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Legalbabble
by Arthegarn on Feb 27, 2002 - 12:56 AM
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Sure?
I’ll try to keep it short. First thing to understand is that not all illegal acts are crimes, crimes are only those acts pursued by penal law and that have a punishment as a juridical consequence. Illegal acts are prosecuted by an “offended part”, and have an indemnization as juridical consequence (meaning a crime can be prosecuted both ways). Second thing is that Continental European and Anglo-Saxon law systems (called the Code System and the Common Law system) vary greatly in philosophy and making, though not so much in content.
A) Penal law: Identity stealing is a crime, but the fact is we are not facing an identity theft crime, but an image theft. Egnima never claimed to BE Gohtvail, she just said that was her body. Identity goes beyond just bodily appearance. If she had tried to mimic Vail’s history, relations, idiosyncrasy, etc and claimed that she WAS the owner of gothicamateur.com (Hey, it’s true, she’s always in her PJ’s), that would have been identity theft. I’ll put an example: If I post a Tom Cruise pic and say that’s me, Arthegarn, that’s no identity theft. If I post a Tom Cruise pic and then claim to be Tom Cruise, that IS identity theft. So Egnima and Sorceress_ly and so on and on did not commit any crime
B) Civil Law: the PACA is incorrect or, at least, inexact. There is a huge doctrinal discussion about the collision between the right to privacy and proper (own) image and the right to information. Defenders of the right to information (mainly photographers, yellow press and their lawyers) claim that it is above anything, so if they get a photo of anything that actually happened and then post it to inform the public of it nothing happens and the photo can’t be withdrawn (they use an analogy of exceptio veritatis, saying that if it’s not a crime to call someone son of a bitch if he really has that ancestors, then it shouldn’t be a crime to post a photo of anything that is true, no matter how embarrassing) . Defenders of the right to proper (own) image (mainly yellow press famous people and their lawyers) say that their image is theirs and so they have a right to decide when, where and how much of such a personal emanation from their person as a picture of their physical body is, should and could be used. Defenders of the right to privacy (mainly people who are sick of being monitored by a crowd of “Hallo!” and so photographers every time they move, mainly European nobility, royal houses, extremely “beautiful people” and their lawyers) say that they have both a private and public life and, though they understand being photographed and these photos printed when it regards their public life, they should be left alone to live a private, intimate life like anyone else.
This whole iurisbabble thing means that, though the photographer, as an artist, owns the exploitation of the photograph, he might not own the right to publish it (or otherwise broadcast it) without permission from the model.
So, what happens if you use a photograph you didn’t take without permission from the owner of the copyright? That’s illegal and you are entitled to indemnization for any profit loss he could have got, plus some amount of moral damage. What happens if you post a photograph of anyone besides you? that person might sue you for using his image without hir consent, and you’d have to pay an indemnization that covers her cost of opportunity (what s/he’d had earned if he had sold it), plus the economic translation of the damage to hir image (many people live from their public image) plus moral damage
This are roughly the international regulation of these activities. These might get harder in some parts of the World, and please consider it’s all extremely simplified and hence inexact (but not incorrect).
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