User:Kelly Martin/Photographs of identifiable people

This article sets out guidelines in respect to the contribution of photographs of identifiable people to the Wikimedia Commons. Contributors are expected to bear these guidelines in mind when uploading such photographs; contributions which are clearly inconsistent with these guidelines may be removed, usually after discussion but possibly without in egregious cases.

Personality rights and the Wikimedia Commons

In general, every person has at least two specific rights that relate to the use of photographs depicting themselves. The first (the right of publicity) is the right to control the commercial use of their likeness; the second (the right of privacy) is the right to be left alone, and (more specifically in this context) the right not to be made the subject of public scrutiny without consent. (See personality rights on Wikipedia for more information.)

Because the Wikimedia Foundation is a nonprofit entity engaged entirely in activities which are outside the scope of "commercial activity" under most relevant laws in the United States, submitting a photograph to the Commons will generally not by itself constitute a violation of someone's right of publicity. The fact that use on Wikimedia will generally be of a noncommercial nature reduces, but not not entirely eliminate, the risk of liability for privacy violations as well. However, either of these arguments may fail to apply in any number of situations, especially when the photograph was taken somewhere other than the United States. And these arguments certainly do not apply to use by third parties who take content from Commons and use it elsewhere. In any case, this article cannot, and does not, provide legal advice for either contributors or users of the Commons; as always, you are always solely responsible to determine the legality of your actions, either in uploading content to Wikimedia, or in downloading content from Wikimedia and reusing it elsewhere. Rather, this article seeks to set out guidelines for what are acceptable contributions, taking into consideration both our desire to provide as broad a collection as possible and our obligation to respect the abovementioned rights.

What are 'public' and 'private' places?

For our purposes, a private place can be considered a place where the subject has a reasonable expectation of privacy; and a public place is a place where the subject has no such expectation. Note that there may be private places on public land (eg a tent on the beach) as well as public places on private land (eg a large private party or concert where many people are taking photographs). This general rule is a good starting point when considering whether the consent of the subject is needed before uploading, although details may depend upon the country in which the photograph was taken.

Photographs taken in a public place

Generally, in a public place anyone is free in principle to take photographs and the taking of such photographs in such circumstances can be considered a trivial act that must be tolerated by others, even if some people may consider it unpleasant that someone else should take their photograph. (Friel v Austria (1995) 21 EHHR 83 at para 49).

In the vast majority of countries, assent is not as a rule required to photograph people in public places. Hence, unless there are specific legal concerns (eg defamation) or moral concerns (eg picture unfairly obtained), Commons does not require that the subject of a photograph taken in a public place has consented to the image being taken or uploaded. This is so whether the image is of a famous personality or of an unknown individual.

Photographs taken in a private place

Image taken in a private place and requiring consent (here, provided)

Because of the expectation of privacy, the consent of the subject should normally be sought before uploading any photograph featuring an identifiable individual that has been taken in a private place. Even in countries that have no law of privacy, there is a moral obligation on us not to upload photographs which infringe the subject's reasonable expectation of privacy.

Legal issues

There are a variety of non-copyright laws which may impact on the photographer, the uploader and/or the WikiMedia Foundation, including defamation, personality rights and rights to privacy. These vary from country to country, but the general rule is that an image is unacceptable to Commons if it is illegal, or arguably illegal, in any one or more of: (a) the country in which the photograph was taken; (b) the country from which the image was uploaded; (c) the USA (where Commons images are stored).

You should bear in mind that defamation may arise not only from the content of the image itself but also from its description and title when uploaded. An image of an identified unknown individual may be unexceptional on its own, but with the title "A drug- dealer" there may be potential defamation issues in at least some countries.

Moral issues

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. (Univeral Declation of Human Rights, Article 12)

Not all legally-obtained photographs of individuals are acceptable to Commons even if they otherwise fall within the project's scope. The following types of image are normally not acceptable:

• Those that unfairly demean or ridicule the subject
• Those that are unfairly obtained
• Those that unreasonably intrude into the subject's private or family life

A snatched shot of a celebrity caught in an embarrassing position in a public place will probably be allowable; a similar shot of an anonymous member of the public may be allowable; and a similar shot of an anonymous child will probably not be. Images of children may require particular care and consideration.

The extent to which a particular photograph is "unfair" or "intrusive" will depend on the nature of the shot, whether it was taken in a public or private place, and on the type of subject (eg a celebrity; a non-famous adult; a child etc). This is all a matter of degree.

Re-use of the image

Most commercial libraries of stock images impose strict limits on the manner in which the images may be re-used, and they ensure the subject's prior approval of those by means of a model release form. Commons images are released under much wider licences, but without any guarantee that they are free of non-copyright legal restrictions on re-use. Someone re-using in a derogatory manner an unexceptional Commons image of an identifiable subject might run the risk of the subject suing for defamation. But since neither the photographer, the uploader nor the Foundation have encouraged such defamatory use, the image itself is still perfectly acceptable to Commons. The fact that a photograph is capable of being misused does not mean, in itself, that it is objectionable here.

Examples

In each case, of an identifiable individual with no consent given, and assuming no defamation or other legal issues:

No consent was required for this shot as it was taken in a public place

OK

• An anonymous street performer
• An anonymous adult, in a public place
• An anonymous child, in a public place
• Partygoers at a large private party where photography is expected
• A basketball player competing in a match which is open to the public

This image is acceptable, even without consent, but a non-pixellated version entitled "An obese girl" was deleted as potentially derogatory

Not OK

• A man and woman talking, entitled "A prostitute speaks to her pimp" (possible defamation)
• An identifiable child, entitled "An obese girl" (potentially derogatory or demeaning)
• Partygoers at a private party where photography is not permitted or is not expected (unreasonable intrusion without consent)
• Nudes, underwear or swimsuit shots, unless obviously taken in a public place (unreasonable intrusion without consent)
• Long-lens images, taken from afar, of an individual in a private place (unreasonable intrusion)

Removal at the request of the subject, photographer or uploader

Sometimes the subject, photographer or uploader of an image requests that it be removed from Commons, for example because it may cause embarrassment. Generally, images are not removed simply because the subject does not like them, but Administrators are normally sympathetic to removal requests where good reasons can be given.

Avoiding problems

It may sometimes be possible to avoid the legal and moral issues mentioned here, for example by:

• Anonymizing the image (eg by pixellating the subject's face or by cropping it out)
• Careful choice of title and description
• Obtaining and recording the consent of the subject
• Re-taking the picture (eg from another angle) so that the subject cannot be identified.