advertise your product. That’s true even if the person is one of a large crowd. Note that while “advertise your product” is usually applied fairly broadly, it does not prevent all commercial use. In many jurisdictions, you can show identifiable people in non-fiction books, or on web-sites, provided their appearance can’t be construed as endorsing a product, service, or political candidate.
.     Jim . . . . (Jameslwoodward) (talk to me) 18:17, 14 November 2015 (UTC)
Drawing the distinction between what we are willing to host and what risks re-users may face when re-using hosted works might be a way to approach this. The idea would be to educate people that just because content is hosted here it is not carte blanche to re-use the images as they see fit. Saffron Blaze (talk) 20:11, 14 November 2015 (UTC)
All good points, thank you. --MichaelMaggs (talk) 09:05, 15 November 2015 (UTC)

Plans for 2015/16 review

Stage 1 is to decide on a structure for this page. I suggest something like the following:

Introduction

What's it all about? Separate out various threads. Acknowledge that editors have widely differing views.

Identification

Hosting photographs of identifiable people on Wikimedia Commons

General principles

General community rules (hopefully an agreed policy) for when we can host. These are informed by international laws and conventions but should be simpler, more definite, and clearer. They also include considerations of courtesy and our moral obligation to behave ethically with regard to photographs of people.

These are subject to any tighter laws that may apply in the country in which the photograph was taken. But in the absence of anything more restrictive these community rules should apply.

Link to country-specific laws relevant to hosting

Discuss US legal situation and WMF terms, as those govern everything.

General legal issues

Ethical issues

Relevance of 'public interest'

Consent of the subject

Implied consent vs explicit consent.

Self-portraits

Contractual or other restrictions that apply to the photographer

Removal at the request of the subject, photographer or uploader

When do we require actual requests for removal (if at all)? We should document the rules, and not simply rely on entirely subjective 'courtesy deletions'.

Examples

Legal issues

General discussion - information

Privacy rights

Personality rights

and similar, such as rights to publicity, droit d'image etc

Defamation

Country-specific laws relevant to hosting

Include details here only where local laws on taking or distributing photos are more restrictive than our community rules

Re-use of the image outside the Wikimedia sites

Discuss. Make it clear this does not affect hosting. Link to more detailed page with country-specific laws relevant to-use.

See also

External links

--MichaelMaggs (talk) 15:53, 14 November 2015 (UTC)

I have set up a drafting page for us to work on: Commons:Photographs of identifiable people/Draft 2015-16. Comments as we proceed please to Commons:Photographs of identifiable people/Draft 2015-16. --MichaelMaggs (talk) 08:26, 16 November 2015 (UTC)

Model release - medical photos and more - legal review - WMF grant proposal

I am seeking comments and hopefully endorsements on a draft request to the Wikimedia Foundation for grant funds. If you like, please comment at meta:Grants:PEG/Wikimedia New York City/Legal review and templates for model release.

For some time I have been collecting examples in Wikimedia projects in which there is some disagreement about whether an image violates personality rights and would require a model release to host in Wikimedia Commons. See examples in the discussion sections at meta:Grants_talk:PEG/Wikimedia_New_York_City/Development_of_a_model_release_process_for_photos_and_video.

Thanks. Blue Rasberry (talk) 21:30, 21 December 2015 (UTC)

I would be careful to specify privacy rights in particular, and not be vague with "personality rights". Generally, we have always used the term "personality rights" to be synonymous with "publicity rights" -- that is what the {{Personality rights}} template refers to. However, I see this page is drifting into using it to encompass both (and the en-wiki page does a little, though focuses on publicity rights). Publicity rights are not violated by hosting an image here and do not require a model release. In fact, that type of model release for freely-resuable content would be a very bad idea for most people -- that would be allowing any product company to use that image to promote their product, so the person would lose all control over the context they are used in. I really would not recommend that Commons become a stock image repository of that nature -- we are focused on educational uses, where publicity rights rarely come into play. For images which don't involve people (or are not identifiable), then the simple copyright license is usually enough. For medical images, I assume you are more talking about a release for a specific image for privacy rights, where simply hosting it on Commons can violate such rights without getting the publication OKed. Those would be helpful since those images are generally needed for educational uses -- though again I would try to make sure that such releases do not also encompass publicity rights. Carl Lindberg (talk) 23:26, 21 December 2015 (UTC)
I don't think we get to say we are focused on "educational uses" then insist on images being "totally free". The Pricasso incident highlighted that point rather clearly. Saffron Blaze (talk) 23:17, 23 December 2015 (UTC)
"Free" is a term defined around the copyright -- yes we insist on that as well, but that's a side issue to both model releases and this page. Wikimedia's goal is around "free educational content" -- so yes, the focus is educational uses of material which is "free" per its copyright status. Carl Lindberg (talk) 23:26, 23 December 2015 (UTC)
What you espouse and the reality are quite different. My experience is 95% of the re-uses of my images were for non-educational use, in particular commercial use, and never once was I asked about consent despite identifiable people being in a few of those images. We, as in Commons, contribute to this directly with the constant beating of the "free" drum because when people read free they think of it in the absolute and no consideration is given to consent, trademark, etc. CC furthers this by putting clauses in their licenses that extend beyond copyright into the issue of consent. Saffron Blaze (talk) 19:53, 26 December 2015 (UTC)
We can't stop people from being ignorant enough to not know the difference between free as in freedom and free as in beer. We should nonetheless not deny that the difference exists. I fully support Carl Lindberg here and would support the proposal once his concerns have been adequately addressed - including focusing more on educational content and privacy rights. Any changes being made to address them, Blue?--Elvey (talk) 00:14, 19 February 2016 (UTC)
Elvey I think the problem here is semantics and not intent. From my perspective, the original proposal always included what Carl was saying, except that I do believe we should go further and allow a way to do traditional model releases beyond that. Full model releases are the norm in industry, and half-releases of the kind that Carl is describing and that I also want are a novelty with little precedent. The wording problem is that these terms are not defined - "personality rights release", "model release", "editorial release", "privacy release". Some of those might be the same, or they might be degrees of releases with some being a mere acknowledgement that a photo is taken and others being some kind of consent to do anything. So far as I can tell, major photography agencies do not keep multiple kinds of releases, but rather typically ask that the models only agree to one kind. In any case - yes, one kind of release is educational (as for patient photos) and another is for privacy acknowledgement (as in intimate settings where someone may not understand why they are being photographed). Perhaps other kinds of consent ought to be developed. I am not sure what lawyers already do or what industry already does - this is why I want expert opinions. Thoughts? Blue Rasberry (talk) 00:27, 19 February 2016 (UTC)
I disagree. It's clear to me that the proposal does NOT include what Carl was saying. I'd support a proposal along these lines led by Carl, because of his expertise in this area. Supporting only a full model release of the kind that Carl indicates would be a bad idea for most people seems deaf to his and my concerns, IMO. Semantics matter. Fuller response here: https://meta.wikimedia.org/wiki/Grants_talk:PEG/Wikimedia_New_York_City/Development_of_a_model_release_process_for_photos_and_video#Concerns.3B_also_opposed_for_now.--Elvey (talk) 17:52, 2 March 2016 (UTC)

I think this is a useful proposal. Provided that community agreement can be obtained, particularly here on Commons, this should provide a good opportunity to rationalise some of the difficult issues of consent that have dogged Wikimedia projects for the last 10 years. It won't solve everything - medical images in particular may perhaps be out of scope - but providing a generally-agreed consent form could help cut through some of the ad hoc arguments and admin decisions that remain too often the norm. As a secondary issue, it would be good to make this an a integral part of the community discussions around improving the Commons:Photographs of identifiable people guideline which has needed significant work for some time. I have started on a re-write at Commons:Photographs of identifiable people/Draft 2015-16, but haven't got very far with it yet. Discussions with the community will be key, as an externally-imposed legal document is unlikely to gain much traction. But Bluerasberry has been making very significant efforts to involve others and to answer questions, and I'm sure he is well aware of that. I've said to Bluerasberry that if I can be of help (via Commons/OTRS/WMUK or legal), I'd be pleased to become involved. MichaelMaggs (talk) 15:26, 5 February 2016 (UTC)

What do you think of the suggestions/concerns here?--Elvey (talk) 17:52, 2 March 2016 (UTC)

Is "Category:Hipsters" defamatory?

Raised this at the village pump without much response. Is it defamatory to include photos of identifiable people in Category:Hipsters, given that the term "hipster" is largely pejorative and none of the people appear to be self-identifying as such? --McGeddon (talk) 09:32, 28 February 2016 (UTC)

Denmark needs to change so main rule is "No consent with exceptions"

The info on Denmark should be changed to: "No consent (with exceptions)". The main rule is clearly that only if the intent is to publish a portrait of a specific person do you need consent. This will actually be very seldom. Non-commercial situational photos taken in public and in most cases also in private surroundings and private property do not need any consent - even if you can easily recognize the person. Thus a picture of people in Copenhagen, swimming in Denmark, city life in Aarhus, women enjoying coffee beer at an outdoor Cafe, jogging in the park etc. etc. needs no consent. Ref: http://www.datatilsynet.dk/borger/internettet/billeder-paa-internettet/

Specific examples of pictures from Datatilsynets published guidelines that do not need consent for internet publication: - guests at a rock concert - playing children in a schoolyard - people visiting a zoo - pictures taken during klub activities - pictures of children and young people at school including private schools - pictures taken at a school x-mas holiday event

Exceptions: - People during their work - Customers inside a shop - Visitors inside a bar, discotheque etc. - Pictures that show people in compromising situations

These limitations are also only valid for internet publication. All other media can freely publish. — Preceding unsigned comment added by 125.213.206.226 (talk • contribs) 18:11, 3 July 2015‎ (UTC)

Can we assume?

If a professional photo of a model in a private place is released on the net and there's no documented consent available, can we assume that the subject (the model) is consent with his/her photo on the net and hence upload the photo here? --Mhhossein talk 19:16, 26 December 2016 (UTC)

How can I put my picture Hasnain Ali 512 (talk) 08:29, 10 May 2021 (UTC)

  • @Mhhossein: When you say "released on the net" do you mean that a free license was granted? If so, you can just do the usual to upload it, but make sure you tag it with {{Personality rights}}. If there is no free license, then you can't upload it here any more than any other unlicensed image.
  • @Hasnain Ali 512: can you please be more specific? Are you saying there is an article about you in Wikipedia that needs a photo? That there is a photo you are trying to upload to your user page? or what? And does your question in any way relate to the one that started this section? - Jmabel ! talk 15:23, 10 May 2021 (UTC)

commercial use

@Bluerasberry: I think this edit of yours is mistaken. The prior wording may have been too telegraphic, but I think the meaning was clear; you've changed it to say something else entirely. The prior wording '…the term "publishing" should not be construed to include commercial use…" (with a link) effectively referred people to an article en:personality rights to explain why commercial use is problematic. The new wording simply doesn't make sense: '…the term "publishing" should not be construed to include personality rights…' - Jmabel ! talk 19:47, 1 August 2018 (UTC)

@RP88 and Jmabel: There is a link labeled as "commercial use" which goes to "personality rights". One reason to quit doing this is because it is a surprising link - these are not synonyms and I think no one should expect to click a link about commercial use and arrive at documentation for personality rights.
Another problem with this and elsewhere in the article is confusion that consideration of personality rights requires distinguishing commercial use from noncommercial use. It is inaccurate to assert this distinction, such as repeatedly in the "The right of publicity" section. Nonprofit use can also violate personality rights including use in Wikimedia projects. This particular documentation is supposed to be guidance about Wikimedia project nonprofit usage, and not give legal advice for off-Wikimedia commercial use anyway.
Can either of you explain why you wish to preserve the piped link to "personality rights" with the "commercial use" label? Blue Rasberry (talk) 02:20, 2 August 2018 (UTC)
The right of publicity is a person's right to commercialize or profit from his or her likeness, i.e. their likeness can't be commercially exploited without permission or contractual compensation. The phrase "However, the term 'publishing' should not be construed to include commercial use" is a statement clarifying that just because it happens that in a particular case that a subject's consent is not needed for publishing a photograph of them it is incorrect to assume that this also means you can don't need their consent to exploit the photograph commercially. For the right of publicity is it correct to separately consider commercial uses. This isn't about for-profit or non-profit institutions, as non-profits can can practice commerce. It is entirely possible for a non-profit to violate someone's right of publicity. Just because you might have the right to publish the photo of someone in a public place, does't necessarily mean you can exploit it commercially, e.g. sell the photo to Getty Images for use in advertisements. I'm not sure why you brought up the example of the photo of Avril Nolan. That is an example of commercial use. Because Nolan never signed a release authorizing the photographer to sell her likeness to a third party, the photographer was not authorized to profit from her likeness by selling a photo of it to Getty, and Getty in turn was not authorized to profit from it by licensing it to the NYS Division of Human Rights. I also disagree with your statement about this page not being about off-Wikimedia usage, as it says in the "this page in a nutshell" summary at the top: "Country-specific laws may affect what content we can host, how it may be published, and whether consent is required to re-use it." Re-use by others, including non-Wikimedia re-users, for both commercial and non-commercial uses, is a core Commons goal. Informing re-users how and why consent may be required to re-use a photo of an identifiable person on Commons is absolutely an issue covered by this page. —RP88 (talk) 03:40, 2 August 2018 (UTC)
@RP88: I am having difficulty understanding. Can you comment on use in Wikipedia, like for example the use of this guide's example photograph in en:Anna Unterberger? Do you call this commercial use? Blue Rasberry (talk) 13:03, 2 August 2018 (UTC)
While Commons insists that every media file have a copyright license that permits commercial use, Commons does not make an effort to insure its content is free from non-copyright restrictions. We should have a copyright license from every photographer that covers commercial use, but in the case of images containing identifiable people re-users may need additional permission from the subjects of these images. While Commons has made some effort to inform potential re-users of this issue (via the {{Personality rights}} and {{Consent}} templates), Commons is not a modeling agency and we don’t have any formal process for model releases (it is possible some Commons photographers may mention in their uploads that they have model releases from their subjects). Even with the {{Consent}} template, Commons doesn't have a mechanism to indicate consent sufficient for anything more than hosting on Commons and editorial use on commercial or free publications. If potential re-users, including WMF projects, want to use Commons images containing identifiable people for promotional or advertising work, then they will likely need permission from the subject of the image (either by directly contacting the subject or indirectly via a model release collected by the photographer). The use of a Commons image containing an identifiable person in a Wikipedia article is likely to fall under "editorial use", not “commercial use”, but this isn’t to say that all uses to which a WMF project might put an image from Commons are going to be permissible (additional permission may be necessary for use in something like a fundraising banner). —RP88 (talk) 15:28, 2 August 2018 (UTC)
@RP88: I follow all that. Please look at en:Anna Unterberger. Do you call the use of the photograph in this Wikipedia article commercial use? I am asking about only this instance of use, even while I recognize that other uses in other contexts are possible. Blue Rasberry (talk) 16:04, 2 August 2018 (UTC)
As far as I can think, nothing in Wikipedia should constitute commercial use. - Jmabel ! talk 16:34, 2 August 2018 (UTC)
It sounds like you are asking me to give you specific legal advice, which I can't and shouldn't give you. You might consider suggesting this as a topic for a future Wikilegal article at m:Wikilegal. —RP88 (talk) 16:52, 2 August 2018 (UTC)
@RP88: Got it - no legal advice from you.
Check out en:Talk:Urinary_incontinence#Image for a similar in-wiki case. We have a picture of a person who is used as an illustration of what people with urinary problems look like, just as the model was used to illustrate the concept of HIV.
When we use models to illustrate medical conditions in Wikipedia articles as was done for incontinence, would you call that a commercial use?
Where I am going with this is to make an argument that the intro to this guide should not pipe "commercial use" to "personality rights", because our major concern in Wikimedia projects is to not violate personality rights with the non-commercial in-wiki use of the image.
Briefly - I expect that you agree that the use of the model for urinary incontinence is both a violation of personality rights, and also an instance of non-commercial use, right? Blue Rasberry (talk) 17:24, 2 August 2018 (UTC)
Nolan did not sue the NYS Division of Human Rights for violating her right of publicity, she sued them for defamation and violation of her civil rights. With regards to using File:USMC-110212-M-2664B-103.jpg in a Wikipedia article about urinary incontinence, I don't think the issue turns on the question of whether or not the use on Wikipedia is commercial or noncommercial. Given that the subject of the photo appears in a military PR photo looking at the camera and smiling I think assuming that they have given their consent to have their photograph taken and published is reasonable. In this case I think the issue is whether or not the use in the article is "editorial use" and whether or not the use is defamatory. For example, if the subject of the photo is a public proponent of public spending on urinary incontinence research there might be a legitimate editorial use for their photo in an article about urinary incontinence. Conversely, if the subject of the photo is not themselves known to have urinary incontinence and identifying them as so might harm their reputation, the use of their photo simply to illustrate an article on urinary incontinence might be considered defamation in some jurisdictions. For this particular photo I would not be surprised to find a legitimate editorial use for it in an article about the Thamrapakorn Home for the Aged or Exercise Cobra Gold 2011; I can't immediately see an editorial use for it in an article about urinary incontinence. —RP88 (talk) 18:36, 2 August 2018 (UTC)
Actually, now that I think about it, I wonder if the source of your confusion is the name and use of the {{Personality rights}} template, which is used as a shorthand on Commons for the local laws and moral issues that may impose additional requirements for subject consent above and beyond copyright restrictions. Technically, personality rights is a property right which only covers two of these issues, the right of publicity and the right of privacy. Commercial use can violate the right of publicity, noncommercial use cannot. Hopefully Commons isn't currently hosting photos that violate the right of privacy (and those that are should be nominated for deletion). Thus it is not possible for noncommercial use of a legitimately hosted Commons photo to infringe personality rights. Note that noncommercial use doesn’t mean use by a noncommercial entity, it means use that doesn’t infringe the subject’s commercial property rights. This is why "commercial use" links to personality rights. Other considerations for which subject consent is an issue like defamation, contractual restrictions, rules of professional conduct, and related legal and moral issues should also be be considered when using photographs of identifiable people, but strictly speaking these are not personality rights. In the U.S. stock photography of identifiable people that are otherwise legal for publishing, but lack a model release, are typically identified as "editorial use only”. This is a shorthand that indicates that these photos shouldn’t be used in any kind of advertising or promotional material and that care should be taken to use them where one has a good faith belief that it is legitimately being used for identification, commentary, and other editorial uses that don’t require consent. —RP88 (talk) 21:20, 2 August 2018 (UTC)
The incontinence case seems a clear violation of personality rights (though on an entirely different basis than commercial use). What does that have to do with the photo in en:Anna Unterberger? - Jmabel ! talk 21:38, 2 August 2018 (UTC)
In case I wasn't clear in my first paragraph above, I agree, I don't see any evidence that we have adequate consent to use File:USMC-110212-M-2664B-103.jpg in urinary incontinence. I am not aware of any connection that article and the Anna Unterberger article, so I don't know why Bluerasberry mentioned them both. —RP88 (talk) 21:50, 2 August 2018 (UTC)
There may be some question as to whether we should be less telegraphic and say '…the term "publishing" should not be construed to include commercial use (see en:personality rights…" (or possibly leave out the link entirely, though that's a poor choice) instead of just linking the phrase 'commercial use' to that article, but the key thing here is that we are saying it should not be construed to include commercial use, not that it should not be construed to include personality rights. - Jmabel ! talk 04:34, 2 August 2018 (UTC)
@Bluerasberry: I now see what you are driving at. It's a completely separate issue than the one addressed in that sentence. Yes, we might want to take up that a photo may, in its own right, be perfectly legitimate to publish, but using it in certain contexts might amount to defamation. That's usually not a Commons issue, outside of poorly chosen (or willfully ill-chosen) titles, descriptions, or categories, but to the extent that this page is advice on reuse, I could see adding a sentence or paragraph on that topic. But it is basically a separate on than commercial use. Using a picture of me to advertise a computer would not be defamatory, but it would infringe my right of publicity; using a picture of me to illustrate an encyclopedia article on schizophrenia would not infringe my right of publicity, but it would presumably be considered defamatory. Using that same picture in a Trump campaign ad, implying I support him, would arguably be both. - Jmabel ! talk 21:49, 2 August 2018 (UTC)

Potential for "reactionary" consequences, or expectation of a specific 'confidence' as grounds for needing photo consent?

The following examples were something I wanted to add in some form to the examples, ( assuming someone wants to translate), The wording is not finalised, and I'd like a second view and a LOT of opinions.

  • Media showing political, religious or cultural expressions where the form of such expression may provoke a critical reaction. (potential for reactionary consequences against the photo subject or participants)
The rationale behind this would be where an image could result in negative consequences for the participants if there were identified by authority figures in their area, their boss or family for example for expressing certain views. Commons is not censored, and in doing so should be objectively supportive of all viewpoints, but it should in doing so also reasonably consider that not everyone necessarily would want the world to know they support particular viewpoints if in making those views public, they faced damaging consequences.
  • Images of non-mainstream but consensual expressions of sexuality, which may provoke a critical reaction. (Potential for reactionary consequences against the photo subject or participants.)
The rationale for this, is that despite considerable effort by activists and educators, things like BDSM, pony-play, and sissy feminisation to give a few examples, remain mis-understood. Thusly whilst someone may consensually engage in these practices, there may be an unexpressed expectation that their engagement is not shared more widely because if their involvement was known, it could have negative consequences for them. ( Here in the UK, people have lost employment over having been identified as involved in BDSM "play".). Having 'participant consent' here would indicate that the participants are aware of the issues, and have accepted the privacy risks involved.
  • Medical imagery of identifiable subjects, or which links certain conditions with certain individuals or groups (Expectation of patient confidentiality)
Note: Other than images for which such confidentiality can be said to have been waived by the patient themselves, where the image identifies them, but they are uploading the image themselves.
The rationale for this, should be obvious, given that in most jurisdictions, "medical confidence" is a legally protected patient right.

ShakespeareFan00 (talk) 09:59, 14 March 2019 (UTC)

  • On your first point: wouldn't all political, religious or cultural expression potentially provoke a hostile reaction? We can hardly say that we cannot ever depict identifiable humans in politically, religiously or culturally identifiable contexts. - Jmabel ! talk 15:04, 14 March 2019 (UTC)
Are you saying the first example is too broad? I can agree with that, and would like to define it more narrowly. ShakespeareFan00 (talk) 15:19, 14 March 2019 (UTC)
  • What do you intend these as examples of? Where would this fit into the project page?
  • My concern is mainly with the first two of the three matters you raise here. As far as I know, medical imagery, since it is almost never taken in a public place, pretty much always already requires subject consent. - Jmabel ! talk 20:01, 14 March 2019 (UTC)
These would be entries in the section Commons:Photographs_of_identifiable_people#Examples ShakespeareFan00 (talk) 22:01, 14 March 2019 (UTC)

USA and preemption of non-copyright claims

Although based on the 1976 copyright law, this case Bradley WELLS v. CHATTANOOGA BAKERY (448 S.W.3d 381 March 25, 2014; Court of Appeals of Tennessee. Middle Section, at Nashville) is very interesting in that it shows the process to determine whether the right to publicity (and others) can be used by the subject of a photo to prevent its commercial usage, or whether only copyright claims could be brought.[4]

CBI and DPSU contend that all of Mr. Wells’s causes of action, despite being pled as state statutory or common law claims, involve the rights and subject matter of the Copyright Act. Thus, we must determine whether the Copyright Act preempts these claims. [...] Mr. Wells concedes that his “image and likeness were fixed in a tangible medium of expression”—the decades-old, copyrightable 7 photograph—so we must examine the remaining two requirements which, if satisfied, necessitate the preemption of his claims in favor of the Copyright Act’s rights and remedies. These requirements are that: (1) the work must come within the scope of the “subject matter of copyright” as set forth in Section 102 and 103 of the Copyright Act; and (2) the rights granted under state law must be equivalent to any of the exclusive rights within the scope of federal copyright protection. [...] We find that Mr. Wells’s claims under the Tennessee Personal Rights Protection Act and the Tennessee Consumer Protection Act, and his claims for unjust enrichment, accounting, and conversion, as explained in more detail below, do not involve the use or appropriation of his personal traits or identity, but rather, CBI and DPSU’s use of a copyrightable photograph that includes, among other things, an unidentifiable young boy who happens to be Mr. Wells. This falls within the subject matter of copyright. Accordingly, each state law claim that Mr. Wells asserts satisfies the subject matter requirement for preemption. [...] Because Mr. Wells’s TPRPA claim meets the subject matter and equivalency requirements, we conclude that it is preempted by the Copyright Act.

Nemo 22:09, 6 April 2019 (UTC)

Placing of Moral issues

The section Moral issues is now awkwardly places after the long country specific section on Consent, and thereby easy to miss, and between that section and Identification, which is closely tied to Consent.

Could Moral issues be moved before Consent, thus before the country table, keeping Consent and Identify together?

–LPfi (talk) 09:34, 18 March 2021 (UTC)

✓ Done –LPfi (talk) 08:03, 21 May 2021 (UTC)
Makes sense to me. Thanks. — Rhododendrites talk |  16:15, 21 May 2021 (UTC)
I think the "Country specific" table should be pushed towards the bottom. In the 2013 rewrite, this table was removed. It got reinserted by someone who thought it had been removed accidentally. I'm not convinced it belongs, as it is a reference work aimed at summarising the legal position in each country, and not a community-generated guideline about what is acceptable in each country. We link to a bigger version clearly enough in the lead. But if people think it is useful to retain here, then it certainly could go at the bottom, after the sections that do offer community guidance wrt Commons. -- Colin (talk) 09:09, 2 September 2021 (UTC)

Germany

The table says that for Germany, taking a picture does not require consent (with exceptions).

This may have been true in former times, but it is not wise to expect that to be true nowadays. There is this thing called "Recht am eigenen Bild. This originally did not include just the mere taking of a picture, but times have changed. People have become quite touchy about having their picture taken without being asked. Whenever children are involved, taking pictures without the parents' consent can really get you in trouble.

Better err on the side of caution and get people's consent. Expect this to be the rule, and the exceptions to be the ones you can photograph freely: if the person is a public figure, or if the person only happens to be in the picture while the main focus is on something else ("Beiwerk"). --87.150.8.147 23:39, 30 December 2022 (UTC)

Proposal to change the name to ‘Photos and videos of people’

See Commons:Village pump/Proposals#Rename ‘Photographs of identifiable people’ to ‘Photos and videos of people’. Brianjd (talk) 12:00, 19 January 2023 (UTC)

Dead subjects

If a famous person dies (such as Prince and Tom Petty), are we required to remove any "personality rights" templates on every image of that person? 72.90.141.137 00:24, 23 October 2017 (UTC)

No, in some jurisdictions such rights can last a while after death (sometimes long after)[5]. (In Tom Petty's case, California's lasts a very long time.) Still a valid tag -- just not universally applicable anymore. It's up to re-users to figure out if their use is a problem or not (true if the tag is there or not). Carl Lindberg (talk) 00:58, 23 October 2017 (UTC)
@Clindberg: So that tag is meaningless?   — Jeff G. ツ 07:30, 23 October 2017 (UTC)
Not sure what you mean. We should remove it if it doesn't apply at all, but all warning tags are a courtesy reminder -- I'm sure there are a boatload of images which could have the tag but do not. Commons:General disclaimer always applies. Carl Lindberg (talk) 07:48, 23 October 2017 (UTC)
Archived in the Wayback Machine. Brianjd (talk) 06:50, 22 January 2023 (UTC)

Previously published photos

I feel like I'm missing something really obvious here, but I can't find anything on this page that talks about prior publication. e.g. File:H. G. Wells-TIME-1926.jpg is a photo taken in a private place. So should we be worried that we don't have evidence of Wells' consent? (If not, why?) Colin M (talk) 22:01, 1 September 2021 (UTC)

That doesn't seem like a great example; it's clearly a photo taken with Wells's consent for publication, and of someone dead 70 years (enough for most privacy legislation). --Prosfilaes (talk) 23:13, 3 September 2021 (UTC)
You say that as if it's common knowledge, but my point is that it's not, and the mitigating aspects you just mentioned don't seem to be covered in this guideline. When I ctrl+f for "dead", the only hit I get is in the intro, which just says Certain legal and ethical issues may remain if the person is dead or if they cannot be identified. If there's an exception for long-dead subjects, we should say that. If an adequate level of consent can be be inferred by the fact that a photograph has been published in print, we should say that, or give an example along these lines. Colin M (talk) 16:13, 5 September 2021 (UTC)
@Colin M See #‘Unidentifiable’ or dead subjects. Brianjd (talk) 06:45, 22 January 2023 (UTC)
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