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Let's say a user of my website posted a picture. I know that as long as my website and the picture satisfies the conditions of the DMCA, I have a safe harbor against copyright claims by the individual who owns the rights to the image.

But if it's a picture of a person, and the person never signed a model release form, do they have a claim against me for infringing their Rights of Publicity?

Basically what I'm asking is: in the DMCA, are copyright and right-of-publicity issues essentially treated as the same thing?

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  • FYI, the statutory answer, if any, is probably in Title II of the DMCA (a.k.a. OCILLA, a.k.a. DMCA 512).
    – feetwet ♦
    Commented Aug 15, 2015 at 15:45
  • @feetwet I've read that a few times, but as far as I can tell, it never mentions model releases.
    – Jeff Caros
    Commented Aug 15, 2015 at 18:08
  • Yeah, somebody will probably have to find case law that addresses the question of whether the "right of publicity" is distinct under the laws of infringement from copyright.
    – feetwet ♦
    Commented Aug 15, 2015 at 19:06

2 Answers 2

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Copyright vests in the photographer that takes the photograph, or their employer. If the subject of a photograph does not own copyright over the photograph, then they can't bring a claim of copyright infringement against you.

The DMCA safe harbors only protect you against copyright infringement claims. Further, personality rights are recognised at state level through statute or common law.

On the matter of whether copyright and right of publicity are treated as the same, the seventh circuit has said in Toney v. L'OREAL USA, INC., 406 F. 3d 905 at [911]:

... the bottom line is that Toney's claim under the Illinois right of publicity statute is not preempted by federal copyright law.

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If a photographer X takes a photograph of me, then X is the copyright holder. But since I as the person who was photographed have certain rights, X having the copyright is not enough for X being allowed to publish it.

Now X puts up the photograph on your website, and I don't like it. The DMCA doesn't actually give me any legal way to complain about this. I would have to declare under penalty of perjury that I am or that I represent the copyright holder. I do neither.

Since the DMCA doesn't give me any legal way to send you a takedown notice, you can't act on one and the DMCA can't give you any legal protection.

On the other hand, if I sent you a nice letter explaining the situation and asked you politely to remove the picture, and if you removed the picture, then I would have got the same result that the DMCA wants to achieve for copyright holders. I would be much less likely to take you to court. And if I took the photographer to court and included you in the court case, a judge would likely recognise that your prompt action reduced any damages and hold that in your favour to some degree.

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  • Why the down vote?
    – Jeff Caros
    Commented Jan 6, 2016 at 13:22

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