This has been on commons for *a month*.. Options

[The Joy]

Copyrighted or not, shouldn't the naked woman on the horse still have to give written permission to the Foundation to have the picture of her hosted on the WMF's servers? Even if she gave written and legal permission to the photographer (who also has rights as the taker of the photograph) to place that image on a website, wouldn't any website hosting the photograph have to get her permission?

The photographer can place the picture under the GNU or Creative Commons license and relinquish much of his rights to it, but the subject of the photograph should retain some legal control over the distribution of the work. Right?

[Kelly Martin]

Copyrighted or not, shouldn't the naked woman on the horse still have to give written permission to the Foundation to have the picture of her hosted on the WMF's servers? Even if she gave written and legal permission to the photographer (who also has rights as the taker of the photograph) to place that image on a website, wouldn't any website hosting the photograph have to get her permission?

The photographer can place the picture under the GNU or Creative Commons license and relinquish much of his rights to it, but the subject of the photograph should retain some legal control over the distribution of the work. Right?

The scope of personality rights is complicated, often confusing and, in many cases, unclear. Commons has taken, with some justification, that their use of photographs of identifiable persons does not fall within the scope of personality rights in most jurisdictions because in most jurisdictions personality rights only apply to "commercial" uses of a person's likeness and Commons itself is not using the images "commercially". The "personality rights" warning (which I helped write) is intended to warn people who might reuse Commons content that in doing so they may subject themselves to liability that Commons itself may not bear and, in any case, does not filter against.

Part of the problem is that personality rights inhere just as much in a perfectly ordinary picture of a famous individual (such as, say, Barack Obama) as they do in a picture of a naked woman astride a horse. Barring all images with personality right encumbrances would eliminate virtually all photographs of identifiable individuals, even when doing so would be unreasonable given the ostensibly educational purpose of the Wikimedia projects (only those where the subject has submitted a model release would be acceptable, which is extremely unlikely to happen with respect to most public figures).

[anthony]

The scope of personality rights is complicated, often confusing and, in many cases, unclear. Commons has taken, with some justification, that their use of photographs of identifiable persons does not fall within the scope of personality rights in most jurisdictions because in most jurisdictions personality rights only apply to "commercial" uses of a person's likeness and Commons itself is not using the images "commercially". The "personality rights" warning (which I helped write) is intended to warn people who might reuse Commons content that in doing so they may subject themselves to liability that Commons itself may not bear and, in any case, does not filter against.

Part of the problem is that personality rights inhere just as much in a perfectly ordinary picture of a famous individual (such as, say, Barack Obama) as they do in a picture of a naked woman astride a horse. Barring all images with personality right encumbrances would eliminate virtually all photographs of identifiable individuals, even when doing so would be unreasonable given the ostensibly educational purpose of the Wikimedia projects (only those where the subject has submitted a model release would be acceptable, which is extremely unlikely to happen with respect to most public figures).

I'd be more concerned about privacy rights in this case than with personality rights. We dont know if that picture was taken in a private location or a public location, and there seems to be no public interest served by making the person in the picture identifiable.

[carbuncle]

See the cover marked Wilde Erdbeeren (no, it's not the film).

[taiwopanfob]

The scope of personality rights is complicated, often confusing and, in many cases, unclear. Commons has taken, with some justification, that their use of photographs of identifiable persons does not fall within the scope of personality rights in most jurisdictions because in most jurisdictions personality rights only apply to "commercial" uses of a person's likeness and Commons itself is not using the images "commercially".

Today, the only people who can't pretend to be editorial users of images are advertising companies. No doubt even they are working on schemes to remove even that restriction to their operations: "Your honor, they were photographed with smiles on their faces while using our client's product in a public space. Fair game!"

Part of the problem is that personality rights inhere just as much in a perfectly ordinary picture of a famous individual (such as, say, Barack Obama) as they do in a picture of a naked woman astride a horse. Barring all images with personality right encumbrances would eliminate virtually all photographs of identifiable individuals, even when doing so would be unreasonable given the ostensibly educational purpose of the Wikimedia projects (only those where the subject has submitted a model release would be acceptable, which is extremely unlikely to happen with respect to most public figures).

It's not just Wikimedia, but the entire media industry. If they had to collect releases for all their images, little would be left. This is their argument at least. However, when I look at travesties like Nussenzweig v. DiCorcia, I find it very difficult to side with the "physical reality is just one big, ongoing, press conference" position any more. In a sane world, artistic expression/editorial use stops and commercial use begins, at the very least, somewhere well below $20k per copy.

[Somey]

See the cover marked Wilde Erdbeeren (no, it's not the film).

Good catch!

That would tend to suggest that the woman is an adult, and gave her consent to be photographed, though there might still be some question as to whether she (or even the original photographer) consented to have the images uploaded to Wikimedia Commons.

As for me, I just don't get it. Riding a horse is hard enough on your ass with padded jodhpurs and a friggin' saddle.

[Yintan]

If I understand the cover correctly "Wild Strawberries" is a story about naked, fruit-picking women on horseback. Eh.... okay. They've got a lot to learn about farming, I guess.

..there might still be some question as to whether she (or even the original photographer) consented to have the images uploaded to Wikimedia Commons.

I doubt it. The image appears to have been taken from a publication that most likely wasn't published under the GFDL. And in case of doubt....

[SB_Johnny]

See the cover marked Wilde Erdbeeren (no, it's not the film).

Ok, how on earth do you guys find this stuff?

[carbuncle]

See the cover marked Wilde Erdbeeren (no, it's not the film).

Ok, how on earth do you guys find this stuff?

Well, without revealing too much personal information, I'm kind of a big deal in the nackreiten scene...

[CharlotteWebb]

Well, without revealing too much personal information, I'm kind of a big deal in the nackreiten scene...

Well as long as you aren't in the Nacktlederhosenverkauf scene...

The resemblance is uncanny but now I'm curious what object is visible on the girl's left arm in the commons photo. Either she is not wearing it in the cover art or the yellow lettering perfectly covers it.

Or maybe it's a different day, different episode, etc. Mighty peculiar.

[Tarc]

The Foundation office should have such a document on file. If not, that picture should not be on Commons or any Wikimedia website.

Commons is the biggest collection of copyvios since YouTube. At some point I tried to do some work there but quickly gave up. Like on WP, if you tag a copyrighted image for speedy deletion, you have to provide a link to the original. When you're dealing with texts, the original is not too difficult to find but with images? Pff... I've been browsing more porn sites than I care to, looking for the proof that this one image on Commons was stolen. One down, thousands to go. Takes forever.

http://tineye.com/ can be of help sometimes, though its db is still small.

[thekohser]

And of course by the Kohs rule, since The Adversary is anonymous he must live in his mother's basement!

You're messing up the Kohs rule, HD. It goes: "I reserve the right to imagine that those who choose to remain anonymous are still living in their mom's basement."

Figures that you'd screw up even such a simple disclaimer.

[Happy drinker]

If you buy a house or property of historical/cultural significance, deemed so by a local, state, national, or international body, then you are expecting people to admire or document your property. Most people will understand that when they purchase such a property that people will be interested in it and historical/cultural publications will want to take pictures and such. It's a small price to pay to own a piece of history.

However, the property owners do have privacy and property rights. You can't just walk into their houses or dance in their yards.

What if you're living quietly in your house and someone publishes a new guide with a photo of your house in? That's not a theoretical possibility; it actually happened to someone I know. The house is not deemed by the authorities to be exceptionally noteworthy; it is not Grade 2 listed or anything. And anyone can stand in the street and photograph your house without trespassing, as Google Streetview demonstrated.

I reserve the right to imagine that those who choose to remain anonymous are still living in their mom's basement.

Yes, of course; you're free to imagine we're having a senstional orgy there , or printing counterfeit money, or communicating with aliens on Saturn, or many other things. Frankly, I don't care what your fantasies are and I'd be surprised if many other people here do either.

[thekohser]

I reserve the right to imagine that those who choose to remain anonymous are still living in their mom's basement.

Yes, of course; you're free to imagine we're having a senstional orgy there , or printing counterfeit money, or communicating with aliens on Saturn, or many other things. Frankly, I don't care what your fantasies are and I'd be surprised if many other people here do either.

Time for a poll, then!!!

[taiwopanfob]

And anyone can stand in the street and photograph your house without trespassing, as Google Streetview demonstrated.

... except that Google will remove images for various, and good reasons. Reasons which boil down to the fact that Google wants to act like a good neighbor. We can juxtapose this with what the company would do if it was run by fuckheads, like you, who lead the braying mob at Wikipedia. No process at all, and any requests would be met with gleeful cries of "Suffer, suckaz! You are our fair game!" You'd probably dispatch the cars to park in front of complainants homes, and host real-time video feeds of the comings and goings just because you can.

[The Joy]

There's a 2-minute survey about Commons now at the top of the English Wikipedia.

Remember, the Foundation will likely discount surveys with overly negative responses like they did the last time the Foundation put out a survey.

[Yintan]

Even if she gave written and legal permission to the photographer (who also has rights as the taker of the photograph) to place that image on a website, wouldn't any website hosting the photograph have to get her permission?

Not necessarily. It depends on the deal she made with the photographer. For all we know she could have signed a form that leaves her no rights (or no rights to object) at all. Which is not as far fetched as it may sound. Similar forms allow Sacha Baron-Cohen to make his films, for example.

[Grep]

It depends on the deal she made with the photographer. For all we know she could have signed a form that leaves her no rights (or no rights to object) at all.

And of course all these permissions would be verified by and recorded at commons? No, I thought not.

[anthony]

It depends on the deal she made with the photographer. For all we know she could have signed a form that leaves her no rights (or no rights to object) at all.

And of course all these permissions would be verified by and recorded at commons? No, I thought not.

I don't. Now that it is relatively certain that we're not violating her privacy rights, Kelly's comment about publicity rights comes into play. I obviously don't know the laws of every jurisdiction in the world, but my understanding is that publicity rights generally don't come into play when using an image for noncommercial purposes.

On the other hand, Commons images are supposed to be usable for commercial purposes.

On the other other hand, is this image appropriate for children? I don't know. That's a tough one. With the proper explanation (see below), maybe.

On the other other other hand, is this image educational? Maybe with an appropriate caption explaining it - such as the fact that it was a posed shot for <whatever> magazine. As it stands it is probably actually misleading. It is most likely *not* an example of [[naturalism]] or [[nude recreation]], but an example of someone being paid to take off their clothes, sit on a horse, and have their picture taken. It's promotion of nudism disguised as a depiction of reality, which is fine if you're making a magazine promoting nudism, but not fine if you're making an encyclopedia article. Real nudism tends to be a lot uglier.

So I vote "delete, non-free, anti-encyclopedic". I'd drop the anti-encyclopedic if someone can add a good description of just what the image is, though.

Update: looking at the wayback machine geocities page, the copyright holder of the image seems to be "Michael Zauels", who also seems to be the uploader of the image. So the "non-free" part only applies to the publicity rights, not to the GFDL status.

This post has been edited by anthony: Tue 27th October 2009, 3:54pm

[carbuncle]

On the other other hand, is this image appropriate for children? I don't know. That's a tough one. With the proper explanation (see below), maybe.

On the other other other hand, is this image educational? Maybe with an appropriate caption explaining it - such as the fact that it was a posed shot for <whatever> magazine. As it stands it is probably actually misleading. It is most likely *not* an example of [[naturalism]] or [[nude recreation]], but an example of someone being paid to take off their clothes, sit on a horse, and have their picture taken. It's promotion of nudism disguised as a depiction of reality, which is fine if you're making a magazine promoting nudism, but not fine if you're making an encyclopedia article. Real nudism tends to be a lot uglier.

You are obviously not familiar with nackreiten, which is the world's fastest growing outdoor nude activity, especially among young women aged 18-24.