I am especially alarmed about what I perceive to be the implications of the Second Circuit in the case of Cariou versus Prince.Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013). The bottom line would appear to be that anyone who grants a photographer permission to take a dignified and beautiful photograph of himself or herself for a specific project has no rights or recourse if someone else takes that beautiful photograph and turns it into something grotesque and abusive for that someone else's profit.
http://next.lexology.com/library/detail.aspx?g=fa1b9366-5592-4342-91e5-6759fdb17338
http://next.lexology.com/library/detail.aspx?g=f937e634-8da1-4c9f-85e2-39337ce11624
How is such a precedent going to promote the arts? Why would any future "Yes Rasta" subjects allow themselves to be photographed or painted if American courts permit the original work to be disrespected under a loose interpretation of "fair use"?
Here's what Wikipedia says about personality rights.
"The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).
Personality
rights are generally considered to consist of two types of rights: the
right of publicity, or to keep one's image and likeness from being
commercially exploited without permission or contractual compensation,
which is similar to the use of a trademark; and the right to privacy, or
the right to be left alone and not have one's personality represented
publicly without permission. In common law jurisdictions, publicity
rights fall into the realm of the tort of passing off. United States
jurisprudence has substantially extended this right.
A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny)."
I wonder why it did not occur to Mr. Cariou to sponsor a class action by his Rastafarian models.
A correspondent of mine tells me that an American "comedian" has published a book that contains pictures of naked Supreme Court Justices. I wonder, is that "fair use"? It is "transformative"? Ought it to be? Whatever happened to civility?
On the other hand, it is alleged that the art world approves of the Second Circuit ruling, because vindicating Mr. Cariou would have been devastating to the field of "appropriation art". What is "appropriation art" but permissionless exploitation of someone else's work? So, I am out of step with the "sharing" economy, which seems to me to have a great deal to do with ripping off the original artist, musician, author.
A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny)."
I wonder why it did not occur to Mr. Cariou to sponsor a class action by his Rastafarian models.
A correspondent of mine tells me that an American "comedian" has published a book that contains pictures of naked Supreme Court Justices. I wonder, is that "fair use"? It is "transformative"? Ought it to be? Whatever happened to civility?
On the other hand, it is alleged that the art world approves of the Second Circuit ruling, because vindicating Mr. Cariou would have been devastating to the field of "appropriation art". What is "appropriation art" but permissionless exploitation of someone else's work? So, I am out of step with the "sharing" economy, which seems to me to have a great deal to do with ripping off the original artist, musician, author.
The article referenced above also discusses Google's book scanning. I've blogged about this before. The "facts" seem to me to be extremely sanitized. In my experience, it is quite possible for a student to do an entire series of homework assignments without purchasing a required course text book simply by using Google books and some simple search terms. So much for snippets and the protections for the copyright owners. Moreover, searching Google straight from the Google Books site leads to links to Russian sites and pirated copies of entire works. Things may have changed... on the other hand, doesn't everyone know that when Google "takes down" a link in response to a complaint from the copyright owner, they re-upload it to their Chilling Effects site, so pirates can find it again.
With this drone business, I wonder about the property rights, not to mention the privacy of homeowners. We are supposed, I think, to have limited rights over the air space immediately above our homes and gardens. We are supposed to have the right to quiet enjoyment of our homes and back yards but now Google and Amazon--and anyone else with a drone--with their cameras and flying machines and camera cars are spying on places that used to be private. Anyone can take a picture of my roof, it seems--I received such a mailing this week--for the purpose of getting my attention and hawking some commercial service or other.
If I have a flat roof with a high parapet, I ought to be able to sunbathe up there, if I wish, without having to worry about being photographed without my consent. Now, apparently, thanks to the Second Circuit not only may I be photographed, but some crude "appropriation artist" could slash my face and photoshop a donkey's penis onto me if he felt that was transformative, witty and profitable.
Then, of course, there is the problem of Spokeo, Zabasearch, Intellius and other such sites that mine public records (often inaccurately) and sell their findings to anyone at all.
http://next.lexology.com/library/detail.aspx?g=a4db79b4-6fb6-41d2-a131-5056e2e47674
For my readers who are unaware of these sites, most will remove your personal information, if you contact them, but you have to know what they have, and you have to check to be sure that your private information has not been re-uploaded.
Have a busy week.
Rowena Cherry
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