Creative Commons, a non-profit founded by Larry Lessig and others, aims to “rebuild a public domain.” The project is largely a reaction to the expanding scope and duration of copyright protection under law, as well as burgeoning copy-protection technologies incorporated into computers and consumer electronics. To achieve its aims, Creative Commons offers a variety of pre-fab sharing licenses that copyright holders can use to voluntarily surrender some of their legal entitlements. This allows others to “rip, mix, and burn” licensed works – a boon, as many see it, to cultural freedom. Something in the realm of 200 million works are now CC-licensed.
But what do we do about publicity rights? Common-law and statutory rights of publicity in an increasing number of jurisdictions allow people to sue others for the unauthorized commercial use of their image, likeness, or voice. And Creative Commons licenses release only copyright entitlements – not publicity rights. For a photo of an inanimate object, publicity rights are irrelevant. But a photo of a person may not be available for ripping, mixing, and burning in “commercial” contexts, despite being Creative-Commons licensed.
How serious is this as an impediment for a would-be user of CC-licensed works? It depends on how risk-averse the would-be user is. What counts as “commercial” is poorly defined by right-of-publicity case law . In addition, because a significant number of cases construe “commercial” extremely broadly , concerns about publicity rights may entirely discourage the risk averse from using CC-licensed work in any instance where someone stands to make any money – even if very little .
Assuming you share the goals of the free culture movement, aspiring to empower people with the means to rip-mix-and-burn their way to freer and more powerful expression, then the right of publicity issue is very significant. Audio with identifiable human voices and images with identifiable faces have tremendous communicative power. To get an idea of the value of the human face in presenting information, take a look at your run-of-the-mill bank brochure or health-insurance website. They are filled with people – mostly sublimely happy people who are conspicuously anxiety-free.
For a more quantifiable measure of the power of human faces, take a look at Corbis, the image-industry powerhouse, owned by Bill Gates, that licenses its more than 100 million photos to media producers for big bucks. The examples above are from Corbis’s current back-to-school push. The frolicking chemistry students are particularly hilarious. Wasn’t your high school like that? Gosh, if I had a buck for every good-natured gaggle of modestly dressed youngsters laughing it up as they hang out near the periodic table of the elements ...
So if citizens are to be set free to rip, mix, and burn the human voice and images of human faces, there’s a need for a companion regime to the copyright licenses of Creative Commons that aids the voluntary surrender of publicity rights.
How to carry this off is a real head-scratcher. One of the things that provides a safety net for people considering licensing their content under an irrevocable Creative Commons license is the knowledge that, despite a partial surrender of their copyright, they at least retain control over their image, likeness, name, and voice under the right of publicity. This control protects those who CC-license photos of themselves from becoming unwitting spokesmodels for a company’s ad campaign. (Cf. the Virgin Mobile fiasco.)
Thus, the great intellectual challenge of a sharing license regime for the voluntary surrender of publicity rights is carefully delineating categories of usage. That is, how can we legally define rights such that they conform to people’s comfort zones? For instance, say I have a great photo of my worried face. I might be willing to agree to a license or release of this image that would allow a university program to illustrate its flyer for a test-anxiety reduction workshop, but I might flinch at the idea that it would be used in a magazine ad for Zoloft.
I think part of the answer lies in providing licensors with notification of uses and a right to reject, which are aspects of the copysquare license that I am currently developing. In the meantime, I hope konomark might enable the use of identifiable faces and voices by various creators in the absence of pre-fab licenses.
Everybody has fantasies about winning the lottery. And if you’re anything like me, you’ve played out over and over again in your head exactly how you would explain to lottery officials that they couldn’t use a picture of you holding an oversized cardboard check on their website unless they agreed to pay you extra for a right-of-publicity release.
