Commons:Personality rights

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 This page is an essay; it contains the advice and/or opinions of one or more Commons contributors.
It is not a Commons policy or guideline, and editors are not obliged to follow it. Please update the page as needed, or discuss it on the talk page.
This page in a nutshell: The current Commons guideline is at Commons:Photographs of identifiable people. This page is a legal review of the right of publicity, according to US law. The right of publicity is different to a right to privacy.

Nothing in Wikimedia may violate any person's personality rights or right of publicity. Content on any Wikimedia project, even though only in Wikimedia, may violate a person's right of publicity. Policies and guidelines must be adhered to in order to provide this protection and, if the policies and guidelines governing a Wikimedia project are insufficient, the legal right must nonetheless be protected. In the U.S., 25 states protect this right;[1] all other states may protect it under laws with similar effect;[2] and a Federal law provides some protection.[3] Where protection is not by a statutory right of publicity, it may be by common law and it may be as a right of privacy,[2] a right against unfair competition,[2] or a right against "the unauthorized appropriation of one's name or likeness".[2] If a person has protection for any part of their identity as a trademark, trademark protection may apply.[2] Some other nations may also protect it. Laws vary between jurisdictions.

The best remedy is to edit carefully to protect people's rights. Information that can be conveyed while violating the right often may be conveyed without a violation.

Warnings against myths

Beware: Use in Wikimedia might violate even without reuse

It is often believed that the right of publicity cannot apply to content on Wikimedia, largely because it is a noncommercial use protected by the First Amendment to the U.S. Constitution, even if it promotes Wikimedia and encourages financial donations to the Wikimedia Foundation. In general, that is probably correct. However, in certain cases, the right can be violated even directly on Wikimedia.[4] This is not permitted.

Beware: Copies may implicate different law elsewhere

Because discussions of this issue tend to be centered on parties' obligations, readers of mirrors and other copies of any Wikimedia content might believe the laws where the copies are located are irrelevant. That is not likely to be the case. For example, if a mirror is hosted in Ohio or Iran, the laws of Ohio or Iran, respectively, may apply.

Beware: Privacy rights are different

Laws governing privacy and laws governing the right of publicity are not the same and are not opposites of each other. They're simply different.

Beware: Consent to be photographed is not consent to use

Many places require consent to photograph someone but such consent, by itself, will not meet the requirement for consent for commercial or advertising use. The consent should be checked to be sure it meets the latter requirement.

Person

Generally, the right of publicity applies to any person, including a public figure.[5] A child or a person judged incompetent by a court of competent jurisdiction should be considered with even greater care, as they probably cannot give valid consent even if they appear to. A dead person or someone on their behalf may have a right of publicity.[6]

Likeness and persona

A likeness is a representation of a person. One writer at Cornell Law School's Legal Information Institute says the right extends beyond name and likeness and includes "other recognizable aspects of one's persona."[2]

Name

A person's full name is a likeness.[7] For example, if Jane Doe were a real person, to say "Jane Doe likes Company X" in advertising for the company without her consent would be a violation, and it would be a violation if the statement was in a Wikimedia article if Company X had arranged for that article to be an advertisement or used in trade.

Media

Besides photographs, any portrait or picture may be included, as long as it is a likeness of the person.[8] This can include mannequins,[9] "statue[s]",[10] "imitation[s]",[10] and "word painting[s]",[10] but it must be "more than [a] mere picture of [a] scene suggested by a play".[10] An author's "research article" was enough to identify the author as a person, when someone else published the article to promote a product without the author's permission.[11]

Fiction

A fictitious biography may be a violation.[12] Fiction in a newspaper accompanied by a likeness of a real person may cause a violation.[13] Editing Wikimedia content to conform to reliable nonfictional sources and citing them will help prevent fictionalization.

Identifiability

Identifiability of a person is necessary for there to be a violation, but, in addition to obvious cases of identifiability, some nonobvious cases also allow identifiability.

How many people did recognize someone does not matter; what matters is whether the person is "recognizable".[14]

A rear-right side view of a nude person shown without the face may still be identifiable in a photograph, i.e., when taken from behind and to a side.[15] A poor quality picture showing only small faces may still allow identifiability because of other facts indicated.[16] Whether someone still looks like they did many years ago in a challenged picture does not matter.[14] Minor changes to a pose may not prevent identifiability,[17] but not all changes permit a lawsuit.[18] The picture must clearly represent the person, as that picture is seen in the advertisement or other restricted use,[14] and must at least come close to being a likeness of the person.[10]

One person's face looking confusingly like another may violate the second person's right of publicity, when the context implies that the look-alike is the second person, even though they're really not, and the intended audience would be fooled.[19] In Wikimedia, captions may be used to prevent such a confusion.

Putting a black or blank strip over someone's eyes in a photo or pixelating a face may not sufficiently protect their right of publicity. A photo of a statue of a person, a photo of one person who seems to be another, or a drawing that looks like a certain person even if it does not look photographic may violate. A picture of a smiling person is more likely to violate than one of the same person not smiling, and the same is true of any other indicium of approval by the person in the picture. Whether any of these violate depends on context. Therefore, edit the image and/or the context to avoid any commercial endorsement. Be especially cautious in articles about companies, nonprofit organizations, products, and famous people. While it is not a problem to include pictures of those organizations' founders and current high executives, products' designers, and persons who are the subjects of the respective articles, otherwise it is generally not acceptable to include a picture of a smiling person using a product in an article about that product, although the same picture may be acceptable for an article about that person.

Wikimedia as advertising or trade promotion

Wikimedia's prohibition of advertising and promotion protects the right of publicity, but only when the prohibition is applied. An editor violating the prohibition, even secretly, may cause Wikimedia content to violate someone's right of publicity.[4] Violation by an editor includes an editor editing from an IP address without a username. For example, an editor turning an article into an advertisement for a company and stating without consent that a certain person endorsed the product is probably violating the law.

Consent

While a right of publicity permits consent for use, consent is not needed for use within Wikimedia if that use adheres to policies and guidelines and, for off-Wikimedia use or reuse, the Wikimedia Foundation does not generally keep records of consent for the right of publicity. A reuser needing consent is generally responsible for obtaining and keeping it independently of the Foundation. If the person whose consent is needed cannot be contacted, so that consent has not been obtained, then the reuser probably has no right to commercially reuse the content.

Remedy

Editors must not violate anyone's right of publicity and are asked to delete or rewrite any violative content found regardless of who edited it previously. The only exception is any content supplied by anyone with higher legal authority within or above the Wikimedia Foundation, in which case editors are asked to notify the appropriate level within the Foundation for reconsideration, as there may be a way to rewrite the content to comply with both this right and other legal obligations.

Applying policies and guidelines on conflicts of interest, advertisement style, and proper sourcing will help ameliorate the general problem.

A recommendation by attorney Leonard D. DuBoff is that "[p]rudent photographers will attempt to comply with the strictest state laws, since their work is likely to be distributed throughout the country."[20] This applies as well to editors.

See also

Abbreviations

Case law reports are typically cited so that a citation has, in order of appearance, case name, volume number, title of set of books, the page number where the case begins, court, and year of decision.

Abbreviations in citations for legal sources, the titles being in popular form:

  • "anno.": annotation(s)
  • "A.L.R.": American Law Reports; 3d: 3d Series
  • "App.Div.": Appellate Division Reports; 2d: 2d Series; official judicial case reports for courts of the Appellate Divisaion of the Supreme Court of the State of New York, one level below the highest level in the State
  • "Civ. Rts. L.", secs. 50 & 51: Civil Rights Law, sections 50 & 51 (not the sections in between), statutory law of the State of New York creating the right of publicity
  • "F.Supp.": Federal Supplement, widely used judicial case reports for the Federal District Courts
  • "L.Ed.": United States Supreme Court Reports, Lawyers Edition; 2d: 2d Series; widely used
  • "Misc.": Miscellaneous Reports; 2d: 2d Series; official judicial case reports for some lower courts of the State of New York
  • "N.E.": North Eastern Reporter; 2d: 2d Series; widely used judicial case reports for the highest courts of several states including New York
  • "N.Y.": New York Reports; 2d: 2d Series official judicial case reports for the Court of Appeals of the State of New York
  • "N.Y.App.Div.": Appellate Division of the Supreme Court of the State of New York, one level below the highest level in the State
  • "N.Y.Ct.App.": Court of Appeals of the State of New York, the State's highest court
  • "N.Y.S.": New York Supplement; 2d: 2d Series; widely used judicial case reports for many courts of the State
  • "N.Y.Sup.Ct.": Supreme Court of the State of New York, not the highest court of the State and not even the Appellate Division of the Supreme Court of the State of New York
  • "S.Ct.": Supreme Court Reporter; widely used
  • "U.S.", as in "387 U.S. 239": United States Supreme Court Reports; official
  • "U.S.C.": United States Code (short title), a topically-arranged collection of current Federal statutes of general applicability, offered by several publishers, one official and some others published with judicial annotations; the number preceding "U.S.C." is the title number and the number following is the section number
  • "U.S.D.C.": United States District Court in an unspecified district in the indicated state; generally, district courts are the lowest level for Federal cases
  • "U.S.D.C.S.D.N.Y.": United States District Court for the Southern District of New York State; generally, district courts are the lowest level for Federal cases
  • "U.S.Dist. Lexis": Part of Lexis, an online legal research service
  • "U.S.P.Q.": United States Patent Quarterly; 2d: 2d Series
  • "U.S.Sup.Ct.": United States Supreme Court

References

  1. ↑ As of 2002: DuBoff, Leonard D., The Law (in Plain English) For Photographers (N.Y.: Allworth Press, rev. ed. 2002 (ISBN 1-58115-225-6)), p. 60 and, more generally, see pp. 59–63.
  2. ↑ a b c d e f anon, Right of Publicity: An Overview (Cornell University (Cornell Law School (Legal Information Institute (LII) ([§] Wex))), as accessed December 14, 2012.
  3. ↑ See the statute at 15 U.S.C., especially § 1125(a)(1)(A), apparently as amended in 1988 (and as effective in late 1989), and see § 1125(d)(1)(B)(i)(V) (on cyberpiracy) (the section as accessed December 17, 2012, at http://www.gpo.gov via page for 15 U.S.C. ch. 22). Other subsections, such as § 1125(b) (on importing, if applicable to text or a file), may apply.
  4. ↑ a b Based on a holding of a Federal court, ruling on State law, in Grant v. Esquire, Inc., 367 F.Supp. 876 (U.S.D.C.S.D.N.Y. 1973), as annotated in New York Consolidated Laws Service: Annotated Statutes with Forms (hereinafter CLS) (LexisNexis, 2001 (ISBN 0-327-10666-2)), Civ. Rts. L., sec. 51, main vol., [anno. group] 20, 13th paragraph.
  5. ↑ Based on a holding of the highest court of the State of New York in Beverley v. Choices Women's Medical Center, Inc., 78 N.Y.2d 745, 579 N.Y.S.2d 637, 587 N.E.2d 275, 19 Media L.R. 1724, 21 U.S.P.Q.2d 1313 (N.Y.Ct.App. 1991), as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 15, 1st paragraph.
  6. ↑ DuBoff, Leonard D., The Law (in Plain English) For Photographers, op. cit., pp. 62–63.
  7. ↑ Name: Based on a holding of a court of the State of New York in Lombardo v. Doyle, Dane & Bernbach, Inc., 58 App.Div.2d 620, 396 N.Y.S.2d 661, 2 Media L.R. 2321 (N.Y.App.Div. 2d Dep't 1977), as annotated in CLS, op. cit., Civ. Rts. L., sec. 50, main vol., [anno. group] 9, 1st paragraph.
    Name must be full name: Based on a holding of a court of the State of New York in Pfaudler v. Pfaudler Co., 114 Misc. 477, 186 N.Y.S. 725 (1920), as annotated in CLS, op. cit., Civ. Rts. L., sec. 50, main vol., [anno. group] 9, 3d paragraph.
  8. ↑ Based on a holding of a Federal court, ruling on State law, in Ali v. Playgirl, Inc., 447 F.Supp. 723, 3 Media L.R. 2540, 206 U.S.P.Q. 1021 (U.S.D.C.S.D.N.Y. 1978) (criticized in WR Acorn Eng'g Ass'n v. Ehrlich-Rominger Architecture 2000 U.S.Dist. Lexis 723 (U.S.D.C.Ore. 2000)), both as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 7, 6th paragraph.
  9. ↑ Based on a holding of a court of the State of New York in Young v. Greneker Studios, Inc., 175 Misc. 1027, 26 N.Y.S.2d 357 (1941), as annotated in CLS, op. cit., Civ. Rts. L., sec. 50, main vol., [anno. group] 9, 4th paragraph, & sec. 51, main vol., [anno. group] 7, 3d paragraph.
  10. ↑ a b c d e Based on a holding of a Federal court, ruling on State law, in Levey v. Warner Bros. Pictures, 57 F.Supp. 40, 62 U.S.P.Q. 376 (U.S.D.C.N.Y. 1944), as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 7, 5th paragraph.
  11. ↑ Based on a holding of a court of the State of New York in Ravich v. Kling, 17 Misc.2d 683, 187 N.Y.S.2d 272 (1959), as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 21, only paragraph.
  12. ↑ Starting and ending in State court and in Federal Supreme Court in between: Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543 (N.Y.Ct.App. 1966), vacated, 387 U.S. 239, 18 L.Ed.2d 744, 87 S.Ct. 1706 (U.S.Sup.Ct. 1967), on remand, 20 N.Y.2d 752, 283 N.Y.S.2d 119, 229 N.E.2d 712 (N.Y.Ct.App. 1967), on rehearing, 21 N.Y.2d 124, 286 N.Y.S.2d 832, 233 N.E.2d 840, 30 A.L.R.3d 196 (1967), appeal dismissed, 393 U.S. 1046, 21 L.Ed.2d 600, 89 S.Ct. 676 (U.S.Sup.Ct. 1969), "and remittitur amd", 20 N.Y.2d 759 (N.Y.Ct.App. 1967), as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 16, 1st paragraph.
  13. ↑ Based on a holding of a court of the State of New York in Sarat Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 295 N.Y.S. 382 (1937), as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 7, 2d paragraph.
  14. ↑ a b c Based on a holding of a Federal court, ruling on State law, in Negri v. Schering Corp., 333 F.Supp. 101 (U.S.D.C.S.D.N.Y. 1971), as annotated in CLS, op. cit., Civ. Rts. L., sec. 50, main vol., [anno. group] 12, 3d paragraph, & sec. 51, main vol., [anno. group] 13, last paragraph.
  15. ↑ Based on a holding of the highest court of the State of New York in Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379, 482 N.Y.S.2d 457, 472 N.E.2d 307 (N.Y.Ct.App. 1984), as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 20, 2d paragraph.
  16. ↑ Based on a holding of a court of the State of New York in Shamsky v. Garan, Inc., 167 Misc.2d 149, 632 N.Y.S.2d 930 (N.Y.Sup. 1995), as annotated in id., CLS, Civ. Rts. L., sec. 50, main vol., [anno. group] 12, 2d paragraph, & sec. 51, main vol., [anno. group] 13, 5th paragraph.
  17. ↑ Based on a holding of a court of the State of New York in Loftus v. Greenwich Lithographing Co., 192 App.Div. 251, 182 N.Y.S. 428 (N.Y.App.Div. 1920), as annotated in CLS, op. cit., Civ. Rts. L., sec. 50, main vol., [anno. group] 13, 1st paragraph.
  18. ↑ Based on a holding of a court of the State of New York in Bass v. Straight Arrow Publishers, Inc., 59 App.Div.2d 684, 398 N.Y.S.2d 669 (N.Y.App.Div. 1st Dept. 1977), as annotated in CLS, op. cit., Civ. Rts. L., sec. 50, main vol., [anno. group] 13, 2d paragraph.
  19. ↑ Based on a holding of a Federal court, ruling on State law, in Allen v. National Video, Inc., 610 F.Supp. 612, 226 U.S.P.Q. 483 (U.S.D.C.S.D.N.Y. 1985), as annotated in CLS, op. cit., Civ. Rts. L., sec. 51, main vol., [anno. group] 20, penultimate paragraph.
  20. ↑ DuBoff, Leonard D., The Law (in Plain English) For Photographers, op. cit., p. 63.
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