Re:Grandmother ordered to delete Facebook photos under GDPR
by derefr on Thursday May 21, 2020 @05:23PM
(#23265557)
> People can nonetheless charge for sitting for a photo shoot.
It's more about royalties. The professional modelling industry (of any kind—hand models, for an unusual example) would be unsustainable if the only payment were direct work-for-hire. Models need to make money from downstream uses of their likeness, just like people who produce music need to make money from downstream sampling of their song. Otherwise, the most profitable position would become that of the "sampler" (who, after all, wouldn't need to license anything, and so would get their source material for free!), strangling out those who rely on original licensed material, and thus killing any demand for those who produce such material.
> Every newspaper does it every day.
The thing that journalists and documentarists are doing, in such cases (though not all—they often do license!) is fair use. And fair use is a defense, not a legal justification (i.e. it's like murder in self-defense, not like executing someone as part of your legal duties as a state executioner.) In other words, doing something under fair use does not protect you from getting sued; it just means you potentially have a good argument to use, if-and-when you do get sued.
Yes, oftentimes certain types of likeness rights are "obvious fair use." For example, a picture taken of a place, where that place contains a crowd—the photographer is unlikely to attempt to acquire likeness rights for anybody in the crowd. But technically, any one of those people could still sue for an infringement of their likeness rights.
Now, normally, such a crowd-member who sued wouldn't win... but if the person in the crowd was an "ex-celebrity" who'd gone into hiding and had made a statement that they didn't want to be in the public eye any more; and the paparazzist took the photo specifically because the ex-celebrity was in the crowd, with the intent of printing it out on the side of a building and highlighting with a spotlight just the little bit of it where the person is? They'd have a very good case. Even though it's still "a picture of a crowd, in public."
As well, you lose any notion of this implicit "obvious" fair-use defense, when you're no longer taking pictures of public places. A nudist beach, for example? Usually they've legally arranged to be considered "public-access private commercial facilities." You have no fair-use defense for pictures taken there, any more than you do for pictures taken inside a Starbucks.
A home is a private place. Grandma isn't taking street photos. In fact, without an explicit grant of rights, she's not just infringing upon the subject's likeness rights; she's surveilling private property. Just like most retail stores say you are, if you go in and take pictures of the shelves.
It's more about royalties. The professional modelling industry (of any kind—hand models, for an unusual example) would be unsustainable if the only payment were direct work-for-hire. Models need to make money from downstream uses of their likeness, just like people who produce music need to make money from downstream sampling of their song. Otherwise, the most profitable position would become that of the "sampler" (who, after all, wouldn't need to license anything, and so would get their source material for free!), strangling out those who rely on original licensed material, and thus killing any demand for those who produce such material.
> Every newspaper does it every day.
The thing that journalists and documentarists are doing, in such cases (though not all—they often do license!) is fair use. And fair use is a defense, not a legal justification (i.e. it's like murder in self-defense, not like executing someone as part of your legal duties as a state executioner.) In other words, doing something under fair use does not protect you from getting sued; it just means you potentially have a good argument to use, if-and-when you do get sued.
Yes, oftentimes certain types of likeness rights are "obvious fair use." For example, a picture taken of a place, where that place contains a crowd—the photographer is unlikely to attempt to acquire likeness rights for anybody in the crowd. But technically, any one of those people could still sue for an infringement of their likeness rights.
Now, normally, such a crowd-member who sued wouldn't win... but if the person in the crowd was an "ex-celebrity" who'd gone into hiding and had made a statement that they didn't want to be in the public eye any more; and the paparazzist took the photo specifically because the ex-celebrity was in the crowd, with the intent of printing it out on the side of a building and highlighting with a spotlight just the little bit of it where the person is? They'd have a very good case. Even though it's still "a picture of a crowd, in public."
As well, you lose any notion of this implicit "obvious" fair-use defense, when you're no longer taking pictures of public places. A nudist beach, for example? Usually they've legally arranged to be considered "public-access private commercial facilities." You have no fair-use defense for pictures taken there, any more than you do for pictures taken inside a Starbucks.
A home is a private place. Grandma isn't taking street photos. In fact, without an explicit grant of rights, she's not just infringing upon the subject's likeness rights; she's surveilling private property. Just like most retail stores say you are, if you go in and take pictures of the shelves.