Happily, my title for today's rag bag of copyright-related news from the legal blogosphere is not as nihilistic as it ("NIL Protection") may sound on first glance.
N.I.L. is the acronym for "NAME IMAGE LIKENESS", but before I get to the names and likenesses part, I'd like to share something I read in translation (I assume) on an Italian law blog concerning photography that was an epiphany for me.
The philosopher Herbert Marshall McLuhan once stated: ‘Photography, photo-graphy [sic], means writing with light. Photography, cinema, confer a kind of immortality, a pre-eminence on images and not on real life’.
In my opinion, which is based on following copyright protection issues since the early 2000s, the intellectual property rights of photographers seem to be the least understood and least respected by internet users.
The concept that photographers write with light is an eye-opener. Check out the website of Mitchel Gray http://mitchelgray.com/ with Herbert Marshall McLuhan's definition in mind.
Once upon a time, in November of 1996, Mitchel Gray's photograph of an extraordinarily handsome gentleman was on the cover of Men's Health, to which I subscribed because I hoped that reading men's magazines would help me write in the male POV. I bought the limited rights to that photograph for the cover of FORCED MATE for the e-book and POD versions.
One of the most newsworthy cases in recent years is that of the photographer Lynn Goldsmith, who claimed that Andy Warhol infringed her copyright in a particularly sympathetic photographic portrait of the late musician sometimes known as Prince.
Last week, seven of the nine Supreme Court Justices agreed with the photographer that it is not "fair use" to take someone else's photograph, duplicate it, colorize it, and call it transformed into something new. (My words).
NPR writer Chloe Veltman discusses the Supreme Court's
decision in the case of the photographer Lynn Goldsmith vs the Andy
Warhol Foundation. Her explanation is well worth reading, especially if you ever wanted to snag a photo from the internet to copy, or colorize, or monetize.
"Under copyright law, fair use permits the unlicensed appropriation of copyright-protected works in specific circumstances, for example, in some non-commercial or educational cases..." Chloe Veltman explains.
Justice Sonia Sotomayor for the majority opined,
"Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists....Such protection includes the right to prepare derivative works that transform the original."
Dissenters feel that the world is a "poorer" place if Andy Warhol wannabes cannot cut corners by taking other people's works and making minimal alterations. Read Chloe's work for the perhaps-surprising revelation of which two SCOTUS justices fear that creativity will be stifled if (my words follow) those who write in light cannot protect their rights and their work from permissionless riffers and samplers.
Italian intellectual property law bloggers Vittoria Mazzotta, Francesca Tugnoli, and Eleonora Margherita Auletta for ICT Legal Consulting discuss the publication of images and the grey line between privacy and data protection. Perhaps, the crux of the matter is the possible requirement that a person whose image is being exploited for the financial benefit of others ought to have the right to give --or withdraw-- permission for such exploitation.
That's mostly about images, but what about names and likenesses? Not to mention voices (which I will not mention, having discussed deep fakery a few weeks ago).
For the law firm Venable LLP, legal bloggers Sharoni S. Finkelstein and Alexandra L, Kolsky explore how AI (artificial intellience) wants your name, image, and likeness... especially if you are a celebrity. Naturally (pun intended) AI would prefer not to pay for the privilege, but there are protections for your NIL.
Readers may be disturbed to read about what applications such as "Reface" can do in violation of the rights and privacy of the person whose likeness and body may be exploited.
As an aside, one might wonder if a Reface-type process is used when implausibly buff and ripped (Superman-style) bodies are used with a fairly flattering head/face portrait of a vigorous but senior public figure who is seeking office.
As the Venable bloggers point out (amongst a great deal more information):
"In 2020, New York expanded its right of publicity laws to specifically prohibit certain deepfake content. Second, the right of publicity specifically applies to commercial uses. The doctrine might stop AI users from profiting from celebrity image in the advertising and sales context, but creative uses—like deepfake memes, parody videos, and perhaps even uses of AI-generated NIL in film and television—may fall outside the scope of the right of publicity."Under most countries' laws, ignorance is not a good defence.
All the best,
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