July 29, 2008

Some thoughts and findings from investigating my obsession with ‘privacy’

Posted in privacy, representation at 2:00 pm by LB

I’m trying to get a better handle on what laws are in existence regarding photographic representations and personal privacy, and I have been blogging about regularly. I’m just doing some web searching now, but I found some items of interest.

For example, in the USA, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not. The default you should assume for other people’s works is that they are copyrighted and may not be copied unless you know otherwise.


Nothing modern and creative is in the public domain anymore unless the owner explicitly puts it in the public domain(*). Explicitly, as in you have a note from the author/owner saying, “I grant this to the public domain.” Those exact words or words very much like them. Some argue that posting to Usenet implicitly grants permission to everybody to copy the posting within fairly wide bounds, and others feel that Usenet is an automatic store and forward network where all the thousands of copies made are done at the command (rather than the consent) of the poster. This is a matter of some debate, but even if the former is true (and in this writer’s opinion we should all pray it isn’t true) it simply would suggest posters are implicitly granting permissions “for the sort of copying one might expect when one posts to Usenet” and in no case is this a placement of material into the public domain. It is important to remember that when it comes to the law, computers never make copies, only human beings make copies. Computers are given commands, not permission. Only people can be given permission. Furthermore it is very difficult for an implicit licence to supersede an explicitly stated licence that the copier was aware of.

Note that all this assumes the poster had the right to post the item in the first place. If the poster didn’t, then all the copies are pirated, and no implied licence or theoretical reduction of the copyright can take place.

This bit of info applies to the violations involving the circulation of images lifted from personal webpages as I wrote about here.

  • If we thought of representing the body as a thing of art, then one’s representation would be copyrighted. What would that mean philosophically if we viewed one’s representation that way? In an authored work, there is the author’s original work, possibly based on the use of facts. Facts are not themselves copyrighted. What counts as “the facts” of the body? I don’t think one’s representation is.
  • There is a “fair use” exception to copyright, that is done case-by case and could be used to exempt artists, journalists, etc. if we did begin to think about the body as copyrighted.
  • In reading about copyright, I was reminded that “public domain” is the other of “copyright”. Makes my t-shirt that much awesomer!
  • Photographing someone publicly is not a legal right if you profit from it.

    The right of publicity gives an individual a legal claim against one who uses the individual’s name, face, image, or voice for commercial benefit without obtaining permission.

    Just think of all the photos lifted of women or taken publicly of women that get posted on blogs with ad revenue…and they’re all illegal.

  • Also, does anyone know any attorneys who specialize in defamation law? Or the public realm? I’m dying to get some activism started on this. Leave a comment or email me.

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