Wednesday, February 4, 2009

Ethics of Visual Anthropology in Japan - Part Three

Today we continue our quest to tame the monster by examining regulations pertaining to terms of service of internet blogging and photo/video posting services. What are the rules about posting photographs/video on the internet; what happens to the ownership of photos/video once posted on the internet; and finally who is responsible for posted materials?

I have reviewed the Terms of Service for Blogger, Picasa Web Albums, YouTube (all owned by Google), Flickr and Photobucket. As they are similar I will only directly quote from Blogger regulations:

Blogger: Terms of Service

2. Proper Use. You agree that you are responsible for your own use of the Service, for any posts you make, and for any consequences thereof. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence and all United States export control laws.

6. Intellectual Property Rights. Google's Intellectual Property Rights. You acknowledge that Google owns all right, title and interest in and to the Service, including all intellectual property rights (the "Google Rights"). Google Rights are protected by U.S. and international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. As described immediately below, Google Rights do not include third-party content used as part of the Service, including the content of communications appearing on the Service.

Your Intellectual Property Rights. Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Google services which are intended to be available to the members of the public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services. Google furthermore reserves the right to refuse to accept, post, display or transmit any Content in its sole discretion.

You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content submitted.

For all terms, see

So it seems (and please correct me if I am wrong) that the individual who uploads content is responsible for all materials (text, photos, video) uploaded and retains ownership of those materials. However the services have a right to use the materials in their advertisements or whatever evil corporate need they deem fit. The services assume that the individual actually owns the rights to all materials uploaded. The services have the right to remove and delete uploaded materials as well.

Actually, I don't think any ownership really means much once material is uploaded and available for public viewing on the internet. The services can use materials and the public can copy and/or download materials. The only protection for photos might be watermarks and/or low resolutions.

With these regulations in mind, it seems all the more important that visual anthropologists follow established guidelines for photographing in public. Once a photo is posted, control of the image is out of the hands of the visual anthropologist and the individual(s) photographed.

A tangent but still of interest is a section dealing with Google Street Views in the Google Privacy FAQ:

Street View captures images of people on the street? Is that legal?

Street View only features imagery taken in public locations. This imagery is no different from what any person can readily capture or see walking down the street. While Street View enables people to easily find, discover, and plan activities relevant to a location, we respect the fact that people may not want imagery they feel is objectionable featured on the service. We recently incorporated face-blurring into Street View using state-of-the-art technology. We also provide easily accessible tools for flagging inappropriate or sensitive imagery for blurring or removal. Each Street View imagery bubble contains a link to “Street View Help” where users can report objectionable images. We routinely review these takedown requests and act quickly to remove objectionable imagery.

One might argue that a big difference is that one doesn't have to actually walk down the street to capture such images anymore. And many, many more people have access to the images whether they are actually looking for a particular location or surfing the numerous sites dealing with "funny" street views. And does street views conform to local, in this case Japanese, privacy laws?

Intentions: Fair Use and Creative Commons

I think it is important at this point to discuss the intentions of visual anthropologists and how they use the images they capture during research. Of course what visual anthropologist do is academic and not for profit. One interesting area to explore with this in mind is the idea of fair use. Fair use is the focus of a project at the Center for Social Media at American University School of Communication:

Helping people make media that matters

We investigate, showcase and set standards for socially engaged media-making. We organize conferences and convenings, publish research, create codes of best practices, and incubate media strategies.

Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it. Fair use enables the creation of new culture, and keeps current copyright holders from being private censors. With the Washington College of Law, the Center for Social Media creates tools for creators, teachers, and researchers to better use their fair use rights. Explore your fair use rights... This project will help media literacy educators understand their rights under the doctrine of fair use in order to help them more effectively use media as an essential part of their teaching.

The Center has an interesting video called Remix Culture: When is it fair and legal to use other people's copyrighted work to make your own? What's the line between infringement and fair use? Take this tour of remix culture classics, and use the Code of Best Practices in Fair Use for Online Video to make your own decisions.

It might seem like I am getting off track here. What does fair use have to do with taking photos in public in Japan? Instances for fair use include academic endeavors and education. Fair use deals with responsibility for both copyright holders and academics/educators who use copyrighted materials. Can such intentions be applied to individual portrait rights?

Another organization to explore when it comes to intentions of the visual anthropologist is Creative Commons.

Creative Commons is a nonprofit corporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.

We provide free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.

An example of a Creative Commons license is the one I use for this blog, the "Attribution-Noncommercial-Share Alike 3.0 Unported." The license states:

You are free:

* to Share — to copy, distribute and transmit the work
* to Remix — to adapt the work

Under the following conditions:

Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

Noncommercial. You may not use this work for commercial purposes.

Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.

Such a license might further demonstrate the desire for fair use on the part of the visual anthropologist. But there might be legal problems with Creative Commons licenses when it comes to photographs taken in public without consent. Dutch lawyer Olivier Oosterbaan discusses this issue in his blog Technology Law Culture. Oosterbaan was in the process of creating a photo book about Japan.

When sourcing additional Creative Commons-licensed images for the Japan picture book I am making from photo-sharing sites such as Flickr, I realized that pictures that portray people are not necessarily free to use, because of so-called portrait rights, despite of what the CC license says.

In today’s post, I would like to touch briefly on a limitation to the use of open content in general, with Creative Commons as a particular example. The limitation is that the author cannot give away, by license, more rights than he or she has. In the case of pictures (and videos and other works) that include people, such rights that are not for the author to control may include the right of those portrayed to object to publication on the basis of their so-called portrait rights.

What are Portrait Rights?

In short, portrait rights form a limited right to object to (control) the publication of photos (or videos), on the basis of privacy, a bankable reputation, or both, for well-known persons, persons in private situations and/or professional models. (This is under Dutch law, your mileage may vary depending on your jurisdiction.)


When using a CC-licensed work that includes people, use common sense and, when in doubt ask the photographer, and possibly a lawyer. (With regard to Creative Commons-licensed works that mention they are “model released” I might still contact the author to see the extent and any conditions of such release.) Portrait rights, at least under Dutch law, are not always available, and not absolute. Whether your interest in publishing the pictures outweighs the interest of those portrayed is a question of fact. Notwithstanding, you can imagine yourself at the place of those portrayed, and see whether you would welcome publication. When still in doubt, consider using suitable alternates.

Fair use and Creative Commons, while problematic, still seem to offer the ideas of collaboration and open text which are both the goals and methods of creating a Visual Anthropology of Japan.

More rules, regulations and opinions to ponder when trying to figure out what exactly is common sense? Oosterbaan suggests consulting a photographer, and I have done just that. The next post will provide insight from professional photographers and photojournalists currently working in Japan. How do they deal with these issues? Stay tuned to VAOJ...

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