The Flickr of Tiger Woods

So I'm in the process of building our profile pages for people listed on Tinfinger. One of the primary elements that a profile page should contain to be useful to the reader is a picture of the person in question. You might be thinking: why not allow users to upload a picture of the person, or code in the top results for the relevant tag at some image uploading place like Flickr? Ah, not so fast. I wonder whether Flickr is a set of lawsuits waiting to happen.

The reason I say that is not because of the problem of people uploading copyrighted images. I'm more concerned about the laws allowing a person to retain some measure of control over the dissemination of his or her likeness, and its use in commercial environments. It is known in some areas as celebrity likeness laws, or the right to publicity.

I keep reading Ben Barren's blog and seeing pictures of beautiful women from Flickr. Who's to say some Hollywood lawyers won't come and slap suits on Flickr and whomever mashes up their content for profiting (via Adsense) from the constant stream of unlicensed pictures of nubile starlets?

The law in this area in US in still in a state of flux, but there has been a recent big case involving Tiger Woods which sets out some strong precedent, relating to the artwork pictured at the right. This article is a good summary of prior cases, but was written before the Woods appeal was decided. This article sets out the full Woods decision. For those with too little time to comb through those links, in short:

• You can't use a person's likeness in advertising without paying.
• For non-advertising content, there is a tension between the artist's freedom of speech (in this context, the First Amendment) and the celebrity's right to publicity.
  
• You can use a person's likeness in art, but only when the piece has a transformative effect on the likeness, so that the artist has "added a significant creative component of his own to [the celebrity's] identity".

It would seem to me that very few, if any, of the photos of celebrities uploaded to Flickr possess any of that "transformative" artistic element required to avoid problems with the right to publicity, and if they do then it's most likely not the original artist who has uploaded it so there are the usual copyright issues.

The implications of this seem worrying to Flickr and its ilk. If I was Tiger Woods' agent, I'd be ringing up these companies and demanding a cut of any revenue gained from images tagged with tigerwoods. Clickthrough when viewing a Tiger photo on Flickr? Cha-ching. Printing a Tiger Woods photo from Flickr? Cha-ching. Burning a DVD of Tiger pics on Photoshow or Englaze? Cha-ching. Making a calendar, poster or book with Tiger images on Qoop? Cha-ching. Buying a Tiger stamp from Zazzle? Cha-ching.

That's why I'm very wary of having unlicensed photos of people on Tinfinger. Am I being paranoid?