All,

I had an interesting discussion today in IRC I'm summarizing here in order to clarify some sticky points.

I had recently pushed a new tutorial that included an image I took of a friend. Michael had concerns about the use of this image and the cc-by-sa license I was applying to the entire work. Mainly, did I have a model release for the woman in the photograph (I thought I did, but didn't apparently).

Due to the possible commercial use of cc-by-sa licensed works, there was a possible problem with using that image. To be on the safe side, I replaced it with one of myself, but it did raise some interesting questions.

1. Are we to eschew images with recognizable people in them if we are lacking a model release in-hand (regardless of the licensing status from the rightsholder)?

I have a query out to the cc mailing list to see if I can clarify how they view this, but haven't heard a good answer back yet.

I posit that the responsibility of obtaining/keeping a model release for images that have been licensed cc-by/sa/nd is entirely the original rightsholders. I *think* the premise of cc-licensing is that any required rights have previously been cleared/acquired by the rightsholder, but am not 100% sure.

Does anyone know offhand how wikipedia handles this? Many of their works are also cc-by-sa, and thus could possibly be used in commercial purposes. Do they assume any images uploaded have been rights cleared for the individuals in those images?

What about images licensed PD? Are end-users cleared of liability on the assumption that the rightsholder had already cleared legal rights for using the subjects likeness?

2. If we do require ourselves to have model releases on-hand to be included on wgo, what would be the best way to disseminate those (and to whom)? Keep in mind that often releases contain sensitive personal information about both the model and photographer.

Just looking for a consensus on how best to proceed to avoid any problems.

pat david
http://blog.patdavid.net

IANAL, but I think the rule of thumb for CC is that you should have all the

requirements for a traditional copyright covered first. If you hold the copyright, then you're entitled to re-license your stuff with more permissive licenses like Creative Commons.

This was my understanding also, the tricky part is who is liable to secure further rights if needed (a model release for instance). Is it always assumed that the photog has when using cc licensed works?

Also, how does liability fall? If I use a cc licensed image, can I then be liable for lawsuits if a release wasn't gotten for that image?

But first make sure you have ALL the legal requirements for copyright covered. A portrait and most of the photos showing people faces require a model release if you want to present them as *your* work and protect them with a copyright.
In most countries (if not all) the copyright and similar intellectual property rights preceed any other right, so if you want to share (via PD or CC licencese) you have to legally own the stuff.

This is where things get murky also. In the U.S. For instance, technically I only usually need a model release for commercial use of the image. If it was a fine art photograph that I was selling, I wouldn't normally need it for instance. (Editorial falls here also).

Also, release or not, I will still always own the copyright (regardless of ability to license the image further), unless specifically made as a work for hire.

If you took images published under permissive licenses (PD or CC) for your work, you shouldn't worry. The model release and the ownership are responsability of whoever publised the images under those licenses. In that case you only have to honor the conditions of the published license.

This is what I'm thinking also.

With all that said, however, I think requiring an MR for use on wgo is not a bad idea, and normally isn't too much of a burden to ask for (peace of mind for liability).

pat david
http://blog.patdavid.net