A case study in the difficulties of the permission culture
April 11, 2014 | 6:25 pm
By Joanna Cabot
I wrote on Thursday about a great term Techdirt has been using to describe the new normal ‘permission culture’ in which we find our every media move governed by a rights-holder who can, or cannot grant permission for the use we desire. Whether it’s ‘this movie is not available for streaming on your country’ or ‘you bought the book but Amazon can tell you which device you can read it on,’ users are being told they can’t do something which may seem common sense to them.
GigaOM has a great little case study which raises some interesting questions on this. Actress Katherine Heigl is suing a drugstore chain who tweeted a photo of her leaving their store. The store is arguing that all they did was share news, and that Heigl was in plain view in a public space and so fair game for photographing. But Heigl’s counter-argument is an interesting one: it’s not the photo she objects to, but the caption. From the article:
“According to Heigl, Duane Reade crossed the line by adding the captions. In her view, this was an unauthorized endorsement in violation of federal trademark rules and the personality rights laws of New York state. She appears to have a case in that celebrities have a right to control the way their images are used for endorsement. You can’t, for instance, take a photo of Heigl walking by your donut shop and then use the snap to plaster billboards around the city that suggest she likes your donuts.”
To me, this is textbook permission culture: Heigl can’t stop you from taking the picture, or even sharing the picture on a ‘news’ site. But if you add text to it which suggests an endorsement, that is suddenly something she CAN control. And personally, I think that’s fair that she should. If you post a picture on Facebook and they use that picture without your consent to promote a cause you find offensive, for instance, you’d be upset about it, and a loophole in the terms and conditions giving them that permission would not appease you.
I don’t think I like this trend of needing to be overly vigilant over every tiny thing one says or does or posts. I think at some point an element of common sense has to kick in which allows that a person can, for instance, share their Kindle books with a spouse or child in their home and not be a dirty, stinky pirate. But in this case, I think Heigl is right. This store should not be allowed to essentially use her for free in an advertisement, under the guise of ‘it was news.’