When sourcing additional Creative Commons-licensed images for the Japan picture book I am making from photo-sharing sites such as Flickr, I realized that pictures that portray people are not necessarily free to use, because of so-called portrait rights, despite of what the CC license says.

In today’s post, I would like to touch briefly on a limitation to the use of open content in general, with Creative Commons as a particular example. The limitation is that the author cannot give away, by license, more rights than he or she has. In the case of pictures (and videos and other works) that include people, such rights that are not for the author to control may include the right of those portrayed to object to publication on the basis of their so-called portrait rights.

What are Portrait Rights?

In short, portrait rights form a limited right to object to (control) the publication of photos (or videos), on the basis of privacy, a bankable reputation, or both, for well-known persons, persons in private situations and/or professional models. (This is under Dutch law, your mileage may vary depending on your jurisdiction.)

In their contribution [pdf] to The Future of the Public Domain - Identifying the Commons in Information Law (Information Law Series 16, The Hague: Kluwer Law International 2006) Professor Bernt Hugenholtz and Lucie Gibault of the University of Amsterdam summarize it so:

The right to privacy is at the core of so-called rights of publicity or ‘portrait rights’, that provide increasingly powerful proprietary protection to pecuniary interests in marketable names and images of public or less than public figures.

Are Portrait Rights Different in the Context of Creative Commons-Licensed Works?

Not necessarily. Although the law is the same, current differences in process might make for added uncertainty for peer-produced Creative Commons-licensed works. As a result of portrait rights, stock image agencies have developed the practice of licensing out only model-released images, where the model has released his or her portrait rights (and promise not to make any claims on the basis of portrait rights ideally). Consequently, there is a reasonable assurance that, as a licensee of such images, you are indeed free to use them. (However, taking a look at the license agreement of a large stock agency, I noticed that their warranty on this point is limited.)

This practice of obtaining model releases does not seem to exist for user-generated/pro-am pictures, although I noticed how on, for example Flickr, authors sometimes add a “model released” statement, the value of which is uncertain.

How to Deal With Portrait Rights when it Regards Creative Commons-Licensed Works

When using a CC-licensed work that includes people, use common sense and, when in doubt ask the photographer, and possibly a lawyer. (With regard to Creative Commons-licensed works that mention they are “model released” I might still contact the author to see the extent and any conditions of such release.) Portrait rights, at least under Dutch law, are not always available, and not absolute. Whether your interest in publishing the pictures outweighs the interest of those portrayed is a question of fact. Notwithstanding, you can imagine yourself at the place of those portrayed, and see whether you would welcome publication. When still in doubt, consider using suitable alternates.

In my opinion, the issue of portrait rights increases the transaction costs (contacting the photographer and/or looking for alternates) of using CC-licensed works, at least for those images that include people and for which you are not sure that no portrait rights are applicable.

So, not to finish on too gloomy a note, two portrait-rights related bonus links. One, World Portraits (“a fair trade photo collection of people from around the world”), an initiative from the Dutch press agency ANP whereby those portrayed receive a royalty for the use of their image. Two, Fotos Encontradas, a site from Argentine with an amazing collection of found photos, more often than not (family) snapshots and portraits.

‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net//. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture by: Tss, me again, under an Attribution 2.0 license. I did *not* get a model release from the Japanese youngsters portrayed.)