Your digital project may include biographical material or an interview, lecture or performance by a faculty member, visiting scholar, lecturer or other notable guest of the University. It may include pre-existing material from a performance in a film or on an audio recording. The project might even include statements and responses from individuals selected from a live audience, a class, or the general public. Often, in order to include a person’s performance, voice, likeness, or image, it will be necessary to clear publicity and privacy rights.
There is a great deal of overlap between publicity rights and privacy rights. Typically, these rights involve the use of a person’s personal characteristics in a commercial context; the use of private information about a person in a manner that placed such person in a false light; the making of statements about a person that might damage such person’s reputation (libel/defamation); or the intrusion on a person’s expectation of seclusion or solitude.
You can usually clear publicity rights – obviating claims that the use of information about a person violates such person’s privacy or publicity rights – by obtaining releases from the appropriate parties. While a release will not be required every time a digital project includes a voice or makes reference to a name, the Standard Form Release should be used:
- whenever a person’s voice, image or performance is used in a manner that identifies such person;
- where the use is not merely incidental; and
- where such use is not serving a news reporting or newsletter function.
Examples of Persons from whom a Release is Required
- Persons whose voice, likeness, image, or other identifiable characteristic appears in an underlying work or pre-existing recording used in web-based educational materials.
- Audience members who participate in web-based educational materials and may be identifiable by name or distinguishing characteristic, and where the appearance of the person is not merely incidental.
Libel and Defamation
Additional care should be taken in instances where content includes material that directly or indirectly injures a person’s reputation. Use of such material may lead to libel or defamation claims. Defamation is a false statement that injures another’s reputation. Libel occurs when such false statement is published in some manner. When dealing with presumed factual material that may have an injurious effect on a person’s reputation, the practice will not be to secure a release (if the material is controversial, it is likely that such a release will not be forthcoming), but to ensure that the information that is being shared publicly is well-documented as truthful, a fair report of an official record or procedure, or a statement of opinion rather than fact. See the Libel Checklist for more information.
For those creating, posting content on, or hosting websites that allow users to comment or upload content (e.g., a blog, a Facebook page), it is worth noting the protections afforded Internet Service Providers (ISPs) by the Communications Decency Act. The Communications Decency Act broadly shields ISPs from defamation claims. However, this safe harbor protection is not afforded to ISPs where the ISP plays more than a passive role in creating the content in question. Hence, if you are responsible for creating a Yale website, Yale is unlikely to be deemed liable for content uploaded by its users. In such case, Yale is passively presenting the content. However, if the users are Yale employees and the content is uploaded by such employees (e.g., comments, Facebook updates), Yale may be deemed liable for such content, as Yale – through its employees – is actively selecting an presenting the content.
Finally, be mindful that the standard for alleging defamation may be easier to assert in foreign territories, as is the case in the United Kingdom.