Commons talk:Photographs of identifiable people

Denmark needs to change so main rule is "No consent with exceptions"

The info on Denmark should be changed to: "No consent (with exceptions)". The main rule is clearly that only if the intent is to publish a portrait of a specific person do you need consent. This will actually be very seldom. Non-commercial situational photos taken in public and in most cases also in private surroundings and private property do not need any consent - even if you can easily recognize the person. Thus a picture of people in Copenhagen, swimming in Denmark, city life in Aarhus, women enjoying coffee beer at an outdoor Cafe, jogging in the park etc. etc. needs no consent. Ref: http://www.datatilsynet.dk/borger/internettet/billeder-paa-internettet/

Specific examples of pictures from Datatilsynets published guidelines that do not need consent for internet publication: - guests at a rock concert - playing children in a schoolyard - people visiting a zoo - pictures taken during klub activities - pictures of children and young people at school including private schools - pictures taken at a school x-mas holiday event

Exceptions: - People during their work - Customers inside a shop - Visitors inside a bar, discotheque etc. - Pictures that show people in compromising situations

These limitations are also only valid for internet publication. All other media can freely publish.

These pages need work!

Over the last few years these guidelines have expanded considerably in length, while decreasing in usefulness. They now mix up without explanation legal issues with Commons community consensus on what we are prepared to host, and further muddy the waters by talking a lot about third party commercial re-use which has nothing at all to do with us. The pages are a real mess, and need substantial review.

I'd be happy to work towards improving these guidelines, and to look in more detail at the very misleading and partly incorrect UK law section, though it's a big task and I may not be able to commit significant time to it for a little while. Greater legal clarity is definitely needed, and more importantly closer community agreement as to the type of images we will and will not accept. The work will need to be done slowly, carefully, and with full community input, as this is a field where quite a few editors have extremely strong views. Once we have a reasonable agreement from active editors as to what our guidelines should say, we ought then to open an RFC to get final community feedback and approval.

Would anyone care to join me in setting up a small team to look at this in a systematic way over the next few months? --MichaelMaggs (talk) 13:33, 9 November 2015 (UTC)

I would be interested to help. I disagree that mention of "third party commercial re-use" has "nothing at all to do with us". It is in my (limited) experience a very common misunderstanding of the difference between the "commercial use" term that we use when discussing copyright licensing (and is largely concerned with whether the publication is a money-making activity) and the "commercial use" term that stock photo agencies use when discussing personality rights and the need for a model release when an image is used for promotional purposes (even by a non-profit organisation). A recent DR repeated this misunderstanding by claiming the lack of model release meant it breached our licensing policy on permitting commercial use.

I would be happy to see the Country Specific section removed as a start, leaving the page to concentrate on offering general guidance. -- Colin (talk) 13:46, 9 November 2015 (UTC)

Thanks, that would be great. What I meant by 'has nothing to do with us', is that national laws on whether an image can be re-used by a third party in a commercial context without the subject's consent should not determine whether we can host an image here. In almost all countries, in fact, third party commercial use is impossible without a proper model release, and we only need to warn potential re-users of that fact, not mix things up in a way that will put uploaders off. --MichaelMaggs (talk) 13:59, 9 November 2015 (UTC)

This is our guideline on "Photographs of identifiable people", not just a guideline wrt whether we can host or not host. So I think part of its role should be to help clarify various points of confusion on such images, even if that is to explain why certain things don't affect hosting decisions. Our uploaders need to be reassured that images of identifiable people can't simply be used for promotional (i.e. commercial) purposes even though they've just given it a copyright licence that allows "commercial use". That's a very confusing thing. But also, for example, they need to be warned that uploading images here may result in re-use beyond Wikipedia, and if that's all you've got consent for, then that isn't enough. I'd hope this guideline could also be useful to potential re-users (even if we have no legal/moral responsibility for them) in much the same way as stock agencies give general guidance (but not formal legal advice) on how their images may be used. In addition to hosting/deletion there are issues of categorisation, title and descriptions that may be inappropriate. -- Colin (talk) 14:39, 9 November 2015 (UTC)

Sure. It's a question of separating out and clarifying some currently-conflated concepts. Pinging Diliff to see if he'll join us. --MichaelMaggs (talk) 21:18, 9 November 2015 (UTC)

Have been doing some thinking and will put up suggestions for moving forward in the next few days, time permitting. --MichaelMaggs (talk) 17:48, 11 November 2015 (UTC)

Pinging a few people more who have in the past shown knowledge/interest in this area: Colin, Diliff, Saffron Blaze, Jameslwoodward, Rd232, Kaldari, Clindberg (no offence intended to anyone I've missed). --MichaelMaggs (talk) 16:06, 14 November 2015 (UTC)

Try this for starters:

What is “Commercial Use” all about?

There are several different ways the term “Commercial Use” applies to Commons images. The first is that we require that the copyright license on all images hosted on Commons be free for commercial use. This is simply because there are very few non-commercial uses. Textbooks, web sites that accept advertising, all printed materials unless they are both given away free and have no advertising, are all commercial uses. Thus images that are not free for commercial use are not really very useful.

However there are other limitations on commercial use besides copyright. You cannot use another company’s trademark without its consent in your advertising, even if it is simple enough to be PD. In all, or almost all, jurisdictions, you cannot use the image of an identifiable person to advertise your product. That’s true even if the person is one of a large crowd. Note that while “advertise your product” is usually applied fairly broadly, it does not prevent all commercial use. In many jurisdictions, you can show identifiable people in non-fiction books, or on web-sites, provided their appearance can’t be construed as endorsing a product, service, or political candidate.

.     Jim . . . . (Jameslwoodward) (talk to me) 18:17, 14 November 2015 (UTC)

Drawing the distinction between what we are willing to host and what risks re-users may face when re-using hosted works might be a way to approach this. The idea would be to educate people that just because content is hosted here it is not carte blanche to re-use the images as they see fit. Saffron Blaze (talk) 20:11, 14 November 2015 (UTC)

Plans for 2015/16 review

Stage 1 is to decide on a structure for this page. I suggest something like the following:

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Introduction

What's it all about? Separate out various threads. Acknowledge that editors have widely differing views.

Hosting photographs of identifiable people on Wikimedia Commons

General principles

General community rules (hopefully an agreed policy) for when we can host. These are informed by international laws and conventions but should be simpler, more definite, and clearer. They also include considerations of courtesy and our moral obligation to behave ethically with regard to photographs of people.

These are subject to any tighter laws that may apply in the country in which the photograph was taken. But in the absence of anything more restrictive these community rules should apply.

Link to country-specific laws relevant to hosting

Discuss US legal situation and WMF terms, as those govern everything.

Ethical issues

Relevance of 'public interest'

Consent of the subject

Implied consent vs explicit consent.

Self-portraits

Removal at the request of the subject, photographer or uploader

When do we require actual requests for removal (if at all)? We should document the rules, and not simply rely on entirely subjective 'courtesy deletions'.

Legal issues

General discussion - information

Personality rights

and similar, such as rights to publicity, droit d'image etc

Country-specific laws relevant to hosting

Include details here only where local laws on taking or distributing photos are more restrictive than our community rules

Re-use of the image outside the Wikimedia sites

Discuss. Make it clear this does not affect hosting. Link to more detailed page with country-specific laws relevant to-use.

External links

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--MichaelMaggs (talk) 15:53, 14 November 2015 (UTC)