Tuesday, January 23, 2007

Privacy & Publicity

In October, I posted two articles (here & here) that I had written for WNYLRC Watch on copyright. This article below was just published in the Jan./Feb. 2007 issue of WNYLRC Watch and compliments the other two articles.

The September/October and November/December issues of WNYRLC Watch contained articles about copyright and copyright clearance in regards to a digitization program. This article is focused on two remaining concerns that are frequently overlooked: privacy and publicity. While copyright gives the creator the right to reproduce the work, prepare derivatives, distribute copies, perform the work publicly and as well as display the work publicly, it is the rights of privacy and publicity that force us to stop and consider our moral responsibilities.

Both privacy and publicity are protected by state, common or statutory law. In a broader sense, the roots of the right of privacy are found in the U.S. Constitution, which has been interpreted to give us the “right to be left alone.” There are four types of invasion of privacy: intrusion, appropriation of name or likeness, unreasonable publicity and false light. In understanding whether you are violating someone's right to privacy, you might ask questions such as: Does the matter cast a false light on the person? Are you intruding on an aspect of the person that they wanted to be truly private? How would you feel if this information was disclosed about you? Generally the right of privacy ends with the death of the individual; however, you may decide – based on the content of the materials you are digitizing – to extend the right of privacy beyond death in deference to the family.

The right of publicity “prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.” (Right Of Publicity: An Overview, Cornell Univ.) The right of publicity can extend beyond a person's death and be controlled by his/her estate. We encounter the right of publicity generally with famous individuals, both dead and alive.

With both the rights of publicity and privacy, common sense will be you best guide in understanding if you are in violation. Likely you have already been educated by news story of various litigations involving these rights. Remember those stories as you make your decisions. If you would like a second opinion, contact your organization's legal counsel for advice.

In conclusion, when deciding if materials can be digitized, you must consider rights related to copyright, privacy and publicity. Keep in mind that doing copyright clearance, which can be resource-consuming, is only one of the huddles. By clearing all three, you will be assured of your right to digitize the materials.


  1. WNYLRC Watch, Sept/Oct 2006, contained a brief overview of copyright law, www.wnylrc.org/PUB/OnLineNews/2006/Sept_Oct.pdf
  2. WNYLRC Watch, Nov/Dec 2006,) contained an article on the copyright clearance process, www.wnylrc.org/PUB/OnLineNews/2006/Nov_Dec.pdf
  3. Right Of Privacy: An Overview, www.law.cornell.edu/wex/index.php/Privacy
  4. Right Of Publicity: An Overview, www.law.cornell.edu/wex/index.php/Publicity
  5. Right of Publicity, www.publaw.com/rightpriv.html

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