Copyright disclaimer on team photos

[konklone]

@ultrasaurus raised the point that teammates may not wish to dedicate their image to the public domain. I am not certain that dedicating a photo to the public domain causes you to lose control over your likeness, but want to be responsive to the concern.

This PR adds a small section to the LICENSE and CONTRIBUTING files that exempts teammate photos from the public domain dedication. Since the copyright in photos is generally held by the photographer, not the subject, that basically means that the contributor has to know that the copyright holder (the photographer) is okay with hosting their photo here. I'm very comfortable running under the assumption that this is already the case for all the photos here, and will be going forward, but it's relevant to mention.

cc @mwweinberg

[adelevie]

http://www.copyright.gov/circs/circ03.pdf

Although the Circular states that notice is not required for assertion of copyright, it goes on to say that notice does provide benefits to the copyright owner:

Use of the notice informs the public that a work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not give any weight to a defendant’s use of an innocent infringement defense—that is, to a claim that the defendant did not realize that the work was protected. An innocent infringement defense can result in a reduction in damages that the copyright owner would otherwise receive.

[konklone]

@adelevie Sorry, could you provide some context? I think you're suggesting that we put a link on the bottom of the 18F website to the license file?

[adelevie]

Anything that provides notice I think would benefit the copyright owner if control is being sought. It eliminates a potential defense available to entities that make unauthorized copies.

How notice is given is sort of a moving target given that I have no idea what the new team page will look like. Notice could be:

• a link at the bottom of the current/new team page saying that the photos are under copyright.
• a link back to the license in the repo, with text saying something like "(c) 2015 some rights reserved, see [link]"
• opt-in and per-photo notices

[mwweinberg]

I think the root of this is some confusion between copyright and right of
publicity.

Copyright is the right that controls the reproduction of a specific image.
When you dedicate a specific photo the public domain, you are essentially
saying "anyone can reproduce this image (including building upon it and
incorporating it into other works) without worrying about infringing upon
my copyright."

However, the dedication of a specific image is completely independent of a
right of publicity. Right of publicity is grounded in a theory of privacy,
but essentially (and I'm generalizing here) involves implying endorsement
or association, especially for profit. The public domain basically has
nothing to do with this.

For example, let's imagine if a headshot of Eric is in the public domain.
I could incorporate that headshot into my next wall-sized collage without
infringing copyright.

If I launched a new line of laptops and used that headshot to advertise
them as "Eric approved," I wouldn't be infringing on the copyright in the
headshot because it was in the public domain. However, I would be
infringing on Eric's right of publicity because I was implying that Eric
was endorsing my laptop. The copyright status of the photo is irrelevant to
the analysis.

To take another example (and to probably give one example too many), I
could take a picture of David Bowie walking down the street and give it a
CC0 license, thus dedicating it to the public domain. Anyone could
reproduce that photo without my or David's permission. But using that
photo to imply association or endorsement with David Bowie could infringe
on his right of publicity.

On Thu, Mar 5, 2015 at 6:26 PM, Alan deLevie notifications@github.com
wrote:

Anything that provides notice I think would benefit the copyright owner if
control is being sought. It eliminates a defense afforded entities that
make unauthorized copies.

How notice is given is sort of a moving target given that I have no
idea what the new team page will look like. Notice could be:

• a link at the bottom of the current/new team page saying that the
  photos are under copyright.
• a link back to the license in the repo, with text saying something
  like "(c) 2015 some rights reserved, see [link]"
• opt-in and per-photo notices

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#587 (comment).

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Public Knowledge | @publicknowledge | www.publicknowledge.org
1818 N St. NW, Suite 410 | Washington, DC 20036 | CFC # 12259

Promoting a Creative & Connected Future.

[gboone]

Using the photo to defame or otherwise harm David Bowie or Eric in those examples would infringe too, right? I'm thinking of the Vanna White case where Samsung portrayed her as a robot. IANAL but if I remember the case correctly I think Samsung had permission or at least fair use over the copyrights and trademarks involved but got burned by making a public figure look like a robot. The trick with right to publicity is also that the person claiming infringement has a burden of proof to show they're a well known public figure. David or Eric are famous, for example, but I am not so I would have a harder time proving the harms of an unflattering or endorsing portrayal. From my understanding this is a First Amendment protection for the photographer/artist doing the portrayal.

For copyright infringement you could just file a DMCA takedown and not have to prove you even own the work.

How does this work with Government publications reprinting photos for which they have a license? GSA has a license agreement with one of the stock photo providers, I doubt the provider dedicates anything GSA decides to use into the public domain. Is there a licensing model there that we can follow?

[mwweinberg]

Again, I think it is really important to keep in mind that copyright and
right of publicity are essentially independent here. In the Vanna White
case, I don't believe that there was any copyright infringement involved
(certainly not at the appellate level). Samsung wasn't accused of
infringing any Wheel of Fortune copyrights. They were just accused of
infringing on her right of publicity.

All of the licensing stuff we are discussing here is copyright licensing.
They key question is "can I use this photograph." The answer to that
question is basically unrelated to the question of "can I use this person's
identity"?

Government using commercial stock photos is probably one of those examples
that makes it harder for citizens to fully understand what is available to
them. If the stock photos were created by USG they are not protected by
copyright and are in the public domain. If they were licensed from a third
party, they may very well be protected by copyright and not in the public
domain. Unfortunately, from the perspective of an average citizen it is
hard (if not impossible) to know the difference. Should I rely on the fact
that, as a rule of thumb, everything created by the USG is in the public
domain? Or should I avoid using anything created by the USG just in case
there is an undisclosed copyright issue? Integrating third party content
into USG works without either disclosing them or working out a very
permissive license pushes people towards the second (bad) option.

This is essentially exactly what happened last year with the congressional
headshots. They were published on a USG website and were exactly the type
of thing one would assume is a product of the USG and therefore in the
public domain. But there was a lingering anxiety that they had in fact
been taken by some third party contractor. It is crazy that the only way
to resolve what is both a reasonable and annoying anxiety is to call up
someone and ask.

On Fri, Mar 6, 2015 at 6:40 AM, Greg Boone notifications@github.com wrote:

Using the photo to defame or malign David Bowie or Eric in those examples
would infringe too, right? I'm thinking of the Vanna White case where
Samsung portrayed her as a robot. IANAL but if I remember the case
correctly I think Samsung had permission or at least fair use over the
copyrights involved but got burned by making a public figure look like a
robot. The trick with right to publicity is also that the person claiming
infringement has a burden of proof to show they're a well known public
figure. David or Eric are famous, for example, but I am not so I would have
a harder time proving the harms of an unflattering or endorsing portrayal.
From my understanding this is a First Amendment protection for the
photographer/artist doing the portrayal.

For copyright infringement you could just file a DMCA takedown and not
have to prove you even own the photo.

How does this work with Government publications reprinting photos for
which they have a license? GSA has a license agreement with one of the
stock photo providers, I doubt the provider dedicates anything GSA decides
to use into the public domain. Is there a licensing model there that we can
follow?

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Reply to this email directly or view it on GitHub
#587 (comment).

Michael Weinberg, Vice President, PK Thinks
202-861-0020 (o) | @mweinbergPK

Public Knowledge | @publicknowledge | www.publicknowledge.org
1818 N St. NW, Suite 410 | Washington, DC 20036 | CFC # 12259

Promoting a Creative & Connected Future.

[konklone]

This is essentially exactly what happened last year with the congressional headshots. They were published on a USG website and were exactly the type of thing one would assume is a product of the USG and therefore in the public domain. But there was a lingering anxiety that they had in fact been taken by some third party contractor. It is crazy that the only way to resolve what is both a reasonable and annoying anxiety is to call up someone and ask.

For more on what @mwweinberg is talking about, read this comment thread and this blog post:

https://sunlightfoundation.com/blog/2014/03/05/congress-in-photos-a-civic-hacking-success-story/

[ultrasaurus]

@mwweinberg if I'm reading your perspective correctly, then if I issue a pull request to our website which has this note:

Public domain

This project is in the public domain within the United States, and copyright and related rights in the work worldwide are waived through the CC0 1.0 Universal public domain dedication.

All contributions to this project will be released under the CC0 dedication. By submitting a pull request, you are agreeing to comply with this waiver of copyright interest.

Then I am waiving my copyright interest. There are also "related rights" whatever they are. But I'm not giving the right of publicity to everyone. I would need to explicity give my permission for someone to associate me with something else.

So, it is likely that if someone put my image on their product with an implied endorsement, I could sue them. That seems clear...

However, if someone put a photo of me on a poster with the words "I am a female engineer" -- which is a true statement, but I might feel ambivalent to be used as part of a marketing campaign that focused on my gender, when I really prefer to be known by my accomplishments, but most people would think that was flattering and the statement certainly is true. It's complicated. One could imagine that someone might make such a poster and think they were doing a good thing and there would be no profit or implied endorsement of anything. The point is that I would want to be asked and would likely create a different campaign if I were asked, and want it to be clear that my public domain photo is fine for use in identifying me and my work, but not in other context without my permission.

Does that make sense?

[mwweinberg]

Let me just preface this, as I impliedly preface everything here, with the
statement that this is not specific legal advice, and that if you have
specific questions you should consult a lawyer that is your lawyer.

That being said...

I believe that you are reading that note correctly. For the purposes of
this discussion, you can read "related rights" as more copyright stuff (it
usually refers to things like rights of attribution and other things
connected to copyright in some countries, not privacy and rights of
publicity).

As to your poster question. The question makes sense. The question I
would ask (and I believe you are asking) is "are there non-copyright ways
to prevent this type of behavior?" In other words if, instead of the
picture that you included and dedicated to the public domain, someone took
your picture and used it in the poster in a way you hated, what could you
do? Because remember, if I take a picture of you I own the copyright, not
you.

The answer to that is that I'm not totally sure. If I was your lawyer my
first stop would be to look at right of publicity claims, but in this
specific case I would need to do more research. It isn't crazy to think
that would be a way to go at it. Importantly, this has nothing to do with
your copyright.

Where does this leave you? You may or may not have a way to prevent
someone from using your picture in a female engineer poster campaign. The
answer is at least potentially yes, but off the top of my head I'm not sure
(which, among other reasons, is why this should not be considered legal
advice). If the poster campaign mastermind happened to use your picture
that you dedicated to the public domain, you would have lost the copyright
claim you had to try and stop him or her. If the mastermind just took
their own picture of you for the campaign, the copyright issue would be
irrelevant. None of this would prevent you from just contacting them and
asking them to remove you from the campaign, of course.

As with so many answers you get from lawyers - even when they are not being
your lawyer - this answer is both too long and not actually answering your
question. If the person is in that middle zone where they know enough to
recognize the public domain as something that is available to them, but not
enough to understand that one picture in the public domain doesn't give
them permission to use your likeness, this could create a problem. That
strikes me as a fairly narrow zone, but maybe I just travel in the wrong
circles.

Is any of that in any way helpful? I hope so but I fear not.

On Fri, Mar 6, 2015 at 2:30 PM, Sarah Allen notifications@github.com
wrote:

@mwweinberg https://github.com/mwweinberg if I'm reading your
perspective correctly, then if I issue a pull request to our website which
has this note
https://github.com/18F/18f.gsa.gov/blob/staging/CONTRIBUTING.md:

Public domain

This project is in the public domain within the United States, and copyright and related rights in the work worldwide are waived through the CC0 1.0 Universal public domain dedication.

All contributions to this project will be released under the CC0 dedication. By submitting a pull request, you are agreeing to comply with this waiver of copyright interest.

Then I am waiving my copyright interest. There are also "related rights"
whatever they are. But I'm not giving the right of publicity to everyone. I
would need to explicity give my permission for someone to associate me with
something else.

So, it is likely that if someone put my image on their product with an
implied endorsement, I could sue them. That seems clear...

However, if someone put a photo of me on a poster with the words "I am a
female engineer" -- which is a true statement, but I might feel ambivalent
to be used as part of a marketing campaign that focused on my gender, when
I really prefer to be known by my accomplishments, but most people would
think that was flattering and the statement certainly is true. It's
complicated. One could imagine that someone might make such a poster and
think they were doing a good thing and there would be no profit or implied
endorsement of anything. The point is that I would want to be asked and
would likely create a different campaign if I were asked, and want it to be
clear that my public domain photo is fine for use in identifying me and my
work, but not in other context without my permission.

Does that make sense?

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Reply to this email directly or view it on GitHub
#587 (comment).

Michael Weinberg, Vice President, PK Thinks
202-861-0020 (o) | @mweinbergPK

Public Knowledge | @publicknowledge | www.publicknowledge.org
1818 N St. NW, Suite 410 | Washington, DC 20036 | CFC # 12259

Promoting a Creative & Connected Future.

[ultrasaurus]

@mwweinberg your comments are helpful, thank you for taking the time to explain the landscape a bit

In thinking about this, I like the suggestion by @adelevie of adding a footer note that somehow suggests that the photos are for use with the site. Maybe "team photos used with permission" or something (that would imply that someone should seek permission for use in another context)...?

[mwweinberg]

At that point you are trying to fight misinterpretations of copyright and
right of publicity law with a footer that you hope triggers a pause in
people who make those misinterpretations. I like it.

On Mon, Mar 9, 2015 at 12:04 PM, Sarah Allen notifications@github.com
wrote:

@mwweinberg https://github.com/mwweinberg your comments are helpful,
thank you for taking the time to explain the landscape a bit

In thinking about this, I like the suggestion by @adelevie
https://github.com/adelevie of adding a footer note that somehow
suggests that the photos are for use with the site. Maybe "team photos used
with permission" or something (that would imply that someone should seek
permission for use in another context)...?

—
Reply to this email directly or view it on GitHub
#587 (comment).

Michael Weinberg, Vice President, PK Thinks
202-861-0020 (o) | @mweinbergPK

Public Knowledge | @publicknowledge | www.publicknowledge.org
1818 N St. NW, Suite 410 | Washington, DC 20036 | CFC # 12259

Promoting a Creative & Connected Future.

[gboone]

Where did we land on this? Is this disclaimer in the contributing and license docs enough?

[konklone]

From what I gathered from this thread, it should be.

[ultrasaurus]

thank you. Works for me 👍