South Caribe Roots Archive
Policies on Individual Likenesses
Introduction:
An individual’s “likeness” refers to their identity, including their facial visage and name. Our use of an individual’s likeness can be subject to various states’ laws on privacy and publicity rights.
Since our public use of individuals’ likenesses poses legal risks similar to the copyright risk inherent in publishing an image, video, sounds recording, or any other copyright-protectable work, we need to track and justify our use of individual likenesses the same way in course asset trackers. Note that the question of whether the likeness needs to be tracked is separate from the policy outlining who must sign an appearance release for their likeness to be usable. We require signed appearance releases to justify certain likenesses, but others will be usable without a signed agreement.
For likenesses, media “recorded by South Caribe Roots Archive (SCRA)” includes anything taken or recorded by SCRA employees, SCRA contractors, SCRA interns, and any third parties creating a SCRA work-for-hire. “Third-party media” means anything else (anything not “recorded by SCRA: e.g., CC-BY, CC0, PD, or any other published materials available to the public, as well as copyright-protected materials published by a third party (e.g., a clip of Barack Obama from CNN, or a photo of a famous event the faculty will be explaining, which we plan to justify with transformative fair use). “Minor” means someone under 18 years of age.
Policy on Recording and Individuals’ Likenesses:
This policy determines when you need to record an individual’s likeness in your course’s asset tracker.
Always record likenesses for:
● All speaking roles, including guest speakers, guest lecturers, SCRA employees, interns, or staff (whether recorded by SCRA or a third party).
● All minors (whether speaking or not; whether recorded by SCRA or a third-party, even if the media is very old, e.g. a 1910 photograph of children).
● Likenesses of people in vulnerable situations (whether speaking or not; whether recorded by SCRA or in third-party media), including anyone who appears in the final deliverable to be:
○ In the act of receiving medical care (including mental health care, consultations with health care professionals, receiving or taking medications or medical interventions)
○ A refugee
○ Incarcerated or detained by a government agency
○ Homeless or clearly impoverished (e.g., receiving food aid)
○ Otherwise vulnerable
● Anyone portrayed in a highly negative light in the final deliverable
○ Anyone accused of a crime
○ Anyone accused of transgressing moral boundaries (e.g. an extramarital affair)
● Any famous people (whether speaking or not; whether recorded by SCRA or a third-party)
● Any students, faculty, or staff, whether speaking or not
Do not record likenesses for:
● Non-speaking likenesses in published third-party media, except for famous people and minors (e.g., CC-BY, CC0, PD, etc.).
● Unidentifiable individuals: If they would not be able to recognize themselves, then we are not reproducing their likeness and don’t need to record it at all. For example, if we can only see the back of their head, or they are too far away or out-of-focus to be identifiable, or if we blur their face in post, then we do not need to record a likeness.
Examples illustrating when to record individual likenesses:
● Any speaking role → Always record likeness
○ Record likeness whether the media was recorded by SCRA or by a third party
○ Includes interviewees, guest speakers, and guest lecturers
○ Includes SCRA staff, interns, other SCRA staff, and SCRA employees
○ Remember to:
● Students in educational setting → Always record likeness
○ Whether speaking or not, and whether recorded by SCRA or a third party
○ “Educational settings” include classrooms, seminars, lectures, libraries, dorms, other property not accessible by the general public, and students doing course field work (or on-location research)
● Non-speaking likenesses that appear in published third-party media → don’t record likeness (unless child, famous, vulnerable situation, or portrayed in negative light)
● Non-speaking likenesses that appear in SCRA-recorded media → don’t record likeness (unless child, famous, vulnerable situation, or portrayed in negative light)
● Speaking role in published third-party media → record likeness
● Child in speaking role → always record likeness for minors
● Child in non-speaking role (recorded by SCRA) → always record likeness for minors
● Child in non-speaking role appears in published third-party media (not recorded by SCRA) → always record likeness for minors
● Famous person in speaking role (whether recorded by SCRA or in published third-party media) → always record likeness
● Famous person in non-speaking role (recorded by SCRA) → always record likeness for famous people
● Famous person in non-speaking role appears in published third-party media → always record likeness for famous people
Policy on Individuals Signing Appearance Releases:
Once you have all the necessary individual likenesses present in your materials recorded in your asset tracker, the next question is whether these likenesses are usable. Some individuals’ likenesses will need an appearance release to be usable in the published material, while others will not. This policy addresses the kinds of likenesses that require an appearance release (the “Written Permission” use rationale) and those that can be justified with “Implied Permission.”
Who Must Sign an Appearance Release?
● Anyone in a speaking role: Anyone who speaks must sign a release. This includes: guest lecturers and interviewees (whether or not they are SCRA employees), members of the public, SCRA staff, interns, librarians, other SCRA staff, and spouses or family members of SCRA staff or faculty, and any faculty from other institutions. This also includes all minors and famous people with speaking roles.
● Students: All students are protected by FERPA. Any student recorded in an educational setting (as defined above) can only be justified by a signed appearance release, even if they don’t speak to the camera.
● Children recorded by SCRA: all minors SCRA records need an appearance release signed by their parent or guardian, even if they don’t speak to the camera.
Who Does Not Need to Sign an Appearance Release?
● Unidentifiable likeness: If the individual in question would not be able to recognize themselves, because their face is not shown at all or is blurred, or they are too far away, no release is needed.
● Non-speaking individuals in a public place: There is no right of privacy in public places (e.g., b-roll of people walking through a downtown square). If you have a question about whether appearance releases will be required when filming in a particular public place, check with SCRA staff.
● Children in previously published third-party media: We do not need appearance releases for children appearing in previously published third-party media (e.g., CC-BY or PD - USG photos including children). These likenesses must be recorded, but can be justified with the Implied Permission use rationale.
● Famous people at public events: Famous people (e.g., the Pope, the President) who are, in fact, associated with the event at which they were photographed do not need an appearance release. These likenesses must be recorded, but can be justified with the Implied Permission use rationale.
● Famous people recorded by SCRA in non-speaking roles: Famous people always get recorded as a likeness, but when recorded by SCRA they can be justified with Implied Permission unless they have a speaking role.
Implementing the Individual Likeness Policies:
● New Recordings: The likeness policies are in effect for all new materials (not yet in production) as of [TODAY]
● Launched Recordings: The likeness policies are not retroactively effective for launched materials (where any part of the materials, other than promotional materials, is published before [TODAY]). These policies will, however apply to future versions of launched materials.
● Courses launching July 1, 2016 and later: All materials launching on or after July 1, 2016 must comply with these likeness policies.