Creative commons & "Publicity rights"

[Lorin]

I'm a video editor working on a project for Brentwood-Benson (Christian) music publishing. The end product, a DVD, will be sold to a couple hundred churches in the US for use in their worship services. The theme is kind of "things that are wrong with America that call for a return to Christian heritage. " So, much of the images called for are those showing homelessness, people protesting bailouts, etc. I also needed images of people praying, singing in church settings, reading the bible, etc. Images like this don't really exist on stock photo/video websites. However, they can be found on sites like flickr by people specifiying their photos as under the "creative commons license" (standard attribution license). I've used many of these photos, keeping careful notes with links and the author names to use on a credits page on the DVD. However, the producer is now worried about this part of the creative commons license:

Other Rights — In no way are any of the following rights affected by the license:
Your fair dealing or fair use rights, or other applicable copyright exceptions and limitations;
The author's moral rights;
Rights other persons may have either in the work itself or in how the work is used, such as publicity or privacy rights. See below or click link
Notice — For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.

What are "Publicity Rights"?
Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public. If a CC-licensed work includes the voice or image of anyone other than the licensor, a user of the work may need to get permission from those individuals before using the work for commercial purposes.

This is one of the 4 kinds of Privacy Rights in the U.S.:

…appropriation of a person's name or likeness; successful assertions of this right commonly involve defendant's use of a person's name or likeness on a product label or in advertising a product or service. A similar concept is the "right of publicity" in Restatement (Third) Unfair Competition §§46-47 (1995). The distinction is that privacy protects against "injury to personal feelings", while the right of publicity protects against unauthorized commercial exploitation of a person's name or face. As a practical matter, celebrities generally sue under the right of publicity, while ordinary citizens sue under privacy

I understand that there was a lawsuit recently centered around use of creative commons licensed photos of celebrity Adam Curry. I realize that this does not look good. However, I'm curious about what happens when a photographer or everyday individual takes one of those amazing, one-in-a-million photos (say of someone involved in a human tragedy) and then sells it to Time magazine. You hear about this kind of stuff all the time. Are all subjects pictured in any such photo always tracked down and made to sign releases? Likely not. The end product there is a news product, but the image is still sold. Is what I'm doing decidedly in the "entertainment product" camp? Is there a line there between the two legally? The project doesn't really feel like entertainment. And at least with the images of church people doing church things, it's doubtful that that they would consider this as using their image to sell something that they don't endorse.

Would I be OK with wide shots of crowds verses close up shots of people?

Anyone care to offer advice on "acceptable risk"?

 

[FlyingRon]

Creative commons covers only the copyright of the image. The right to publicity would apply to identifiable pictures of the people. Crowds or other unidentifiable people are usually not a problem. Children are especially problematic.

Your best bet is to use pictures that you have explicitly obtained waivers form the individuals or deal with an agency that has taken care of that for you (i.e., one of the stock photo places rather than just grabbing amateur stuff form flikr).