Grants talk:PEG/Wikimedia New York City/Development of a model release process for photos and video

Active discussions

AttributionEdit

Cool project idea. One thought that occurs to me is that the licensing would have to be compatible with these health orgs' goals. It might be nice to do CC-BY with attribution to Wikimedia Users or something generic like that to get Wikimedia's name out there, but I'm not sure if many brochures of this sort have attribution other than (c) Whatever Org. I'd be sure we don't end up with CC-BY User:JoeLikesHotDogs123! Calliopejen1 (talk) 02:51, 7 November 2014 (UTC)

Calliopejen1 I am still thinking of copyright. I might like for attribution to go to the en:Wikipedia:WikiProject Medicine for any given language, so that if a photo credit is given it comes with a useful link to a community which can answer questions about medical content on Wikipedia. I am not sure how that can work with CC licensing because a WikiProject is not an entity which owns content. There are other concerns - some photographers may wish to have their name attributed anyway. Some organizations may wish to use these kinds of pictures only if they are public domain.
We might need a range of photos for various uses. I am not sure. Blue Rasberry (talk) 15:39, 7 November 2014 (UTC)

Release of personality rightsEdit

 
Billy talks with his doctor about his embarrassing health issues, private diseases, and criminal addiction to illegal substances

We need a declaration of release of personality rights for health issues which protects the participants, because we need photos that can be used for things which can bring discrimination. Imagine a photo captioned, "Sally knows that she needs to talk with her doctor about sexually transmitted infections" depicting a person in a culture where these things are not discussed, and yet where pictures of good patients would be valuable in creating educational materials. At the photoshoot, we might need legal coaching to tell the volunteer models what risks they will experience just by being photographed.

Medical stock photography is more expensive than typical stock photography because it is more risky to participants and doing this kind of photoshoot is an odd and problematic proposal of a sort that I have never seen done before. I am hoping that Wikipedians are more empowered to give consent to appear in these kinds of photos than typical other populations. I am thinking about this now and will be talking with others. Sometime in the near future I need to come up with a "personality rights release" form. I asked about this on English Wikipedia and on Commons. Blue Rasberry (talk) 15:39, 7 November 2014 (UTC)

Note Commons:Commons:Photographs of identifiable people. Blue Rasberry (talk) 20:06, 2 October 2015 (UTC)

Existing photosEdit

It is my opinion that these photos are representative of some common types of patient photos on Commons. This project would seek to mostly produce simple pictures of someone in a patient role talking to someone in a doctor role, where what they are discussing could be anything. Blue Rasberry (talk) 15:48, 7 November 2014 (UTC)

Examples in Wikimedia projects where model release is used or requestedEdit

Example of stock photo starting on-wiki then being reused everywhereEdit

File:Mooddisorder.jpg
a person having a mood disorder at the beach

DIS Magazine profiled the reuse of a photo submitted to Wikipedia by a photographer who wanted his image reused.

I would like these kinds of high-quality photos to be available on as many of Wikipedia's health articles as possible. Blue Rasberry (talk) 15:07, 15 June 2015 (UTC)

I signaled this at English WikiProject Medicine. Blue Rasberry (talk) 15:14, 15 June 2015 (UTC)
That discussion is archived at en:Wikipedia_talk:WikiProject_Medicine/Archive_67#Wikipedia_to_promote_stock_health_photography. Blue Rasberry (talk) 19:06, 10 September 2015 (UTC)
This is more complicated than I previously realized. Presently a "specialtoyoutoyou" account was under investigation.
Blue Rasberry (talk) 16:04, 22 April 2016 (UTC)

Example of attempt at model release agreementEdit

 
The model for this picture agreed that this photo could be shared on Wikimedia Commons.

In File:Buccal_exostosis.jpg Matthew Ferguson 57 attempted to create a patient consent form. This is a great start. Problems with this form include the following -

  • Not reviewed or endorsed by any legal authority
  • Perhaps the agreement overemphasizes Creative Commons licenses to give legitimacy. Creative Commons addressed copyright, and personality or model rights are something unrelated.
  • The agreement promises that the model will not be personally identifiable. The promise is shaky in this case - what if, for example, the model self-discloses to brag on Facebook? Does that void the agreement and mean that the picture should thereafter be removed from Commons?
  • Wikimedia Commons itself only has a few removal policies unrelated to copyright. It is uncertain what happens if the model wants the image removed later.
  • There is no way to verify that the model agreed to anything. Commons usually uses OTRS to verify, but that may not be appropriate for model releases. Not sure.

More discussion would be useful. Blue Rasberry (talk) 13:51, 10 September 2015 (UTC)

If they tell their friends it is actually them in this image then this is their choice, I do not think there is a legal issue with that. Such "clauses" were placed in the consent form incase anyone would be worried about privacy etc. to an extent that they would otherwise refuse to have the picture taken. Matthew Ferguson 57 (talk) 18:10, 10 September 2015 (UTC)
So you are not sure if I would also have to also send a copy of the consent form as an OTRS ticket or whatever? Matthew Ferguson 57 (talk) 18:12, 10 September 2015 (UTC)
Matthew Ferguson 57 When the uploader says they have another party's permission for copyright, the practice here is to send proof to OTRS. In my view permission for personality rights would be analogous to permission for copyright, so I think having a policy to request proof to OTRS would match an established best practice in a similar situation. There are reasons to not do this - I actually am not sure.
In clinical research there is something called an "informed consent document". It is an agreement between the researcher and research participant. A standard promise that the researcher makes is confidentiality for the research participant, typically modeled after the kind of confidentiality that doctors offer to patients. There is currently debate and chaos in the field of clinical research because of the disruption caused by social media. The researchers do not want to control the participants' personal lives, but when participants disclose their research participation publicly such as by announcing their research participation in social media, then some research participants may incur social problems they did not anticipate. When self-disclosure results in a negative experience for a research participant, it is not certain how much responsibility the researcher has to get them out of these difficulties. The problem is that the researcher is supposed to be savvy and the participant is naive, so whenever the researcher can protect the participant, they ought to do so. I think the same situation applies here. If someone came to trouble because they modeled for Wikipedia, then I would feel bad. With the mouth picture you shared this is unlikely, but just the same, I want to be sure that we adequately disclose the risk of being published and being identified. I do not think it is best to crowdsource trust for identity protection to the general Wikimedia community, so I am unsure that we can make promises to keep confidentiality. At the same time - I am not sure you even need a model release for the kind of picture you shared, so it may be best to not make any promises at all.
I have a lot of uncertainty about many aspects of this. Blue Rasberry (talk) 18:51, 10 September 2015 (UTC)
We should definitely NOT require people send the names of subjects in photographs to volunteers at OTRS. While I get signed consents from identifiable subjects I do not get consent to associated their picture with there real names. OTRS is not set up to handle this nor should they be.
That we have editors on Wikipedia who are happy to launch legal attacks against fellow editors to supposedly verify that the editor has appropriate signed consent is the unfortunate bit. The last thing we should be doing is assisting people in doing this.
The teeth are not identifiable so no signed model release is needed. At least verbal consent is definitely needed though.
When one publishes patient images in journals the author needs to sign a form agreeing that they have appropriate consent. They do not however need to send these forms to the publisher. The publisher and peer reviewers do not need to know the patients name. We should follow this practice. Doc James (talk · contribs · email) 10:27, 30 April 2016 (UTC)

Debate about how to give consent - story from 2008Edit

 
Cesarian section

This image of a caesarian section being performed has been judged to be among the finest images offered by Wikimedia Commons. If it is appropriate for Commons to host the image, then it is a great image to provide. There is consensus that the image is appropriate for Commons.

Dissenting opinions question whether the mother giving birth gave consent for the image. It seems likely that she did, but proof of this consent came from her husband who spoke on her behalf through his Wikipedia account. Some people questioned the legitimacy of that Wikipedia account - was that account really operated by the mother's husband? did the mother actually give consent to model? was process followed? In 2008 when this picture was submitted the decision was made ad hoc with discussion and not with a formal process.

Read the discussion's arguments at en:Wikipedia:Featured picture candidates/Moment of Birth. If there were a process for model release perhaps the decision would have been more clear with less arguing. Blue Rasberry (talk) 19:04, 10 September 2015 (UTC)

Discussion about deleting medical photo because it is personalEdit

A photo used at en:suprapubic cystostomy was discussed for deletion. The copyright status was questioned, but also the personality rights of the model were considered in this discussion. A user suggested that because the photo included a nude person that there should be a model release.

Blue Rasberry (talk) 14:47, 17 November 2015 (UTC)

The issue here isn't just one of model release, but one of 'consent'. Developing appropriate procedures of ethical/medical consent, might be beyond the WMF's scope, given that even the professionals can make bad calls. Sfan00 IMG (talk) 16:53, 17 November 2015 (UTC)

OTRS administrators discuss photo of people on subwayEdit

OTRS administrators with special permission to access private email to Wikimedia projects may see the following discussion -

The issue was rather common - a photo of the interior of typical subway car with typical passengers, none of whom are looking at the camera in this candid shot. In conversation the case was reduced to a question of whether model permission or consent is needed to photograph people in public places. Various issues are raised.

In the end, it is apparent that more clarity on this routine case would be useful. Under what circumstances can Wikimedia projects host images of people taken in public places but without their permission? Blue Rasberry (talk) 13:09, 14 December 2015 (UTC)

Commons deletion discussion related to this issueEdit

 
The picture at issue

At Lane's request I am posting a link to this deletion discussion at Commons as it may be relevant to this issue.

Short version: I took the accompanying photo of two women with their children after a long day for me (and, I would guess, them) at Kew Gardens in London on the day Wikimania 2014 started. We were in a public area (tables alongside a walkway); I shot without their knowledge, much less consent, in order to get as natural a picture as possible (note that you can't see the children's faces in full). I liked that the boy whose face you can see in part is wearing a New York Yankees cap, not typically seen in London. Plus, these women and their children looked like the sort of ideal of Englishness upscale American clothing retailers like to suggest they can help their customers aspire to.

I nominated it for Quality image and that's where this all began. Some other editors thought that European law required consent of the children's parents. See the deletion discussion for how that was resolved. Daniel Case (talk) 07:17, 16 December 2015 (UTC)

Daniel Case Thanks for sharing. The deletion discussion presents many of the common doubts and uncertainties that Wikimedia Commons contributors have about taking photos of people in people. I think Wikimedia Commons would do well to develop clearer guidelines to remove uncertainty about when it is and is not appropriate to share candid public photos of people on Commons. This is a great discussion. Blue Rasberry (talk) 13:46, 16 December 2015 (UTC)
That was actually the ultimate conclusion, that the table here was nowhere near adequate as a guide for editors and needs more work. Daniel Case (talk) 17:00, 16 December 2015 (UTC)

Patient with Marfan syndrome, image taken from academic medical journalEdit

In August 2015 Wikiproject Medicine participants discussed this image of a patient with en:Marfan syndrome. The image has an appropriate copyright release. It came from an academic medical journal and presumably was taken by a research physician in the context of publishing a case study in the scientific literature.

It has been common for decades for physicians to take such photos and publish them in order to discuss health issues in academic publications. What is new in the context of Wikipedia is that these images are being circulated to a public which previously would never have consulted academic publication on medicine. There was discussion in WikiProject Medicine about whether Wikipedia should seek patient consent in cases like this, when the patient might be identifiable. Presumably, the doctor got consent, and the medical journal got consent, and all readers of the medical journal accept photography like this as a standard practice.

It would be nice if in the medical community there could be some consent documents reviewed by community stakeholders and legal counsel which could explain to models how their photos might be used. No one could expect that such model releases would be used in all cases, but no kind of release is available in this sector now, and it would be nice to develop one.

A standard practice might be to accept such images when there is reason to believe that the photographer collected consent which both meets contemporary medical ethics guidelines and which can be confirmed somehow to exist. Proof of existence might be documentation of the name of the physician who took the photograph and the name of the hospital or research institute where the physician worked, in addition to a citation to the source of original publication if any. Blue Rasberry (talk) 15:38, 16 December 2015 (UTC)

Apparently there is a Wiki-community release process for erotic nude imageryEdit

See the image discussed if you choose to do so.

At Commons:Commons:Picture of the day for 1 February 2016 the picture of this day was a nude woman. It is a bit strange to showcase original art in the "Picture of the Day" channel, and I am sure this will be questioned. Leaving this aside, there is a model release used for this photo.

Erotic photography is another kind of photography which needs to have model releases in order. This photo was curated at de:Wikipedia:10. Fotoworkshop, which was an event supported by Wikimedia Österreich. Wikimedia Österreich is a Wikimedia chapter. It is a "featured picture", which is the highest designation of value which the Wikimedia community puts on images, and furthermore, it is in another category for "featured pictures" gathered through the efforts of Wikimedia Österreich.

The model release for this photo has been managed by mailing it in to en:WP:OTRS at ticket:2012031910003139. Probably the model release is orderly as everything about this photo's upload and curation seems orderly, but still, the Wikimedia community is given no information about what an erotic art model release is supposed to be. Also this model release is in German and there is no translation.

There probably is nothing wrong with the model release used for this image. The problem is that the community has no information about model releases in general, cannot read this one unless they have OTRS access and know German, do not know if this model release was reviewed by a lawyer, and do not know how the copyright holder collected this model release. What I would like instead is for some one to publish an acceptable process and if someone questioned a model release, then I would like for uploaders to confirm that their process is at least equal to the acceptable process. I want minimum standards put in place for guidance. Blue Rasberry (talk) 14:03, 1 February 2016 (UTC)

This is actually a general problem with the entire OTRS process. If you use a file and think that the file is licensed but that the copyright holder states that the file is unlicensed (or licensed under a different licence), then it is essentially up to you to prove that the file is licensed. You might say that it says that the file is licensed on Commons, but the rightsholder might respond by stating that he hasn't approved any licence and that the permission statement is fake. I assume that some OTRS tickets are forged, so this argument won't necessarily be wrong. If you think that the rightsholder is lying, then it is up to you to prove this, but the OTRS ticket is confidential information, so it won't be easy. You might be able to appoint an OTRS agent as your witness, but the OTRS agent might not be able to provide the necessary information without violating the OTRS privacy policy.
One example: I often move free files from English Wikipedia to Commons. However, if the file has an OTRS ticket, then I don't dare to move the file to Commons because I don't know what legal risks moving it to Commons would involve. I can't tell if the permission is valid and even if it is valid, I don't know if I would be able to prove that the permission is valid if a court requires me to do this. If someone grants a permission (for personality rights, copyright or any other right), then it seems that a potential user of the material has to treat the permission as if it was never granted if evidence that it was granted is unavailable or confidential.
If the permission is in a language which you do not understand, then you may need to find a translator. This problem is unavoidable since there is no language which is understood by everyone in the entire world. --Stefan2 (talk) 16:08, 1 February 2016 (UTC)
I agree with you that many parts of the OTRS process that are private ought not be private. In many cases, OTRS keeps things private that uploader, reviewer, and content users want public, and it is especially troublesome for hiding things that people want to share. There ought to be OTRS reform for the reasons you describe.
The model release issue is different for a few ways. One way is that there is no agreement that OTRS even should manage model releases. In the case of that upload, the person could have said "I have a model release. I cannot share it." and by current policy, the outcome on Commons would have been the same.
A difference with model releases and copyright release is that with copyright release, all uploaders are required to say that they release the content with a license compatible with CC-By-SA. With model releases, we require no particular characteristics of the release. Regardless of whether a model release might be required by law, useful or not useful, there is no particular way that we tell people to make them and no particular criteria for judging whether anyone has made an appropriate model release.
At least when people release copyright by OTRS, the community can assume good faith that the process is handled by community rules. When someone does a model release by OTRS (or in any method) that conveys no particular information. I think that a model release should convey some minimal information, or that there should be some standard minimal criteria which we say "all model releases have to at least meet this minimum". Blue Rasberry (talk) 14:08, 2 February 2016 (UTC)
Hm. A model release is a permission, and OTRS handles permissions, so in that sense there is no difference between a model release and a copyright licence. Since the rule is that OTRS handles permissions, I suppose that the rule is that OTRS handles model releases.
Your other point is that the conditions stated in the model release are unclear to file information page readers. That seems correct. The file information page contains two copyright tags and one OTRS tag, but it doesn't say why the OTRS tag appears on the file information page in the first place. Has someone submitted a model release which is documented in the OTRS ticket? Or does the OTRS ticket contain evidence that the copyright tags are valid? Oh, right, if the Commons reuser finds this page (listed at Special:GlobalUsage/12-03-17-aktstudien-nuernberg-by-RalfR-32.jpg), then he will find your statement above that the ticket contains a model release. Not very intuitive.
When an OTRS ticket is used for verifying a copyright licence, the OTRS agent adds a copyright tag to the file information page. However, we do not seem to have any model release tags which can be added when a model release is given, so the terms of the model release are secret to Commons reusers. --Stefan2 (talk) 22:50, 2 February 2016 (UTC)

Submission of model release by user in attempt to establish right to give copyright releaseEdit

At en:WP:OTRS ticket:2016012110003934 a user was asked to return a copyright release as described in Commons:Commons:Email_templates#Declaration_of_consent_for_all_inquiries. This is routine.

There was a misunderstanding. They seem to have assumed that because they were the subject of photos, that they were also the copyright holders. See emails 14, 15, and 16 in this chain - three people stated that they modeled for a photo, and seem to have confusion that this gives them the right to make a copyright release. This demonstrates some amount of confusion between a model release and a copyright release.

Thanks to Jameslwoodward for managing this ticket. Blue Rasberry (talk) 21:31, 11 February 2016 (UTC)

I don't know why we received CC licenses from several of the subjects of the images, I certainly did not request them. However, t is not at all uncommon for people to believe that because they are the subject of an image, or one of them, that they have the right to license the use of the image. A significant fraction of all Undeletion requests are those cases.      Jim . . . . Jameslwoodward (talk to me) 10:56, 13 February 2016 (UTC)
Yes, I experienced a lot of that confusion when trying to make a living as a professional photographer. I had to explain to people that in the United States, the photographer automatically owns the copyright on any photos they take unless they explicitly sign those rights away. When I did paid shoots I made it clear in my contracts that I was not doing "work for hire". (We were having a related discussion in a recent Signpost Op-ed on the "monkey selfie"...) Funcrunch (talk) 15:36, 13 February 2016 (UTC)
Jameslwoodward, Bluerasberry, Funcrunch : How should a picture be handled of a politician, taken with his/her camera by a personal assistant, acting on his/her instruction? or for that matter taken by that personal assistant and handed over to the politician ? can the politician be the only person who gives submits a realease to OTRS? --DerekvG Please respond on my talk page (talk) 10:11, 26 February 2016 (UTC)
Sorry for the late reply, which might now be irrelevant; I haven't been monitoring my Meta watchlist as I'm active primarily on the English Wikipedia. So IANAL, but in the USA, if the politician's assistant were taking the photo in the course of performing their regular work duties, then likely their employer would own the copyright to the photo. But this would depend on the work contract the assistant signed. Also, if the politician and their assistant were federal employees, the photo might fall under public domain. Either way, it seems that the politician should be able to authorize their assistant to work on their behalf for matters such as uploading photo releases, but I'm not familiar with the details of the OTRS system in that regard.
It's also important to understand that, at least in the USA, copyright is a separate issue from model releases. Regardless of who takes the photo or who owns the copyright to the photo, if the photo contains one or more human subjects, each of those subjects needs to sign a model release in order for the photo to be used for commercial purposes. For the purposes of displaying the photos on Wikipedia, such a release would not normally be needed (from my understanding), as this would be considered editorial use, though there might be privacy-related exceptions. But if someone were to download the photo from Wikipedia and include it in an advertisement for a product or political campaign in a way that implied that the photo subjects endorsed that product or position, they would need to secure a model release from the subject(s). Normally the photographer secures the releases (as model releases are often required by stock agencies, for example), but legally, it is up to the end user of the photo to do so. Note that this is just a very simplistic explanation; for more exhaustive information on model releases I recommend photographer Dan Heller. Funcrunch (talk) 18:46, 21 March 2016 (UTC)
DerekvG There is no established Wikimedia process for submitting a model release to OTRS. Despite there being no established process, individuals regularly draft their own model releases and submit those to OTRS. At OTRS these releases are processed and categorized as copyright releases, if at all. Sometimes individuals post model releases with files. There is no Wikimedia guideline about what is and is not an acceptable model release, or any Wikimedia discussion about what implications there are to using model releases.
I agree with what Funcrunch says, including endorsing that Dan Heller is the Internet's most popular and only comprehensive discussion of the matter. I can add to his statement "I'm not familiar with the details of the OTRS system in that regard" by saying that there is no consensus in OTRS. There is a history of practice that anyone can post any kind of supplementary data to Commons files so long as the copyright is in order, but that is not the same as having community endorsement that any practice is meaningful. Blue Rasberry (talk) 13:38, 23 March 2016 (UTC)

US Military publishes humanitarian aid photosEdit

 
US solider giving water to a girl

Everything that is published by a US government employee is in the public domain. The US military publishes a lot of photos. Many US military photos are shared in Wikimedia Commons, and many show humanitarian aid.

The picture here of the US soldier giving water to a girl was nominated for deletion for violating Wikimedia Commons policy on photos of identifiable people. In 2007 this photo was granted "featured picture" status, which is the highest recognition given to Commons photos.

The US military publishes lots of photos of US soldiers giving humanitarian aid, so this practice is common enough. Commons has lots of these sorts of pictures in Commons:Category:Humanitarian aid by country. Are such pictures acceptable? Did the girl featured in the photo need to give a model release or be better informed about the photograph's publication and use? Should her parents have been involved? I am not sure. Blue Rasberry (talk) 14:59, 17 February 2016 (UTC)

"An obese man, second from right"Edit

 
Is this a good image to illustrate a health condition?

In February 2016 in en:Obesity in the United Kingdom this "four people" image was added to the article and captioned as "Visitors outside the British Museum, London. An obese man, second from right." User Aw1805 added this image to the article. CGP Grey is the copyright holder of the image and had posted it to flickr in 2006 with the user-added tags, "fat", "obese", and "obesity".

Wikimedia projects currently give unclear guidance on the best practice to use model photographs to illustrate health conditions.

Other news publications had previously used this image to illustrate obesity. This image seems to be used in 20 or more different articles by different publications, all discussing obesity and since 2013.

I suppose it is not unusual to use images in this way but I wonder if Wikipedia might address model rights issues. I see no supporting evidence that the model featured here had a desire to become a model for depicting obesity issues.

Blue Rasberry (talk) 19:44, 19 April 2016 (UTC)

Erotica, model release confirmed privately off-wikiEdit

see "File:Black and White Striped Bondage.jpg" if you like. It is an erotic image of a woman in her underwear.

The photo was nominated for deletion at c:Commons:Deletion requests/File:Black and White Striped Bondage.jpg on the basis of lack of model release. There is some discussion, including of the model's acknowledgement of the camera in many such photos taken over time.

The photographer joins the discussion and says that they had a model release, but they lost it. The fact of the model release having existed is enough evidence in this case for respondents to keep the image. Blue Rasberry (talk) 01:41, 27 October 2016 (UTC)

Nude photos, no model releaseEdit

c:Commons:Deletion requests/File:Violet Sparks 2586.jpg A series of photos of nude models is considered for deletion.

Various users request proof of a model release. The photos are high quality and seem professionally produced, as the models are in various locations and production quality is high. Blue Rasberry (talk) 18:40, 29 November 2016 (UTC)

Randomly selected photo of older person used to illustrate a medical conditionEdit

 
urinary incontinence?

Sometimes people in a demographic which has a higher prevalence of having a medical condition are used to illustrate that medical condition, as English Wikipedia's en:urinary incontinence.

At en:Talk:Urinary_incontinence#Image a discussion said that without more information about the individual and situation, it is not appropriate to use a photo in this way.

Model release did not come up in this case, but rather, this is a discussion of how to show respect to individuals. Blue Rasberry (talk) 13:47, 6 December 2016 (UTC)

Various commentsEdit

I need to migrate all this off this grant page and make a casebook. Blue Rasberry (talk) 13:38, 28 October 2017 (UTC)

Nude model with release featured on Commons main page 8 June 2018Edit

 
from Commons main page

There is no talk of consent that I see.

This has a simple template release form Commons:Template:consent. Blue Rasberry (talk) 14:16, 8 June 2018 (UTC)

Commons:Commons:Help_desk#Why_is_it_OK_to_have_a_picture_of_a_nude_woman_on_the_home_page? Blue Rasberry (talk) 23:42, 8 June 2018 (UTC)

Talk with Wikimedia Foundation peopleEdit

Check with WMF legalEdit

I thought that it might be troublesome to WMF if the community were to make a personality release process through which individuals could volunteer to release personality rights. I interpret the response which I got to my query as nihil obstat, and that the community can do as they like. Blue Rasberry (talk) 16:14, 3 December 2014 (UTC)

At Wikimania 2015 I attended wm2015:Legal_OTRS_Boot_Camp:_Stories_Shared,_Lessons_Learned,_&_Techniques_to_Tackle_Tricky_Troubles and talked with Jrogers (WMF) and Mpaulson (WMF). They said that WMF would not itself draft language for any kind of model consent document, which I expected, and suggested that if anyone wanted to coordinate such a thing then they might request WMF funding for legal review and drafting, which I also expected. At this talk they discussed some media rights which are unrelated to copyright, including personality rights for models. Blue Rasberry (talk) 15:22, 10 September 2015 (UTC)

Checking inEdit

Hey there Bluerasberry and AbhiSuryawanshi. I've been watching this idea for a bit, and wanted to jump in to see how things are. I had a few questions just so I can get a sense of where this idea is at, what your needs and questions are, and what I can do to help you out:

  1. There was some talk of getting something setup at Wikimania in Mexico this year. I suspect with the outstanding questions and concerns, the scrub-wearing party and accompanying photoshoot couldn't begin. But, maybe there were discussions or opportunities to connect with people who might have been able to help with this idea. Did something like that take place?
  2. Abhi, I saw you were interested in managing this project back in 2014. Is that still the case? Lane, what do you see your role being in this project?
  3. I've read over the matter of personality rights, WMF involvement, and the concerns over usage. As far as I see, a release form for personality rights isn't available right now on commons or elsewhere. I think one approach here, if the goal is to craft an appropriate consent form for personality rights for this matter, will require a consultation with a non-WMF lawyer, and quite possibly one in California. The fees associated with this are something you could request funding for, if needed. What I can also do is check in with Legal to see if there someone they could recommend. Let me know if that would be helpful.

There are a lot of details to resolve around implementation at an event and community engagement, but before we get into that, I figure it's good to check in here first and resolve this blocking question around personality rights. Lane, I also want to say I'm really impressed with the amount of legwork you've done in engaging others and pulling up discussions on the issues surrounding personality rights as they relate to this idea. Thanks for getting this idea started. I JethroBT (WMF) (talk) 21:01, 9 October 2015 (UTC)

I JethroBT (WMF) Abhishek and I are collaborating in this project, mostly with support from others in Wikimedia NYC. We both talked about this today at WikiConference USA with others.
Yes - if you can provide copy or precedent or guidance about requesting WMF grant funding for legal research, then it would be very helpful to share either what you find or confirmation of a lack of precedent. I would like to make a request soon, and perhaps at least mention the request in a November 1 filing for 2016 funding for the Wikimedia NYC chapter.
Do you know any particular lawyer with expertise in this field in California? We have a candidate in mind for this whom I could introduce to you, but want the right expertise if someone knows other options.
If you think it would be worthwhile to talk by video then I could say a lot about what is happening that has not been listed here.
Thanks a lot for checking in on this. Blue Rasberry (talk) 22:57, 11 October 2015 (UTC)

Ping WMFEdit

I JethroBT (WMF) at Grants_talk:IdeaLab/Development_of_a_model_release_process_for_photos_and_video#Checking_in and by video call we discussed the idea of this grant. Previously, I was not able to share with you that Fashion Law Institute is the organization that would do the research and draft the language, with their Wikimedian Fashionethics taking the lead in this.

Wikimedia New York City plans to make this proposal live after getting some comments. If you have additional advice about making a WMF grat request for funds to support legal research and template development then I would appreciate it. I am supporting this proposal by communicating between the Fashion Law Institute and Wikimedia New York City, and also by being a stakeholder in the outcome of this. Blue Rasberry (talk) 13:24, 14 December 2015 (UTC)

@Bluerasberry: Hey Lane. Thanks for starting a draft for the project, and it's great to see you and the Fashion Law Institute working together on these issues surrounding copyright, personality rights, and developing an appropriate release form for usage on Wikimedia projects. As we've discussed, there aren't any strict funding prohibitions on requests for funds for legal research / consultation, and course, developing templates have been a standard task for many funded projects. Having read over the draft briefly, I'd say the proposal is off to a good start. One thing I can recommend is a rough timeline. I note that you want to begin to project in January 2016 and finish by the end of 2016, and that you've laid out the main tasks under project activities. It can be helpful for reviewers to have a sense of how long some of these tasks will take (e.g. drafting model release templates and usage guidelines, evaluating test case usage, the review period by WM communities, implementing changes, etc.). KHarold (WMF) and I will also ask Legal to give feedback where they are able. I JethroBT (WMF) (talk) 19:56, 14 December 2015 (UTC)

HousekeepingEdit

"I am HIV+" model release lawsuit in New YorkEdit

In New York a woman modeled for some photos. Her photos were sold, and a caption saying that she had HIV was posted on her photos in public health advertisements.

Obviously there was insufficient communication between the photo agency, the model, and the public health office. As a major media repository, Wikimedia Commons would do well to offer a reasonable amount of advice about how Commons photos can be used. There have been cases where photographs in Commons were removed because somehow, those photos were being used in a way that communicated information which the model for the image did not want associated with their likeness.

I am presenting this as an example of a point about photo modeling which would be useful to clarify, and not because this particular photo or case originated in Commons. An interesting aspect of this case is that it happened in New York with organizations which really should have been expected to have a lot of expertise in preventing miscommunication on points like this. Blue Rasberry (talk) 21:24, 21 December 2015 (UTC)

See, also, Messenger v. Gruner + Jahr, 208 F.3d 122 (2nd Cir., 2000), which involves a very similar issue. Daniel Case (talk) 06:20, 6 January 2016 (UTC)

FLI's position on fashion copyright protection as a possible long-term issueEdit

I have discussed this with Lane in email and he suggested I bring it up here. While I want it to be clear that I totally support this proposal, I do feel the following issue should be given some consideration at this point in the process so it doesn't create issues down the line.

The FLI is headed by Susan Scafidi, a law professor at NYU. I don't know—and it doesn't appear—as if she'd be having anything directly to do with this. But ... she is known primarily as one of the most ardent advocates of extending copyright protection to fashion (see, in addition to our article, this New York Times op-ed).

Now, there are certainly some legitimate arguments for doing that. And I certainly think she'd oppose following the example of US FoP law and holding that photographs of clothing are derivative works of the original á la US FoP law regarding 3-D art (although I also think any extension of copyright to fashion design would have to explicitly say that, as the law presently stands). At the very least, I have no reason to think she'd support that.

But the fact remains that she does support extending copyright to fashion design, which independent of whether it's a good idea or not could be seen by some people within the Wikimedia orbit as at at odds with the goal of promoting free culture. And if this isn't handled carefully, it could become one of those things that blows up on the Foundation later (especially if the issue of whether copyright on fashion would extend to still or moving images of the clothing isn't dealt with by Prof. Scafidi in some way). I would want for the WMF to make sure, if somebody were to try to make an issue out of this (usually, of course, for ulterior motives) that they could say that at the highest levels there was awareness, and hopefully discussion, of this before it was approved. Daniel Case (talk) 19:45, 8 January 2016 (UTC)

Daniel Case This is interesting information. I would love for Wikipedians in New York to be able to attend any presentation by this person.
There are some Wikipedians who oppose expansion of copyright protections, but I think the majority of Wikipedians want more people discussing copyright expansion whatever their opinion may be on the matter. Personally, I take the position that public discussion on copyright issues always benefits the public, and I like that FLI has an outspoken leader. If Fashion Law Institute already has people who take public positions on such issues then I think that is a benefit to Wikimedia's mission.
I hardly know how fashion copyright works. It would be interesting if regardless of the grant, the organization could supply good sources for developing Fashion design copyright. Blue Rasberry (talk) 02:01, 19 January 2016 (UTC)

Precedent on and off Wikimedia projectsEdit

Template:Consent on CommonsEdit

Commons:Template:Consent seems to be the most likely place to start sorting this issue. Blue Rasberry (talk) 16:11, 3 December 2014 (UTC)

Related policies in Wikimedia projectsEdit

Blue Rasberry (talk) 21:30, 20 January 2016 (UTC)

Draft of license tagEdit

Please consider this draft license tag.

  The model featured in this image has agreed to the Fashion Law Institute Model Release version 1.0 with the copyright holder of this photograph. For further information contact the copyright holder.
  • Yes The model has consented to editorial use of this photo.
  • No The model has not consented to any release of personality rights


This is modeled after Creative Commons license tags. Creative Commons licenses are the full legal text. On Wikimedia Commons images, it is standard to apply a license tag which summarizes the most relevant parts of the license for end uses, and for that license tag to link to the full text.

The "Development of a model release process for photos and video" imagines this process:

  1. The photographer asks the model to pose for a photograph
  2. The conversation goes further - the photographer obtains consent for model release from the model
    1. Right now degrees of consent are uncertain.
    2. One degree might be "editorial use", which would be commonly used if a physician took a photo of an identifiable patient to illustrate and discuss a medical condition.
    3. Another degree might be release of "personality rights", which is a standard used in the advertising industry when a model is depicted as endorsing a product or idea
    4. There might be other kinds of model release to articulate
  3. Historically on Wikimedia Commons, photographers have used any kind of model release. There has been no default release offered by Wikimedia projects. This makes it different than Creative Commons licenses, which have some amount of community and legal review as legitimate. There is no deemed legitimate model release for Wikimedia Commons, unless one counts the various releases which are in use without community review.
  4. The photographer and model may choose to use the "Fashion Law Institute Model Release" developed in this project, if they choose. The significance of this model release is that unlike all other options, it would be available for publication in Wikimedia Commons and it would be backed with legal review from an authority in the field.
  5. The photographer retains their original signed copy of the model release. They need not upload it publicly to Wikimedia projects.
  6. The photographer should note what model release they use. If they used the default model release developed in this project, then they could use the above license tag to note this.
  7. Just as Creative Commons licenses have toggles to note "share-alive versus not share-alike", "CC0 versus attribution rights reserved", this license system and tagging system would note which model releases are made, or the degree of the model release.
  8. If there is a problem, queries should be directed to the copyright holder, who would also be the manager of other rights associated with the media.

Blue Rasberry (talk) 18:20, 10 January 2016 (UTC)

Colin You said above that "editorial use" is not the same as "patient release" and also is not the same as "model release", or at least, this is what I understood. I do not have the right technical vocabulary to discuss these things but I hope that you appreciate that I am trying to learn. I still am thinking about what you said. As you said, the license is one thing, and the tag is another. I continue to confirm that WMF and the WM community should not manage licenses, just like it does not manage CC licenses. Wikimedia Commons only digitally makes it easy for people to note with a license tag that they have used a standard license, if they have done so. Just like Commons does not require anyone to use a CC license, but allows a range of homebrew licenses with no relationship to Creative Commons, so it would be the same with model agreements. Still, I think that if there were an approved practice, then that would help establish some minimal expectations. Thanks. Blue Rasberry (talk) 18:29, 10 January 2016 (UTC)

Precedent at Creative CommonsEdit

I met Ryan Merkley from Creative Commons at an event and had a brief email exchange with their general counsel Diane Peters - see Creative Commons staff. The most interesting thing that they gave me was the information that Creative Commons has not developed a model release. They referred me to this -

and especially pointed out this Creative Commons model release.

From one perspective, Joi Ito knows his media and having a model release from him with a CC license is an awesome precedent. From another perspective, if this is the best CC model release that exists then there is room for development in this space. At the very least, this release could be complemented with usage instructions and more likely, it could be developed further if it ever were discussed in the context of use in Wikimedia projects. This is a fine start for conversation. I had seen this before because it is cited online, but I had no idea that it was semi-identified as worth sharing by the developers of the Creative Commons wiki. Blue Rasberry (talk) 01:05, 22 January 2016 (UTC)

I got another message from Diane at Creative Commons. She said that if the conversation developed, she might be interested in giving an opinion or sharing thoughts. From my perspective, this is a kind and encouraging thing to say. I know that lawyers are cautious about saying what they might do with regard to other people's legal concerns. For next steps, what I might propose is that if this is funded and if the lawyers at Fashion Law Institute have a plan after consultation with the Wikimedia community, then before they draft anything, I would introduce them to the lawyers at Creative Commons. My hope would be that they could talk among themselves, and have a private professional conversation that would inform FLI's development of this document. All of this is presumption, but it is a nice idea. Blue Rasberry (talk) 17:26, 25 January 2016 (UTC)

Collection of existing model releasesEdit

This is a working table that could be posted on a project page from this grant space. I am not sure where this should go.

Collection of model releases
Author Release author type license version jargon legal review notes
American Society of Media Photographers Adult's model release professional org nonfree ? yes probably
Getty Images Model Release - English image company nonfree 2015 yes yes translations to 21 languages
Dan Heller Model Releases individual nonfree 2011 yes probably layman usage guide provided
New York Institute of Photography Basic Model Release school nonfree 2010 no yes simplest option
Professional Photographers of America Model Release professional org nonfree ? yes no
Rocket Lawyer Make your Free Model Release legal nonfree 2015? yes yes online form sells model releases
Shutterstock Model Release image company nonfree 2012 yes yes 15 languages
National Science Teachers Association Model Release Form professional org nonfree ? no no unusual for offering simple form for models under age 18
Rutgers University Model Release and HIPAA Authorization Forms school nonfree ? yes yes combined medical information and model release for doctors to use with patients
Joi Ito MODEL RELEASE FOR PHOTOGRAPHY individual CC-By ? no yes the only model release listed on Creative Commons wiki

Blue Rasberry (talk) 12:51, 22 January 2016 (UTC)

As for the place, could go to Wikibooks, framed as how to for photographers. However, the geographical scope needs to be defined. Nemo 20:42, 1 February 2016 (UTC)
Nemo bis If it is on Wikibooks, then Wikimedia Commons contributors will not easily find it. It should have a place on Commons because contributors to Commons already use model releases but there are no clear instructions on the best way to do this.
Some parts of this are geographical and other parts are about ethics in Commons and unrelated to law. The parts of the model release that pertain to ethics have universal scope. Blue Rasberry (talk) 13:58, 2 February 2016 (UTC)

Comments from Commons_talk:Photographs_of_identifiable_peopleEdit

See Commons:Commons_talk:Photographs_of_identifiable_people -

I would be careful to specify privacy rights in particular, and not be vague with "personality rights". Generally, we have always used the term "personality rights" to be synonymous with "publicity rights" -- that is what the commons:personality rights template refers to. However, I see this page is drifting into using it to encompass both (and the en-wiki page does a little, though focuses on publicity rights). Publicity rights are not violated by hosting an image here and do not require a model release. In fact, that type of model release for freely-resuable content would be a very bad idea for most people -- that would be allowing any product company to use that image to promote their product, so the person would lose all control over the context they are used in. I really would not recommend that Commons become a stock image repository of that nature -- we are focused on educational uses, where publicity rights rarely come into play. For images which don't involve people (or are not identifiable), then the simple copyright license is usually enough. For medical images, I assume you are more talking about a release for a specific image for privacy rights, where simply hosting it on Commons can violate such rights without getting the publication OKed. Those would be helpful since those images are generally needed for educational uses -- though again I would try to make sure that such releases do not also encompass publicity rights. Carl Lindberg (talk) 23:26, 21 December 2015 (UTC)

Blue Rasberry (talk) 13:32, 29 January 2016 (UTC)

Parallel and related project - update of Commons:Photographs of identifiable peopleEdit

MichaelMaggs at the Commons village pump said that this proposal could advance the update proposed at Commons:Photographs of identifiable people/Draft 2015-16, and I agree. I added a link to that draft to the "Related policies in Wikimedia projects" above. Michael - I do not suppose that you would care to comment at Grants:PEG/Wikimedia_New_York_City/Development_of_a_model_release_process_for_photos_and_video#Endorsements, would you? Even opposition or a statement of doubt would be useful. Blue Rasberry (talk) 19:43, 29 January 2016 (UTC)

GAC members decisionsEdit

GAC members who support this requestEdit

  1. --DerekvG (talk) 10:21, 26 February 2016 (UTC)

GAC members who support this request with adjustmentsEdit

GAC members who oppose this requestEdit

GAC members who abstain from voting/commentEdit

GAC commentsEdit

Community commentsEdit

Comments from ColinEdit

I've been alerted to this discussion by a friend. I'm trying to take a break from Commons, and time-consuming discussions, so will post my thoughts and then I'll unwatch. Apologies if I'm misunderstood anything, but I'm not going to get involved in a discussion. -- Colin (talk) 22:22, 16 December 2015 (UTC)

A "model release" or "consent form" is a legal document between the subject of the photo and the photographer. Since neither of these are WMF, I suspect they would have a hard time justifying expenditure in drawing up such contracts. Any such document would likely be specific to the country laws concerning these two parties (e.g. English law). Example release documents are already available for free. For example:

http://www.rps.org/~/media/Files/Learning/Resources/The%20RPS%20Model%20Release%20Form.ashx

http://www.istockphoto.com/docs/languages/english/modelrelease.pdf

There are also versions that Medical Journals offer for use with their photos.

The kind of "Model Release" demanded by stock photo agencies is "For any purpose whatsoever". This is far and above what is required for Wikipedia. Indeed, considering that a person in signing such a release is permitting their likeness to be used for widespread commercial (promotional) purposes, it would seem remarkable that anyone would sign such a document if they were not being paid. And also remarkable that any serious photographer would maintain records of these legal contracts unless they were also being paid for the work.

Many images of people on Commons would be classes as "editorial use" by a stock photo agency because they neither require consent to take the photo nor to publish in the limited sphere of news or educational imagery that is typical on Wikipedia. Medical images are different because they are either taken in an area/situation with a "reasonable expectation of privacy" or their use discloses private information, such as a health issue.

Some of the examples given above are of a "stock health photo" (patient visits doctor, married couple look sad, grandparent hugs grandchild, etc) that newspapers or magazines might attach to their article about goodness knows what. The Guardian newspaper runs a regular "agony aunt" column for sexual relationship problems, which is always illustrated by stock photos of beautiful couples who I hope were paid well for "My boyfriend wants me to perform ___" captions. I really don't think we can expect people to sign releases that let them be "Worried about dementia" photos without (a) financial compensation and (b) the kind of legal assurance, insurance, indemnification that a stock photo agency provides. Speaking of which, the latter is really important for companies that use images. Considering that stock photos are mostly very cheaply purchased these days, it would be rather foolish IMO for a company to commercially use an image where some kind of consent/release is required and for which one only has the assurances of amateur volunteers or an organisation that cannot offer legal advice or protection to them.

So I'm sceptical that the "for any purpose" model release for images involving identifiable people is really a priority for WMF. It seems to me that companies wishing to use images for "commercial" purpose would be legally better advised to pay the modest amounts that stock photo companies charge in order to get all the assurances that go with it. The issue of patient photographs / consent remains a problem for Commons/Wikipedia. But it is also complicated by the work contracts that any medical partitioner is working under, and the policies of the medical facility where they work. Lastly, none of us, regardless of what "personality rights" templates we put on the image pages, has the financial and legal ability to do anything to help the photo subject should an image be misused, unlike a major stock photo company who has a financial incentive to protect their assets from abuse. -- Colin (talk) 22:22, 16 December 2015 (UTC)

Colin I recognize the importance of wikibreaks. Enjoy your time away. This is great criticism. Since you are away, I cannot clarify with you exactly what you are asking, so instead of presuming that we can have a conversation, I am going to summarize your concerns as I understand them as a list of questions that I write and answer myself. You obviously understand this proposal deeply because you raise insightful points. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)
Would the model release developed by this proposal ever be required for any upload to Wikimedia Commons?

No, as this project is imagined, the model release would never be required. It would be an additional option which uploaders could apply to photos and video. Its primary use would be in circumstances where uploaders already are choosing to describe model consent. In cases where model consent is already used, and Wikimedia uploaders wish to use a consent process which has some backing of legal review, then the process developed by this project would be available to use if they like. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

Model releases are already available online. Why develop one for use in Wikimedia projects?

Prestigious photography organizations like the Royal Photographic Society make model release documents available online. There are lots of these on the Internet. Problems with these forms include the following:

  • Text of these documents does not have compatible copyright licensing with Wikimedia projects, so they cannot be hosted in Wikimedia projects for discussion or remixing
  • The organizations which present model release documents undoubtedly have good reputations and are authorities. However, there are reasons to doubt the usefulness of bringing existing documents into the Wikimedia community. A major problem with the existing model documents is that they are not uniform and that their text varies significantly depending on which organization presents them. The ideal document for use in Wikipedia would deconstruct the essentials, list them all, and confirm that all necessary information is given. It is hard to determine which existing online model release contains all necessary statements.
  • It would be better to limit the number of model releases established for use in Wikimedia projects. If we advised contributors to bring in any document they chose, then each document used would have different usage guidelines. If we developed our own document internally, and had assurance of the limits of its validity from the beginning, then we could establish community best practices for using it after discussing its limits.

Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

What kind of model release do we need? "Editorial use", like in medical journals, or "for any use whatsoever", as with stock photo agencies?

This is uncertain, but in any case, it would be good to differentiate these uses and give instructions for any sorts of uses which already happen in Wikimedia projects. Already physicians photograph patients' medical conditions and present the images for editorial discussion in Wikipedia articles. This already routinely includes a consent process. It would be nice to document an example of a process which an authority considers fair.

Having a "for any use whatsoever" model release might be useful also. There might also be some other degree model release between these two uses, since the former is conservative and the latter is permissive. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

A "model release" or "consent form" is a legal document between the subject of the photo and the photographer. Why should the Wikimedia Foundation care about this?

The Wikimedia Foundation does not intervene in the editorial process of Wikimedia projects, and the existence of a model release would not change this. The Wikimedia Foundation does support the Wikimedia community's development of their own editorial processes, and in that sense, the Wikimedia Foundation encourages discussion about the extent to which the community's own development of a model release project would be useful. Ultimately the Wikimedia community determines the usefulness of a model release process. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

Why should the Wikimedia community care about developing a model release process?

The most immediate reason is that the Wikimedia community already uses various homebrew model release processes in a haphazard way, and if there were an existing standard process for people to use in the way that they have been using the homemade releases, then having a more established and respectable process would increase the value of the media covered by a model release and increase the value of the volunteer labor time spent contributed to create and curate this kind of media.

Longer term reasons for caring about having a model release process include aligning Wikimedia Commons legal practices with those of established industry and archiving, so that Wikimedia Commons and other archives increase mutual compatibility of licenses. It could also happen that a model release in Wikimedia Commons could establish a social precedent, as there is no identified freely licensed model release in existence anywhere. If the first text is developed in Wikimedia Commons, then that could propagate an instance free text outside of Wikimedia projects and in industry, thus spreading the Wikimedia concept of free content and free culture. It is likely that other photo archives will be influenced by whatever text is used in Wikimedia projects, just as Wikimedia projects are the major influence on public understanding of Creative Commons licenses. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

Suppose that there were a model release process in Wikimedia projects, and Wikimedia Commons had a repository of photos of models who used the release. Even if that had any benefit inside Wikimedia projects, no one in industry would reuse this content, and it would embarrass Wikimedia projects for hosting low value content. To what extent is it conceivable that industry would reuse Wikimedia content with a model release?

It is very interesting to think about reuse of Wikimedia content in the established publishing industry.

First, it should be said that most established publishers do not recognize the legitimacy of Creative Commons licenses, and avoid using Wikimedia Commons media files with Creative Commons licenses. When publishers use content from Wikimedia Commons, in almost all cases this happens through fair use, or by writing to the uploader for special permission, or in violation of the CC license without acknowledging it. Since Creative Commons licenses are not treated with respect and are only vaguely understood by the best funded and most successful media outlets, it is fair to assume that a model release process would have only a fraction of the prominence of CC licenses and not have any hope of being well understood for a long time and only by a niche class of users. New York City, for example, is a world center of publishing and media as of 2015. Wikimedia New York City presents to communications staff at major media organizations in this area. The experience of WM NYC is that staff at these organizations almost never have basic understanding of the premise of free licensing and Wikimedia projects. When large media organizations do use Wikimedia content and acknowledge the license, a preferred option is to pay to license it from a company which has scraped Wikimedia Commons and is offering the free content as a middleman and for a fee. The advantage of this model is that the middleman assumes liability if something goes wrong with any of the free content uploaded to Commons, and the organization which has paid the fee to the middleman worries less about whether the content is correctly uploaded.

Other considerations - one might imagine that when a publisher wants photos with a model release, then they would rather pay more money to get photos that have more legal assurance of being backed with a proper model release. This could be the case, but in the marketplace there is a demand for content with a variety of licenses and at a variety of price points. In considering stock photography for medical publications, such as the common example of a doctor talking to a patient in any context, for small medical organizations like nonprofits this kind of photography is expensive and complicated. Acquiring such photos are frequently a major part of the cost of publishing, and in the United States, routinely cost $10,000 for bland boring photography to illustrate the most mundane health concepts. The discussion about this rarely can rise to public attention, but all community nonprofit organizations that want routine stock photography all have their own tiny crisis when they consider how to get stock photography and how much it costs. Having more discussion in this sector could change the posture that small health publishers have in relation to free content projects like Wikimedia Commons. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

Why would any model agree to a model release? Wikimedia Commons does not pay anyone and it only creates risk.

There are people who will educate themselves on the issue and make an informed decision to agree to a model release and have their likeness shared in Wikimedia Commons.

At the advent of Creative Commons licenses there were many predictions that no content maker would ever agree to release copyright and give their labor away with no financial benefit. Prior to that the same was said about the GNU General Public License and the GNU Free Documentation License, and people continue to contribute under those.

There are already people making model releases in Wikimedia projects. There is no question about whether people will continue to do so, because they will. Instead, it would be better to think about what response is merited and how much attention should be directed at the issue. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

What happens when things go wrong? What happens if the model release is misused, or a model retracts their release, or someone is harmed by using this license when the harm would not have happened were it not for the Wikimedia community presenting a model release process?

The Wikimedia community already has an established precedent of providing no support for content creators whose work is misused after they share it with a Creative Commons license. Likewise, the Creative Commons community has no "copyright police" who enforce proper use of content under license.

Similarly, the burden of enforcement and compliance with any content shared with a model release would be left to anyone who cared to enforce it. That might mean that either the model or the uploader could experience a problem after sharing content, and the Wikimedia community would not have any established system for helping them.

This is significant worry but is not sufficient to be a barrier to developing the model release. One reason for continuing despite the risk is that in usual cases, the existing harms from copyright violation of the content Wikimedia Commons currently shares are likely greater and more common than the potential harms from formalizing a model release process. Since the Wikimedia community does not see fit to address the bigger existing problem, judging that it is not serious enough to merit attention, it is likely that the smaller problems which could happen from a model release project would even less worthy of attention. Other considerations are that there is government legal support for protecting personality rights which is stronger than protecting against copyright violation, so if anyone were harmed for being a model whose content was released in Wikimedia projects, then those people have legal infrastructure outside of Wikimedia Commons to support them.

Also, there are dodgy modeling companies everywhere asking models to make all kinds of dubious releases. It is likely that any process developed within the context of the Wikimedia community would be among the most considerate and favorable releases to the model rather than the photographer. Having a model release originate in Wikimedia projects would increase the protection in the global sector of modeling. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

The concept of a model release should be opposed because its existence would encourage the creep of bureaucracy into community processes where it is neither wanted nor useful. Having this process will create confusion and lead to people asking for model releases where they are not necessary and will unduly burden the Wikimedia Commons community with another rule which is not helpful and is harmful.

First, this model release process is voluntary. If it is used, then it would be an optional supplement to anyone's current upload practices. This is not imagined as a process to complicate anyone's routine, but rather, is being proposed to reduce uncertainty among contributors who already use nonstandard model releases and want a more standardized process for doing so.

Secondly, having a model release process would also give clarity about when a model release does not need to be used. There are recurring conversations on Commons, wasting much time, when images of all sorts are discussed for deletion to protect the people featured therein. Even when a model release is not used, having documentation about when a model release could be used would guide discussion to consider when releases should not be routinely used. Having a clearer understanding of when model releases are not necessary would bring confidence in resolving questions about content on Commons which does feature a person, but which neither needs a model release or deletion. Blue Rasberry (talk) 15:59, 21 December 2015 (UTC)

Ok, so much for the break. I think Carl Lindberg had some important points to make. I'm not going to respond to each question/answer because pretty much none of the questions were asked by me or represent a summary of my concerns. I'll try to address the key mistakes imo about the proposal.
This proposal is confusing because it uses the term "model release" for something that the industry doesn't. The industry uses the term for the contract that allows the photographer to supply the photo to someone who gains commercially by its use (typically an advertisement or promotional literature). The subject's publicity rights would normally prevent this. And the subject is typically paid (money or in kind) for granting this huge waiver of their rights. A model release is not required if the subject cannot be identified at all or if it is being used other purposes that fall under "editorial" such as educational or news. Now the purpose of this grant states use on Wikipedia. There is no use on Wikipedia (other than fund-raising banners) that would require a model release. Nor is such a release required to host on Commons. Indeed, since WMF's mission is "collecting and developing educational content and to disseminate it effectively and globally" it is unlikely that WMF will ever have any need for model releases other than for images it is itself using for promotional purposes. And should it need such releases, perfectly good US contracts are widely available.
In the response about "Why develop one for use in Wikimedia projects" I reject all of the arguments. Legal documents are not developed by the crowd and do not lend themselves to an open wiki. These contracts are likely to need to be country specific so I don't think we can develop fewer. They are also often quite short, perhaps no more than a paragraph and space for the subject's details.
The response about "Editorial use" implies this is a kind of model release. It isn't. It's what you can do with an image if you don't have one. The fact that you think it "uncertain" what we need, tells me this proposal is under researched.
I'm not aware that the community have a variety of "homebrew model release". Indeed I'd be surprised if we hosted many images that have a model release that weren't taken by a professional photographer.
We don't need to align ourselves with the industry. The stock photo industry have a different goal to WMF/Wikipedia/Commons and the difference is exactly the reason they need model releases and we don't.
There's a huge section above about ignorance of CC and paying $10,000 for images. I find much of this hard to believe. If someone wants to pay me $10,000 for some "bland boring photography" then let me know and I'll give up the day job. I'm sorry, but if these concerns are real and have any bearing on a WMF grant proposal, you need to cite some sources.
I'm afraid at the "Also, there are dodgy modeling companies everywhere asking models to make all kinds of dubious releases." you kind of lost me. I feel like I've just read something from the Daily Mail, pleading to emotions rather than based in any facts or research. Sorry, Blue Rasberry, but with this, and the "fashion-law" aspect, and I'm starting to think this proposal is not really on the same planet as Wikipedia/Commons.
The issue of taking images of patients and uploading them to Commons concerns privacy rights, the contract the healthcare professional is working under, and any contract/agreement between the patient and the institution. It is also, not really WMF's concern. Nor can WMF or the community give legal advice. It is, imo, quite unhelpful to confuse a patient consent form with a model release (the subject is not a "model", and the release typically does not allow for promotional use). Perhaps the best approach is for the community to work with professional bodies (e.g. UK General Medical Council) to help them develop advice on taking pictures for Commons. -- Colin (talk) 22:11, 22 December 2015 (UTC)

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Colin Thanks a lot. I feel that you are speaking as a representative of the Wikimedia community, because I feel that so much of what you say are the thoughts and feelings of so many other people in Wikimedia projects. Again, I confirm that all of your comments are relevant, insightful, reasonable, and directly address the issues at hand. I also agree that the questions I answered were the points that I wished to discuss, and were not what you raised, but in a text conversation this is what I was able to provide. I hope that you and others will continue to forgive my inability to directly address all of your points because this is a complicated discussion and it is not easy for me to isolate and directly address the points you raise in the context of a conversation. If you asked any narrow questions then I would be just as narrow in answering them, but as things are, I will continue to discuss.

Here are some weird points which we are discussing here, which are peculiar to Wikipedia and have little context outside of Wikipedia. I want to list some of these to frame the fuzzy nature of the conversation we are having as I perceive it.

  • There is a merging and conflating of concepts which would not generally be combined, including personality rights, privacy rights, and model release.
  • There is odd mix of ideology among various professional sectors in photography, particularly modeling for advertising and modeling for medical scholarship. In no context other than Wikimedia projects would anyone conceive developing a uniform process to govern practices in these sectors.
  • There is a presumption that legal practices can be made uniform and simplified to a layman set of rules which could be quickly read, applied in Wikimedia projects, and used to guide legal releationships outside Wikimedia projects
  • There are technical terms being used here which are not well defined either here or in Wikipedia articles. Even when terms are defined, participants in this conversation (especially me) might not be using them correctly in the legal sense.
  • The Wikimedia community is particularly cavalier about applying free content licenses to content, especially Creative Commons copyright licenses, when almost no other diverse community anywhere else is comfortable discussing the idea of applying release licenses to media. Some of the permissive culture about discussing copyright creates an environment which makes people more willing to participate in discussions about other transgressive and unorthodox licenses. All conversations about licensing are strange in that lawyers, media professionals, and digital communications professions might be imagined to be the majority thoughtleaders in this space, when in fact, people in these professions have little representation in the development of free license culture.

With those perspectives in mind, again, I am going to rephrase your questions in my own words as I interpret them. I neither mean to avoid your points, nor do I mean to say that I believe your points are exactly as I wrote them, but rather, I am trying to respond to what I believe is the focus of your concern as I understand it now. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

The Wikimedia community does not already have homebrew model releases. Because of this, there is no need to create a standard one.

This is incorrect. Some Wikimedia contributors are creating their own model releases. These are described elsewhere in the documentation for this proposal, but here they are summarized again -

Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

A model release is not required if the subject cannot be identified at all or if it is being used other purposes that fall under "editorial" such as educational or news.

This is unsure. Regardless, model releases are demanded in Wikimedia projects for all kinds of reasons.

Some of the value in having a model release process in Wikimedia projects would be clarifying when the process need not be used. Right now, there is not documentation in Wikimedia projects about when to use a model release, and because of that absence, there is also not clear documentation on when a model release is not required. For lack of that clarification, there is regular confusion and discussion about the need for model releases. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

"There is no use on Wikipedia (other than fund-raising banners) that would require a model release"

This is not certain. This issue arises repeatedly and has for years. There is no clear way to resolve disagreement about this when the issue arises.

Here are some cases when a model release is requested - whether legitimate or not - for Wikipedia.

  • medical model presented - the premise is that persons who could be identified, even in unlikely ways like from body shape without showing their faces, should at times give a model release to be presented in a Wikipedia article on medical conditions
  • political activism - it happens sometimes, particularly in the context of public LGBT pride parades or marches - that certain people should only be shown in Wikimedia projects if they agree to be featured. The recurring problem is that someone is photographed in public doing LGBT activism at a pride march, and this happens in a country with discrimination, then when the person is featured in Wikimedia projects, they claim that their photo should be removed because their likeness is being used in a way that communicates their personal support for an illegal ideology. They argue that for lack of model release, their photo must be deleted from Commons. The standard Commons arguments are to keep the image because it was legally acquired, not intentionally or explicitly communicating anything other than documentation of the event, and that the image copyright release is in order.
  • routine photographs of identifiable people in public places - in some countries this is allowed and in some it is not, but sometimes, even models for photographs who seem to be agreeing to being photographed have their images challenged in Wikimedia projects
  • Wikimedia community members at Wikimedia events - Wikimedia community events, including conferences, always start discussions about who can be photographed in public, and are a special common case of "public place" photography.

Also, concerning fund-raising banners, see the comment about the Wikimedia Foundation below. This is another space which would benefit from community discussion on best practices. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

Wikimedia Commons should not be a repository for stock photography of models

This is uncertain.

It already is a repository for stock photography of models to a certain extent. Wikimedia Commons is definitely a repository for stock photography for objects, places, and things other than models.

It would be worthwhile to discuss the extent to which Wikimedia Commons could be a repository for images and videos of models of all kinds. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

No proof is provided that any great demand exists for stock photography of models. Proof that some demand exists should be a prerequisite for discussing whether Wikimedia Commons should host pictures which are tagged with a model release.

I know of no public published documentation of how health communication organizations work with model photography, but I work in this sector, and can give personal anecdotes. Since 2007, 2-3 times year, I have participated in decisions about health communication for advertisements to the general public. These decisions typically involved selecting about 5 photos of people including their faces and putting those photos on advertisements which said something like "Join this medical research project" or "talk to your doctor about a health condition". I have seen these decisions be made either by hiring models and photographers for new photos and by purchasing photos held by organizations which take general photographs which could be used for any advertising purpose. Typically, 3-5 models are considered for every model needed. Photographs of all models are taken. The organization or person providing photos may be paid 500-2000 for each set of model's photographs, depending on a lot of factors, but all of this is assuming community-level advertising and not a large audience for these ads. Photographs might be purchased as a set then a model chosen, or perhaps they are viewed first then only the chosen model's photographs are used while the others are archived without use. In the end when 1 photograph is used typically 10-100 photographs are purchased or licensed.

Costs for this process include paying the photographer, model, photographer's company or employer (which is the source of legal legitimacy - free agents are rarely able to enter these agreements) then on the health publisher's side there is legal council, art development, community focus groups, expert staff oversight, then finally executive approval. Because of the investment in the supporting publication, the legal review of the art and the reputation of the photographer must be professional to the point of not being a concern. For this reason, USD $10,000 for the art is a fair assumption for a lot of cases, even for community health communication. If a photographer is paid 10k for photos, perhaps 4k of that covers the photography work and model payments, and the rest of that is overhead for having the long-term investment in infrastructure and professional standing to be able to interface with the medical industry and lawyers. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

The Wikimedia Foundation itself has no need for model releases.

This is true, but the Wikimedia Foundation supports the needs of the Wikimedia community, so for the sake of the community it is a stakeholder in the process. Regarding this grant request, the funding for research is requested to address community needs and not to do a direct favor for the Wikimedia Foundation itself.

In December 2015 there was discussion in Wikimedia-l, a community mailing list, about an image used in the Wikimedia Foundation's own Wikimedia fundraising campaign. A cup of coffee was shown, and it seemed that the image was non-free. In the Wikimedia community, there is an overwhelming favoritism for using free licenses in Wikimedia projects, and the use of a non-free image of a cup of coffee was imagined to be a significant disconnect in values between the Wikimedia community and the Wikimedia Foundation. Anecdotally, this incident is supporting evidence that the Wikimedia community has needs which differ from the priorities of the Wikimedia Foundation. The cup of coffee discussion is a higher profile example of this than the model release discussion here, but does demonstrate a lively culture of negotiation among the powerbrokers controlling Wikimedia community assets. There is continual community demand for the Wikimedia Foundation to align its values with those of the Wikimedia community, and the Wikimedia Foundation is sometimes limited in the extent to which it can guide the thought of the larger community of volunteers. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

"Perhaps the best approach is for the community to work with professional bodies (e.g. UK General Medical Council) to help them develop advice on taking pictures for Commons."

In this proposal, funding is requested for the Fashion Law Institute to develop advice for the Wikimedia community in providing photos to Commons. I am asserting that this is the right organization, with the right expertise, and at the right price point to do research at this time.

At the requested funding price point, if an organization like the UK General Medical Council could be persuaded to make the same offer as the Fashion Law Institute, then I would support that organization receiving equal grant funding or copypasting this same grant request for their own funding request if they would commit to do the same work. Getting second or third opinions from other organizations would be useful, and if multiple expert organizations all made the same offer and independently developed their own guidelines and provided them to the Commons community, then that would be useful, insightful, and inexpensive to fund considering the probable impact.

In the context of Wikilegal/Copyright of X-Ray Images several health authorities were contacted, including professional societies, medical publishers, and government organizations. None of them showed interest in a Wikimedia community partnership, which is unfortunate for them because Wikipedia is the most popular source of information in their field of expertise. Because of barriers in engaging medical authorities, I propose the alternative of consulting lawyers in fashion, which is a fair alternative and likely more sympathetic to the models themselves in comparison to the medical industry which is a slower, more bureaucratic, and less communicative system that has less contact with creative professionals in media and art. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

"Legal documents are not developed by the crowd and do not lend themselves to an open wiki."

They are developed by the crowd, and they do work well in an open wiki.

Creative Commons licenses themselves are crowd developed. They are more a product of the Wikimedia community than they are of Creative Commons. Most of the discussion of application of CC licenses, probably 95%+, happens in Wikimedia projects. They might have been founded in the minds of experts but the value of the licenses is mostly invested in their use and acceptance in the public, and the best informed Creative Commons licenses users are mostly Wikimedia contributors. Wikimedia projects continually generate informed CC license users at a pace exceeding any other project.

Besides CC licenses, Wikimedia projects allow users to create all kinds of crazy homebrew copyright licenses, just so long as they seem to be compatible with Creative Commons and GFDL. See Commons:Commons:Village_pump/Archive/2015/08#What_to_do_with_images_with_home-brewed_licenses for an overview on the crowd-developed copyright licenses currently allowed and used in Wikimedia Commons.

Contributors to Commons are also currently using crowd-developed model releases. Wiki seems to independently inspire various stakeholders to do this.

I agree that it is not ideal that legal documents originate from the crowd, or get development from the crowd. I am developing this proposal because I would like to include legal expertise in the development of the processes which the Wikimedia community uses. I have respect for the Fashion Law Institute as a legal authority and thoughtleader which is fit to provide a legal document for model release which would be appropriate for the Wikimedia community to use and develop with regular consultation with other authorities as they can be recruited to give their perspectives. Perspectives that I would like to continually recruit to give opinions are expertise in law, advertising, medicine, art, and publishing. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

It is, imo, quite unhelpful to confuse a patient consent form with a model release (the subject is not a "model", and the release typically does not allow for promotional use)

I am unsure.

I recognize the common characteristics in these processes:

  • Consent is often used for both
  • Both involved photography of a person
  • The images get uploaded to Commons
  • Both processes are described as "Can I take your picture and upload it to Wikipedia?", when that is an imprecise way of explaining everything that actually happens

I want an expert from an expert organization to give their opinion about what processes should be in place for use on Commons. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

I'm afraid at the "Also, there are dodgy modeling companies everywhere asking models to make all kinds of dubious releases." you kind of lost me. I feel like I've just read something from the Daily Mail, pleading to emotions rather than based in any facts or research.

I failed to communicate clearly. I still might be unable to communicate clearly, but as an demonstration of my perspective, I am comfortable challenging the validity of the expertise and authority of the Royal Photographic Society whose model release you praised as a pattern to follow.

When I said "there are dodgy modeling companies everywhere asking models to make all kinds of dubious releases", I meant among other things that people following the guidelines of the RPS were engaged in dubious practices and that the Wikimedia community could do better. This file you shared, is, in my opinion, almost bunk. Could you say more about why you like this document? Here are things that I do not like about it:

  • It seems like quasi-legal jargon yet denies being legally sound
  • It is six pages long without a human readable summary
  • It seems to be available for use between photographers and models, but it would not be reasonable to assume that either the photographer or the model would find this sort of long and oddly worded agreement to be their preferred way to communicate
  • Uses technical language which I think may be industry jargon, but does not define those terms
  • I am unable to find a related usage guide for this document
  • There seems to be no designated community forum for discussing the use of this document, and without being open to criticism in a public forum, it is difficult for me to imagine that this document is well-polished.

Here are some characteristics of a legal release that I would like, and which I would consider to be practices of an organization which is not dodgy or doing anything dubious -

  • Written to be understood by the people who would use the form
  • Appropriate length for typical use conditions
  • Usage documentation published elsewhere in an accessible place
  • Clearly defines forum in which the community of users can give comment about the document or ask questions about its use
  • I do not expect anyone to promise that the document is legally valid in all kinds of circumstances, but I would like a solid opinion from an authority that the author backs what they wrote. Creative Commons does this for their copyright licenses. Traditional organizations, including the RPS but almost all of the others, have a habit of providing the text without even clearly saying that their expertise backs the words they publish.
  • Defines jargon terms used, or links to definitions and discussion of the same
  • Published in an easily accessible format
  • Encourages development of the document and process based on user feedback

I hope that as I say this, that reduces the emotional aspect of what I communicated, and makes my concerns more objective. Blue Rasberry (talk) 19:12, 23 December 2015 (UTC)

Where is the normal sectioning for community comment?Edit

Also, I note that the start-date passed three weeks ago. There must be special justification for retrospective funding. Tony (talk) 10:00, 22 January 2016 (UTC)

I posted a comment section at the bottom. I am not sure who normally posts this on proposals.
Funds have not yet been consumed and the legal team is not hired. Paid work for the project begins when the grant is funded. I will post a schedule on the grants page. Thanks. Blue Rasberry (talk) 13:06, 22 January 2016 (UTC)
Thank you for posting the sections for community comments, Bluerasberry, and for providing background information and examples here on the talk page. The Grants Advisory Committee has been notified that this request is open for comments. I will send an update to the members of the GAC tomorrow, and will ask those who have the most experience with or knowledge of the issues presented in this request to post comments. It might be a good idea for you to post a reminder to relevant community forums requesting input. --KHarold (WMF) (talk) 00:37, 29 January 2016 (UTC)
Meh, I feel totally inadequate to the task of reviewing this application. Tony (talk) 13:57, 1 February 2016 (UTC)

Comments from Ste.canevaEdit

Ste.caneva I copied your questions here because I wanted to respond, and the talk page is the usual place for that.

  1. The expertise field of the leading institution is fashion. I wonder if experts in the medical sector (which is one of the fields considered in the proposal) should be added or whether the legal framework is the same.
    I have not been able to find anyone in medicine who wants to talk about this except Wikipedians in medicine. My perspective is that probably the fashion industry knows much more about this than the medical industry. When medical journals publish patient photos, they expect that the doctor photographer has gotten consent, but they have no standards for what consent is. This is a much lower standard than the in the fashion, advertising, and marketing sectors, which always have thorough model releases. I think the reason why the medical industry does not have standards is because before Wikipedia, no one was publishing medical photos in any place where the public could see them.
  2. As pointed out in the proposal, there is indeed no certainty about the way the models will be kept up-to-date after the release. Maybe there should be some reflections on this point. A possible follow-up could be envisaged, such as yearly interactions between the leading organisation and the local wikimedia community.
    Keeping up to date depends on the usefulness of the release and the relationship. It seems likely to me that Fashion Law Institute would like a long term relationship with the Wikipedia community. One of their lawyers is a member of Wikimedia New York City and comes to events. This is a project close to their field. They have supported local Wikimedians by helping to arrange Wikipedia events at local fashion schools. We have not been able to manage it yet, but they also are helping us plan to get Wiki-photographers into local fashion shows. For the amount of money requested and because of the newness of the relationship, it is not possible right now for them to commit beyond a year. However, if it seems useful and appreciated, then because this organization has already been around for several years it seems possible to be that they would try to have a longer relationship including things like document updates.
  3. In order to foster the dissemination of the models and their translation to other legal codes, it might be interesting to consider establishing a contact with the organisations previously taking part in Europeana Fashion. In addition to actively participating with the Wikimedia community in the involved countries, this Europeana partner project was one of the most active concerning the legal framework for the use of fashion-related photos and videos
    Wittylama sorry I neglected to contact you. Ste.caneva just reminded me. We in New York have a project proposal to create a model release on Wikipedia. Could I have a conversation by voice or video sometime with you about this, because of you working with Europeana? Thanks.
Thanks Ste.caneva. Blue Rasberry (talk) 11:36, 27 January 2016 (UTC)

Re: will undoubtedly donate many more hoursEdit

Sounds ridiculous. Instead of promising "undoubtedly many more hours", just define a realistic amount of hours and reduce the rate. Did you consider using a real case as guinea pig, with a mid sized fashion company? Nemo 21:57, 31 January 2016 (UTC)

Nemo bis Yes it was ridiculous so I removed it. I then doubled the hours and halved the rate. It is hard to predict legal research - lawyers there bill at $250/hour but they also appoint lower-paid researchers and assistants. I am not sure of the breakdown but the hour commitment was what they suggested, and the same idea is better presented by saying more hours at a lower rate.
The guinea pigs will be the clients of Fashion Law Institute. They already are in the business of distributing resources related to fashion law. They will distribute the document to their existing educational and business partners. It is difficult for me to predict what kind of metrics they will be able to collect in return, because I do not know the extent to which this industry reports metrics on such things, but it is in the interest of FLI to distribute this document and report its uptake. I expect that their goal is to make this the most used model release document in the world. Considering that there are no standards for this kind of text (just as CC standardized the concept of a copyright release) it is not impossible to think that this one also can have uptake. It is free and legally backed - that is more than any other document on the market.
From the Wikimedia community side, one thing I can commit to is to present the license in class presentations at en:Fashion Institute of Technology. Already we (the New York Wikimedia chapter) present with some regularity (1-2 year) to classes there. Blue Rasberry (talk) 23:02, 31 January 2016 (UTC)

WMF commentsEdit

Hi Bluerasberry, thank you for the effort you have invested in writing this proposal and in responding to concerns and questions that have been raised on this discussion page and on other forums. Below is a summary of the some of the points that have been raised in the request and the discussion.
If a model release process for media is created based on the input of legal experts and Wikimedia communities:

  • it would most likely be used by Commons contributors who are already inclined to use some kind of model release documentation
  • it may lead to an increase in donations of images from medical professionals who have concerns about patient privacy
  • it could reduce the amount of discussion or debate around removing media, which would help Commons contributors, administrators and OTRS volunteers save time
  • it would need to take into account laws that govern image use in Europe

Of course, these bullet points do not cover all of the benefits, risks and concerns that have been discussed. We have focused on points that will help us get a better understanding of the viability of the project and the short term outcomes that we might see from the project, for example, how many people are likely to use a model release process? How much volunteer time could be saved if the process is integrated on Commons?

Jacob Rogers from the WMF legal team has reviewed the proposal and notes that users seeking legal advice of this nature would have a very low legal risk. It would be helpful to get input from users who are active on Commons or OTRS to assess how this project would affect their work. Pinging MichaelMaggs, Clindberg, Krd, User:Rjd0060 and Wittylama to request input or suggestions of other folks who can help assess this request.

Thank you to everyone who has contributed to this discussion so far - we hope that this summary makes it easier for additional users to share their questions, concerns and points of view. Cheers, --KHarold (WMF) (talk) 23:12, 3 February 2016 (UTC)

I've added my endorsement on the main page. --MichaelMaggs (talk) 15:15, 5 February 2016 (UTC)

Funding decisionEdit

Hi Bluerasberry, clearly you have put a lot of thought into this project and have engaged in several valuable discussions on the the issues surrounding images of people on Commons. We understand that your initial goal was to improve the information available to people contributing and evaluating medical images with the hope that this would increase the number of medical images available on Commons. Is there a way that you can test this hypothesis without seeking legal advice? For instance, you might consider surveying people who have medical images that they either have uploaded or have considered uploading to Commons to find out what challenges, concerns or points of confusion have been problematic. This would help others understand the potential value of funding a project to resolve the issue, as well as important insights into what actually needs to be done to achieve your goal.

The lack of information about the potential impact of this project was one of several concerns:

  • We do not see that this project has significant support from the Commons community, either in endorsements on the grant request or in the notifications that were posted in multiple venues. This is a concern because an important element of the proposal is that Commons admins engage in the review of the policy and agree to adopt it. In order to fund this project, we would need to see that there is broad support from other volunteers who will help this project succeed.
  • We have concerns about the sustainability of the product of this project. What would the long term costs be to maintain accurate templates, policies and processes after the grant has ended? Is there a group of volunteers who will take responsibility for monitoring the templates and making updates on a regular basis?
  • The scope of this project is very large. It would be difficult to adapt releases and templates to fit the laws in various jurisdictions, and may create even more confusion for users who are uploading images.

Therefore, the Wikimedia Foundation would not fund this initiative as it stands. We encourage you to test your hypothesis that a personality release process would encourage medical image donation, gather more support from the Commons community, develop a plan to maintain templates/processes, and propose solutions to adapt the process to suit multiple jurisdictions first, and to possibly seek funding for this work when you have done so, if still relevant. Thank you again for all of the hard work you have put into this proposal, the discussions will undoubtedly be valuable to future work in this area. --KHarold (WMF) (talk) 19:03, 18 March 2016 (UTC)

KHarold (WMF) Thanks - acknowledged. Without the support of the Commons community it would not be reasonable for the WMF to fund this grant, and support from the Commons community does not exist.
I remain interested in the topic and will think about other options for doing something useful in this space. Blue Rasberry (talk) 13:45, 23 March 2016 (UTC)

ConcernsEdit

First, I don't understand why endorsements of this grant should be posted on the Grants page while concerns are relegated here. It seems to me that an honest discussion will post pros and cons in the same place. Therefore, I post here under protest.

I think that this discussion makes a significant error in talking about a "model release". I don't think that more than a tiny fraction of our image subjects would be willing to sign a typical blanket model release such as those sometimes used by professional models. Allowing one's image to be used for any purpose -- to endorse or advertise any product or service -- is very unlikely unless the subject is very naive.

What we need here is a privacy release -- allowing limited use on Commons and elsewhere of an image taken in a place where the subject has a reasonable expectation of privacy or where local law requires such consent for any image (e.g. France). This would not allow use in advertising, but only in editorial and educational material. Note the distinction here is not between commercial use and non-commercial use -- use in a textbook is a commercial use, but would be permitted by the privacy release I am suggesting. An example of the sort of image I mean and its use is File:Patient receiving dialysis 03.jpg.      Jim . . . . Jameslwoodward (talk to me) 15:28, 17 February 2016 (UTC)

Jameslwoodward Thanks.
on the matter of you protest The GAC process and the GAC revieuwers would expect to find comments here on the discussion page, endorsements ( that come from other people, affilliates etc should be limited to a signature line at the bottom without comments. This way of working is not to clutter the grant request with questions, and questions on this discussion page might prompt the grantee to modify the grant request. Substantial changes might cause GAC reviewers to alter their vote. Hope this explains, I wish to state that your protest is duly noted and that I acknowledge it. --DerekvG (talk) 10:34, 26 February 2016 (UTC)
I posted a notice to check criticism. I did not design this review process and I agree - it ought to be developed.
I do not have the vocabulary to distinguish between the kinds of releases, but yes, I am mostly supporting this proposal to make the upload of patient images more stable. That might be a "privacy release", "model release", "editorial release", or a "release of some personality rights". Whatever it is called, I would like for someone to define the rights which can be released, develop a process for releasing any or all of them, and giving guidance on when a release is and is not necessary. Thanks for sharing the patient image. That is the most common case to address. Blue Rasberry (talk) 15:36, 17 February 2016 (UTC)
I'm not a lawyer, but we could enlist one. I think it ought to say something like this:
"Privacy Release
I affirm that I am (choose one)[the person or one of the persons][the parent or guardian of the minor child or one of the persons] pictured in the subject image. I hereby irrevocably release certain privacy rights which [I][the child] may or may not have because of the action of law or custom and agree that the image may be used for any purpose, including commercial use and derivative works, by anyone anywhere except that it may not be used to advertise or promote a product or service or suggest in any way endorsement of a product or service. I acknowledge that I cannot withdraw this agreement, and that the image may or may not be kept permanently on a Wikimedia project."
     Jim . . . . Jameslwoodward (talk to me) 23:25, 19 February 2016 (UTC)
Jameslwoodward Yes this is the proposal. I am requesting funding for a legal organization to approve a text like this based on legal and industry precedent. There are similar texts collected above. The organization that would do this is called "Fashion Law Institute" and are noted on the main page. I would appreciate your support on the front page here or would answer any further questions you have. I know the proposal is complicated and I would also talk with you or anyone else by phone if that made things easier. Blue Rasberry (talk) 14:14, 20 February 2016 (UTC)

Concerns; also opposed for now.Edit

Opposed for now because

  1. It's unclear what the deliverables are. Who will be working on this? I see faculty members are mentioned, but who will be involved and has agreed to the (newly revised from $250/hr) $125/hr rate besides Jeff Trexler? Susan Scafidi, Angela Byun, Stanley G. Sherwood, Ali Grace Marquart, Doreen Small and Jeff Trexler? Has any thought gone into how many model release templates will be produced, and what would differentiate them? 2? 50?
  2. What deliverables have been agreed to? I'd like to hear that at least one version will be (US-focused and) minimize the rights released to those needed to ensure that a typical image isn't deleted for not being compatible with the core goal of being usable for the encyclopedias. I am concerned when I hear that "their goal is to make this the most used model release document in the world" in the fashion industry. I'd like to hear that none will releases for any purpose whatsoever; we should leave that to others to create. Addressed?
    In other words:
    <sarcasm>Advertisers and photographers need to be protected from models. The model release templates need to make it clear that the people who have been given the opportunity to model are giving up absolutely all rights to sue any users of the images, because we are exclusively a repository of completely free content with no restrictions whatsoever and so should ensure that it can be used as broadly as a model release can make possible.</sarcasm>
  3. It's described as an issue with existing agreements that "There is no way to verify that the model agreed to anything." It should be clear whether the plan is to abandon or continue with OTRS as the customary (my conclusion based on the evidence and discussions above) repository for releases, and what OTRS folks have to say about it.
  4. I think it's unrealistic to expect attorneys to advise us of when model releases from identifiable models are not necessary if that's not an identified deliverable. Because attorneys that have the guts to say such things are very few and far between. If the deliverable was defined to guidance on when a release from identifiable models is not necessary, I'd be pleased.
--Elvey (talk) 00:16, 26 February 2016 (UTC)

QEdit

  • PLOS has a nice release form for a license more open than ours. Why do we need another one? Will read further to see if this is answered.
  • The rest of the publishing industry manages. Why do we not just follow what they are doing? \
  • Another concern is that people often use current legal positions to try to justify deletion of historical images stating that 20 years ago people did not get the "correct" consent and therefore we cannot use the images. I have seen this argument for removing images from the CDC.
  • The law is often created by court cases. If no court cases on a particular topic have occurred than from my understanding the law is more or less not clear. This is the position with diagnostic X-rays, while the US Copyright office says they are not copyrightable this has not been tested. In this case we should just follow normal practice and not come up with a new and higher standard above the rest of those publishing this sort of content. Doc James (talk · contribs · email) 10:36, 30 April 2016 (UTC)
Return to "PEG/Wikimedia New York City/Development of a model release process for photos and video" page.