Is there also a fair use for portrait?

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Halie0201
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Is there also a fair use for portrait?

Post by Halie0201 » Fri Jul 29, 2016 5:31 pm

I know that there is "fair use" in copyright. If I use the small quantity of copyrighted material for some educational, criticism purposes, it's possible under the fair use. But is there a fair use for portrait? If there is a recognizable face in the material I use under the "fair use", do I need get the additional permission from the person appeared in the material? For example, the actor in the film clips or people in a documentary. I know that usually the photographer will get model releases from the models. So do I need get additional permission from these models? Or as long as the way of using the material is a fair use, I don't need get separate permission from people in the video?

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AndyJ
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Post by AndyJ » Fri Jul 29, 2016 9:15 pm

Hi Halie,

If you are talking about copyright within the UK, then it is better to use the term fair dealing because 'fair use' is an American doctrine which is somewhat wider than fair dealing. Also, the term fair dealing only applies to a smal group of exceptions to copyright. Exceptions applying to visual impairment, libraries and education for instance are not classed as fair dealing.

And while you are right that there is a fair dealing exception for the purpose of criticism, it is important to note that the exceptions for education are quite narrow and mainly apply to educational establishments such as schools and colleges which are recognised by the Department for Education, not education more generally.

Then turning to the specific point of your question, neither fair use nor fair dealing actually apply to the subject of a copyright work such as a person depicted in a photograph, only to the way in which a copyright work itself may be used. So if you are talking about a portrait of someone created by someone else, then the fair dealing rules apply irrespective of the subject matter. You don't need the additional permission of the person portrayed in the picture.

However if you are the creator of the portrait (and thus you are the copyright owner) you don't need the permission of the subject of the portrait in order to exploit your work, with one exception. This exception applies where a person has commissioned you to take the portrait for private and domestic purposes, when they are entitled not to have the portrait published without their permission. The sort of use which might be considered to be for private purposes includes some wedding photographs, or photographs of children taken in the family home etc.

Your mention of model releases brings us to a completely different issue, which is to do with so-called personality rights. In a number of States in the USA there are laws which protect an individual's personality rights. These are sometimes referred to as the Right of Publicity laws and where they apply (ie within the States where the such laws are in force) you do need the permission of a human subject of any photograph etc before publishing it, unless its use falls within certain permitted categories such as editorial use. However we do not have similar laws in the UK (although the Channel Island of Guernsey does), so you don't need to worry about that. The main reason for model releases (apart from the need to comply with US law in certain states) is to avoid being sued for defamation or passing off. Defamation is highly unlikely but could just occur if an advertiser used the image of a person to promote a product which cast the individual in a bad light (say, the picture of a Muslim appearing to endorse an alcoholic drink, or a person with perfect teeth being used in an advert for dentures etc). In these cases it is usually advertising agencies which require model releases. Passing off has been successfully claimed by celebrities whose image has been used in a way which suggests they endorse a product when it is not the case. The most well-known example of this involved an advert for a radio station featuring the racing driver Eddie Irvine (Irvine v TalkSport ltd). It is important to stress that personality rights and the right to privacy, are entirely separate from copyright.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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