my face got published in an ad, what to do

[ksmattfish]

I don't know how the lawyers in Lala land work, but the lawyers in reality always go after the biggest pay off, and that won't be from a rinky dink photographer when there is serious big business, advertising money available for plundering.

Only a goof from Lala land would take on a photo job where they would be personally responsible for getting individual releases from thousands of participants. If they were a professional (paid for services or not) they'll have a contract that states the organizers are responsible for obtaining releases. More than likely they donated their services (in return for a bit of publicity, and a tax write off), and won't be making any money. If they weren't a pro, and don't have a contract, then I have a hard time believing they made much money, if any.

In cases like this against photographers, where the plaintiff isn't slandered, the monetary damages awarded will usually be a percentage of the profit the photographer made. I do a few charity gigs each year, and my profit on them has to date been $0. Feel free to take any percentage of $0 you want. I'm giving it away!

 

[mysteryscribe]

I think for the tv station I charged 65 bucks. So they get ten. Hardly worth hiring the lawyer. Not many will take a case like this on consignment.

This is really an area somebody with legal experience should write an article here on. I would love to see the basis for a lawsuit in such a case. I know everybody wants to settle to avoid the cost of defending it, but what would you even claim as damages.

I was hot and sweaty and this picture shows me in an unfavorable light. It holds me up to ridecule. I dont know.

 

[JamesD]

I've told this story before somewhere on here; it's one I picked up while researching this sort of thing.

There was a photographer on some Caribbean island, and he was shooting photographs for a travel company brochure. He saw a pretty scene, snapped a shot of it, and neverminded the fact that there was a family in the scene.

Months go by, the brochure gets around, and lo and behold! the family in that image happen across a copy. They recognize themselves, and since they never signed a release, they think that they're going to get rich and contact their lawyer.

Lawyers contact lawers, who contact additional lawyers, and eventually, the photographer gets a note in the mail saying that he's being sued for $X. He talks to his lawyer for a few minutes, then mails off an offer for settlement.

The family gets the offter, which is for 50% of the entire amount of the amount the photographer was paid for the image. Surely their ship has come in! They happily accept, certain they're going to get a tidy sum, maybe pay for their next vacation--or pay off the credit card bills from THAT trip.

Upon receiving the signed settlement, the photographer wrote and mailed them a check for $50.

 

[mysteryscribe]

I still dont see the damages they are sueing for. I'm sorry but to me they were not hurt by having their picture made on the beach. Maybe it's just me but I don't get this whole frivolous lawsuit thing.

I had a friend who went to a lawyer with a case of a slipping in a parking lot of a local restaurant. He wasn't injured he just slipped on a wet sidewalk. He happened to have someone see it so he assumed he was going to get rich.

The lawyer said, "I can write a letter for you for a hundred dollars. If they won't settle we will have to go to court. That will be a hundred an hour while we are there figure five hours."

"So how much can i get."

"It isn't the money it's the principle," the lawyer said.

He didn't sue after all.

 

[Johnboy2978]

I'm of the opinion that this falls into the frivolous law suit category. I'm sure there are some ambulance chasing type lawyers that would salivate at this type of thing, but I'm not sure it's the best thing to do. From what I've read here, you ran in a race for a charitable cause. You also signed away any rights to your privacy by taking part in this race. Now, out of the thousands of people who ran in the race, your face was picked to be published. I would frame the ad, and be done with it. As others have said, no humans, animals, etc. were harmed in the making of this, so why make it a federal case? I personally think there is something wrong in trying to turn a nice day at a charitable event into a personal windfall. I also wouldn't feel obligated to give your mother any compensation as she shouldn't even have been in the race to begin with.

In the words of Earl Hickey, "Karma can be a cruel mistress Randy, do good things, good things happen....do bad things and bad things happen".

Buy a magazine, frame the ad, put a period at the end of this chapter of your life, and move on. Quit clogging up the legal system with this type of nonsense.

 

[Rob]

Personally, I'd phone up the company involved, ask for a framed tearsheet and tell all your friends what a super-famous model you now are.

From how I see the situation, you don't deserve any money, and trying to extort some out of a charity/business/organisation/whomever on some technicality is just greed isn't it?

Rob

 

[cecilc]

I've taken the time to investigate this "usage" issue with various sites on-line about photography and "rights" of everyone involved. I excerpted and copied here some of the information that I've read:

"Finally, we come to the issue of exploiting our photograph of another person for commercial purposes. This differs from the other three categories in that it does not require the complaining party to prove that the pictures caused embarrassment, humiliation, loss of self-esteem, or other emotional injury. The subject needs to prove only that the pictures were used for commercial purposes--that is, used with an expectation of bringing profit directly or indirectly. Personal use of photographs does not apply. Also excepted are photographs of public figures which are deemed to be newsworthy or informative, even if profit is derived from them. Lastly, the subject of the photograph must be identifiable. In other words, the subject must be able to prove that the likeness is, indeed, hers. If the person in the picture is unrecognizable because no face is showing, or if the photograph has captured only a generic part of the body--such as someone's back--the case becomes a "your-word-against-mine" situation.

In any case, when you use a photograph of person without a written release form, you take the chance of being embroiled in a lawsuit involving one of the above rights to privacy issues. What constitutes "use"? It's generally accepted that if the photographs are not displayed or published, but kept for the photographer’s own enjoyment or as instrumental in perfecting her craft, then a release form is not needed. However, the sale of such images as art, or as stock (because it constitutes a commercial use), necessitates obtaining a written release. If there is even a remote chance that you may be able to sell an image, get a release."

"A release is needed for the commercial use of a person's name or image. A "commercial use" occurs when selling or endorsing a product or service. For example, if your website offers haircutting products and you feature pictures of people using the products, you would need a release from the people in the photos. A release is not required if the person cannot be recognized in the photo, for example, if the photo only includes the person's hands. Several decades ago, the failure to obtain the release would have led to an invasion of privacy lawsuit. However, the "right of publicity" has now become the claim de jour for those whose name or image is used for commercial purposes."


"If the photograph is that of a person, you must also obtain permission of the person depicted in the photograph to use his or her likeness. The courts of the United States and some other jurisdictions have recognized a “right of publicity,” a right that derives from the “right of privacy.” These rights apply to all living persons and, under certain circumstances, those dead.

There are several sub-issues that have to be dealt with in terms of the right of privacy:

First: a person’s likeness and name may not be used for commercial purposes without the person’s consent. What then is a “commercial purpose?” This means a use that implies sponsorship, endorsement or where the photograph is used to sell a product or service. If you intend to use a photograph for such purposes, you absolutely must have a valid, written license from the subject to do so and you should be prepared to pay for the same.

Even if your use is not for “commercial purposes,” you still must have releases in writing from each of those whose images are distinguishable in the photograph. Most professional photographers carry model releases with them that the model, professional and otherwise, signs granting these personal rights to the photographer. But a word of warning: often the model releases may have limits on the rights granted the photographer and therefore, if the photographer grants you more rights than the photographer has, he and you may be liable to the subject. Therefore, it is always advisable to get the model to sign a separate release as well, even though the photographer may represent that he or she has such permission. If he or she is wrong, all you’ve got is a lawsuit."

It seems clear to me that, given the information above, the photographer was wrong in distributing (whether he sold the photo to the company or not) that photo to the hair products company ... AND the hair products company was wrong to use the image in a commercial (because that's what the ad is) with someone clearly identifiable pictured without making sure the photographer had a signed release from the people in the shot. Sure, a WAIVER was signed for the RACE or EVENT, and permission granted to use her likeness in photos or videos and the like in order to "promote the Run" .... but not to promote and advertise hair care products.

In my OWN mind, that's a clear violation .... and as photographers, we all should recognize that it's a clear violation so that we don't commit the same mistake ....

Just my 2 cents ....

AND I'd very much like to find out how this issue is resolved by Calgary_life .... I hope they keep us up-to-date ...

 

[markc]

Sure, a WAIVER was signed for the RACE or EVENT, and permission granted to use her likeness in photos or videos and the like in order to "promote the Run" .... but not to promote and advertise hair care products.

Without reading the actual wavier signed, we have no way of knowing this. The one's I posted were examples and CL hasn't posted the actual release.

 

[astrostu]

I have to agree with what most people said already, that, although it's kinda shotty for them to use the image to promote a sponsor rather than the event with your photograph, but I think if you do pursue legal action, it's the charity that will suffer. I like Bob's advice: Just grab a copy of it and tell all your friends how famous you are!

 

[mysteryscribe]

Given the nature of all this I would like to see this advertisement as well.

The one I was invovled with the advertisement just said, "See how community minded we are."

If i were the haircare product, and that was what the adv said, I would let them bring the suit. I was just promoting the charity...

 

[mysteryscribe]

It seems that even without the waiver or release it isnt a slam dunk... I thought I too would do a little research... This is the very first article on the very first google entry.

IN 1999 Philip-Lorca diCorcia set up his camera on a tripod in Times Square, attached strobe lights to scaffolding across the street and, in the time-honored tradition of street photography, took a random series of pictures of strangers passing under his lights....

When Erno Nussenzweig, an Orthodox Jew and retired diamond merchant from Union City, N.J., saw his picture last year in the exhibition catalog, he called his lawyer. And then he sued Mr. diCorcia and Pace for exhibiting and publishing the portrait without permission and profiting from it financially. The suit sought an injunction to halt sales and publication of the photograph, as well as $500,000 in compensatory damages and $1.5 million in punitive damages.

The suit was dismissed last month by a New York State Supreme Court judge who said that the photographer's right to artistic expression trumped the subject's privacy rights.​

 

[markc]

That's different than using the image in an advertisement. That's why I think it's a little silly to try and give advice without having a legal background; little details can make big differences.

 

[MommyOf4Boys]

Do people like Brittany Spears sign a universal photo release for tabloid magazines or something, then? Because I do not think that she signed anything when that photographer took the photo of her plastered in all of the tabloids, etc with her holding her baby while driving. :lmao:

 

[mysteryscribe]

I hope you didnt think i was giving legal advice. The complete article stated very clearly that since the photograph was for sale, was why the man sued.


It was not a purely artistic venture it was a commercial venture and if I read the previous statements, also not legal advice, it was based not on advertising, but on any commercial venture. I stated quite early in this discussion that he should hire a lawyer.

I think almost everyone has said. "I'm not a lawyer you need to see one. I said it as well."

There are fifty states and thousand decissions. And from experience I can tell you that you never know what a jury will do. But I will tell you this, if I sat on a jury with just these facts, and If I was forced by some judge to render a verdict, I might give him a dime. But then I'm prejusticed... I am a photographer not a lawyer.

Since it isn't exactly the same thing I did a little more reading. If the advertisement is no more than look what a good thing We did, then it is not considered an endorsement by the person depicted in it. According to the information I got from a google article it is then not actually considered a true advertisement as it does not directly promote the product. It is consider more in the editorial line. Same is true of the bank poster.

BUT AGAIN I AM A PHOTOGRAPHER HIRE A LAWYER...

 

[markc]

Do people like Brittany Spears sign a universal photo release for tabloid magazines or something, then? Because I do not think that she signed anything when that photographer took the photo of her plastered in all of the tabloids, etc with her holding her baby while driving. :lmao:

That falls under the category of "news". They push the line, though. That's why they sometimes lose lawsuits.

--

I should have separated those sentences out, mysterscribe. I didn't mean for it to sound so directly harsh towards you. But I did want to point out that selling a piece of work in a gallery is different than selling an image to a company to use as an advertisement to promote themselves. And as you pointed out, even "advertisement" is not a simply defined term.