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.)

In 2007, it’s time to not only talk the talk, but also to walk the walk. Part of why I greatly enjoy being a lawyer in IT, Internet and media law is because there are so many people out there using (new) technologies and tools to shape their thoughts and create things that are beautiful, mesmerizing, evocative and provoking.

So, it’s time to join in the fun, and being a bit of a touche-à-tout, I have started to write and design an account of a trip to Japan that I took in between jobs in the spring of 2005, almost two years ago now. (It largely builds on a set of 100 pictures.) Of course, thinking a bit about this project, I quickly managed to come up with a number of legally-related questions surrounding it; not in the least because I am looking to use some (Creative Commons-licensed and public domain) content that is out there, and because I am looking to (re-)license the work under some type of Creative Commons license. So, while I work on the book in the following couple of months, Technology Law Culture (Netherlands!) will explore a number of legal issues that are likely to come up in the course of making and distributing it.

What to Expect?

I am not too sure what exactly to expect for the topics to be covered. Buzz-word compliant – and sometimes tangential – topics are likely to include: choosing an appropriate Creative Commons license (and changing your mind); what you might understand the non-commercial in Creative Commons to mean; monetization of your user-generated-content, or that of others; using and abusing API’s; the user-centric web, Greasemonkey and unintended uses of websites; and public domain works and their reproduction.

Admittedly, the series approach is a departure from the previous focus of this blog (what, TLC has a focus?) of reporting on legal developments (including court cases) in the field of IT and media law in the Netherlands. Those post are likely to continue as events happen, but the idea of a series of posts centered around the production of the Japan travel account is to have a central point to return to, and to show and illustrate, by first-hand experience, a number of the legal issues surrounding digital DIY.

Why Now?

Are you still giddy from being picked as Time’s person of the year for 2006? So am I, it’s like 1996 all over again ^^, except that this time we are with more users, and have more bandwidth, more content, and more tools to play with. And with that comes more responsibility, and more need to take others, and their interests and intentions, into account. In the wake of large-scale production, distribution and consumption of digital content on the Internet, a number of the legal questions that have come up before are coming back, and we need to come up with answers at one point. I am looking forward to participating in asking and hopefully answering those questions, as a lawyer and as a user. Untill next month, when we will pick a CC license for the book.

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[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: me, having some participatory fun with colleagues in Tokyo. Some rights reserved.)

A bit of an off-topic post today. In the spirit of the holiday season, I am going to share with you a couple recordings of classical music, for your enjoyment. But since I can’t help myself, I will also explain briefly the reason for me being able to share the recording, namely lapsed copyright and neighboring rights.

But first things first. Please go and enjoy Kathleen Ferrier’s marvelous 1952 performance of Mahler’s Three Rückert Songs [mp3, all three songs]: Ich bin der Welt abhanden gekommen [mp3], Ich atmet’ einen linden Duft [mp3], and Um Mitternacht [mp3]. Bruno Walter conducts the Wiener Philharmonic. (The recording is mono, but I recorded it in stereo.)

Remember the Composers

As you probably know, authors receive an exclusive copyright to their works; in most countries, including the EU Member States and the United States, for 70 years after their life. These rights are based on the WTO GATT-TRIPs Agreement of 1994, itself largely incorporating by reference the Berne Convention (1971 Paris Act), and the WIPO Copyright Treaty (WCT) of 1996. The later was implemented into EU Member States law by way of the 2001 EU Copyright Directive (EUCD, 2001/29/EC), and is especially relevant to today’s chance to download the work, as it grants an additional exclusive right of communication to the public, including “the making available to the public of […] works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Since Gustav Mahler lived from 1860 to 1911, it is more than 70 years since his death, and his works are today out of copyright. (Actually, they went out of copyright in 1961 (50 years after 1911) as the 70 year term was only retroactively introduced in the EU with a 1993 Directive. However, for today’s distribution of the songs, this is not relevant.)

Friedrich Rückert, the author of the poems used in the songs, lived from 1788 to 1866, so his poems are out of copyright as well.

So, as far as the author’s of the music and the lyrics are concerned, there are no limitations to making these songs available over the Internet.

And be Mindful of the Performers, their Neighbors

Performers, like Mrs. Ferrier, Herr Walter and the member’s of the Wiener Philharmonic, do not receive copyright protection, as their performance, as artful and inspired as it may be, does not qualify for copyright since it does not meet the required test of originality. Instead, they receive a slightly different set of exclusive rights (or in the absence of those, rights to remuneration) called neighboring rights. This on the basis of again GATT-TRIPs, in addition to the Rome Convention of 1961 and the Geneva Convention of 1971, and on the basis of the little brother to the WCT, the WIPO Phonograms and Performances Treaty (WPPT) of 1996. (The later not in force in the Netherlands, although by way of the European Community as a signatory and the EU Copyright Directive, most substantive provisions still apply; I’ll skip on the niceties of that here.)

For broadcasting, performers (and phonogram producers) have a right to remuneration. For “phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them” however performers (and again, phonogram producers) have a right to exclude such use. A podcast, on-demand streaming, or even the simple download link provided above all fall under the latter.

I recorded the songs from an old Decca record, that I inherited from my grandmother. There is no date mentioned on the recording, numbered LW 5123, but it was made on 20 May 1952. (Mrs. Ferrier was already seriously ailing at the time, and died of breast cancer the following year.) Several places offer it for sale.

So, since it is more than 50 years after the recording was made available (and the performance held, the term starts depending on the one or the other) there are no limitations to making the songs available for download over the Internet. But we are not yet good to go.

And of the Producers too

The producers of phonograms receive essentially the same kind of rights, and for the same duration, as the performers. This on the basis of the same instruments, and the Geneva Phonograms Convention of 1971, although the later does not cover distribution over the Internet.

So, the producer’s rights have also lapsed.

As there are no additional right in the recording, and having checked off all the rightsholders’ rights, we can now label this recording podsafe. Enjoy!

Final Thoughts

The duration of 50 years for neighboring rights is not uncontroversial, and some debate is taking place, most vocally in the United Kingdom, on whether the term should be extended to 70 years. See from the interest group Open Rights more on that here.

My collection of 50+ year old records is fairly limited and ripping them from vinyl takes some work. If I would be interested in making a podcast with historical recordings, would I be able to instead rip the recordings from re-releases on cd? Possibly, at least under copyright. Only the person taking the trouble and expense of the first fixation receives protection as a phonogram producer, and I am not sure that any remastering receives copyright protection, and the re-use might not infringe any database rights the new producer might have in the compilation. (The tort of unfair competition might put a stop to it though.)

The above reasoning is focused on works and recording for which all rights have lapsed. For works to which rights still attach, or for which all rights are not licensed under an alternative license such a Creative Commons however, you can usually get licenses from the corresponding collecting societies, under compulsory licensing schemes or other. To read a little about that, check Colette Vogele’s Podcasting Legal Guide.

If you would like to look for more out of copyright and out of performers’ rights works, try the European Archive. To load your podcast aggregator (iTunes?) with more recent performances, try WGBH, concerts from the Isabella Steward Gardner, and for opera Premiere Opera Podcast or my favorite Scream and Kill.

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

(Picture from: A part from the cover of the Decca record.)