I was concerned about the legality of using people's faces (for real time digital projection, for instance) and so I contacted two former classmates at the UI law school and a friend from the Electronic Frontier Foundation (a nonprofit legal group specializing in these issues). I am attaching their responses in "Comments" as I get them, in case anyone else is interested. Keep in mind: this is NOT legal advice, it's just thoughts from people who happen to be lawyers or involved in Intellectual Property law. They're not responsible if they're wrong.
Bottom Line: 2 out of 3 --> (probably) we can do whatever we want in the context of the art show, without prior approval, as long as we're not publicizing our information as fact/news. If someone wants us to take their image down, we probably should.
My EFF contact, in particular, thought we shouldn't worry about this AT ALL.
Subscribe to:
Post Comments (Atom)
4 comments:
Hey Matt,
Interesting question.
As a general matter, giving people notice that they may be a participant in performance art will likely make them less shocked and angry, and can avoid having any legal issues.
I can tell you what I know about general common law causes of action to help your research, but, as you know, I can't give you an opinion about the applicability to your situation.
It may be that if you are doing art, then anything goes b/c 1st amendment protection. I however, don't know much about the 1st amendment. When we studied the common law, we never had cases dealing with artists, only professional media.
There is a tort called False Light (the following is copied from my outline).
False Light: Publication that falsely portrays the P to be different than he is in real life. -harm not required
However, "The Supreme Court in a plurality opinion decided that the privilege to comment on matters of public interest had constitutional protection and could not be lost by the introduction of falsity unless actual malice could be proved." (Hill)
There can also be Invasion of privacy: invasion of someone's reasonable expectation of privacy. Courts almost universally refuse to find this when people are out in public (b/c no reasonable expectation of privacy).
Also, below is are a couple of sections of Nebraska code that may may be of interest in getting you started on your research:
(from http://law.justia.com/nebraska/codes/s20index/s20index.html , this website also has some interprative material for each statute)
Section 20-202
Invasion of privacy; exploitation of a person for advertising or commercial purposes; situations; not applicable.
Any person, firm, or corporation that exploits a natural person, name, picture, portrait, or personality for advertising or commercial purposes shall be liable for invasion of privacy. The provisions of this section shall not apply to:
(1) The publication, printing, display, or use of the name or likeness of any person in any printed, broadcast, telecast, or other news medium or publication as part of any bona fide news report or presentation or noncommercial advertisement having a current or historical public interest and when such name or likeness is not used for commercial advertising purposes;
(2) The use of such name, portrait, photograph, or other likeness in connection with the resale or other distribution of literary, musical, or artistic productions or other articles of merchandise or property when such person has consented to the use of his or her name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof so long as such use does not differ materially in kind, extent, or duration from that authorized by the consent as fairly construed; or
(3) Any photograph of a person solely as a member of the public when such person is not named or otherwise identified in or in connection with the use of such photograph.
Section 20-204
Invasion of privacy; place person before public in false light.
Any person, firm, or corporation which gives publicity to a matter concerning a natural person that places that person before the public in a false light is subject to liability for invasion of privacy, if:
(1) The false light in which the other was placed would be highly offensive to a reasonable person;
and
(2) The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Section 20-205
Publication or intrusion; not actionable; when.
Any publication or intrusion otherwise actionable under section 20-202, 20-203, or 20-204 shall be justified and not actionable under sections 20-201 to 20-211 and 25-840.01 if the subject of such publication or intrusion expressly or by implication consents to the publicity or intrusion so long as such publication or intrusion does not differ materially in kind, extent, or duration from that implicitly or expressly authorized by the consent as fairly construed. If such person is a minor, such consent may be given by a parent or guardian. If the subject of the alleged invasion of privacy is deceased, such consent may be given by the surviving spouse, if any, or by the personal representative.
Section 20-206
Right of privacy; defenses and privileges.
In addition to any defenses and privileges created in sections 20-201 to 20-211 and 25-840.01, the statutory right of privacy created in sections 20-201 to 20-211 and 25-840.01 shall be subject to the following defenses and privileges:
(1) All applicable federal and Nebraska statutory and constitutional defenses;
(2) As to communications alleged to constitute an invasion of privacy, the defense that the communication was made under circumstances that would give rise to an applicable qualified or absolute privilege according to the law of defamation; and
(3) All applicable, qualified, and absolute privileges and defenses in the common law of privacy in this state and other states.
(End of quote)
I hope that this helps your research.
Cheers.
Karl
i wonder about how this all changes with "membership." corporations are encouraging us to become "members" with special discount cards, papers, access to websites, etc in order to gather info on us. the passport i created states (i think) that the passport itself remains the property of the moving crew, much as a U.S. passport is still the property of the U.S. government even though i am the holder or it until my death or loss of citizenship.
but if our participants, by applying for the passport and participating in our "game" or "art show" or whatever, sign on as members and we have fine print or bold print that gives us permission to use their face and info would this cover us? not sure. and not sure if we want to go this route. also, what if we just used their image. i do think this use is completely different as an artistic exploration.
essentially, i'm not that interested in getting into discussions with participants about the use or control of their info/likeness. this project seems to be more about inclusion ("you may already be a member") than trying to copy a corporate model of false inclusion. through how we interact with participants we'll need to make that clear. i want to push people out of comfort zones but i don't want them to identify us as the same model that is already out there. another option might be an opt in/opt out type of permission?
I absolutely agree that if we had to ask permission, we might as well forget about using the images.
Membership definitely is interesting--if we wanted to explore this idea (creating fake histories, whatever) it probably wouldn't be too difficult to protect ourselves with a little bit of information somewhere on the passport, but I'm not sure we even want to.
As long as we're keeping faces and information within the show--not putting it online for everyone else to use, I don't think people can have a problem with it. This is implicitly an opt-in/out deal--you don't like having your image in the space, you can leave. If we are going to put photos on the Internet (which we should think about whether or not we actually want to do this) we could cover that either as part of the pamphlet or labeling the information we're putting up as fictional. We'd just make photos easy to take down if someone objected, which they probably wouldn't.
Although I just got a phone call saying more emails of this sort are on the way, I think the next step would be to decide what we actually >want< to do, and then decide whether or not we're comfortable doing it. Any thoughts?
EFF guy says no problem. The other law student said: "Danger", basically, and Karl retracted his warning and said: "probably no real issue here".
Post a Comment