Lawsuit over image use

On Sat, 15 Sep 2012 19:09:09 +0200, Mxsmanic
wrote:

tony cooper writes:

An interesting case here in Orlando over the use of a woman's
photograph at a professional basketball game.

http://tinyurl.com/9kznhbn

The need for a model release for advertising and marketing use is very well
established in the United States. If it's just editorial use, no problem, but
this is clearly a use that requires a release.

Of special interest is the basketball team's defense saying:

"...a disclaimer on the back of Orlando Magic game tickets also serves
as a waiver of rights. It warns that the ticket-holder is giving the
NBA team "the irrevocable and unrestricted right and license" to use
the holder's image in "any medium or context" and specifically
mentions promotional purposes "without further authorization or
compensation."

My intuition tells me that this defense will not work, but we'll see. The
reason being that the average person probably hasn't read the terms, hasn't
signed anything saying that they've read the terms, and the terms extend well
beyond what an average person might expect to be agreeing to just by buying a
ticket to a game.

I think it's reasonable for a person to expect and understand that appearing
in a public venue might result in him being photographed and the photograph
appearing in the media or in other contexts, but advertising and marketing are
special contexts in which a person's image may be placed in a "false light,"
implying endorsement or situations that didn't really exist. In that case, you
need a more explicit surrender of any image or likeness rights.

Then again, National Geographic used a picture of a girl in Afghanistan for
decades for the most commercial and marketing purposes imaginable and never
got a release from her, which I consider despicable.

If you are referring to the picture I think you are, the picture
wasn't a spontaneous photograph of someone in the street. It was
carefully arranged by Brian Brake and I would expect there was some
form of model release.
--

Regards,

Eric Stevens

On 2012-09-15 16:28:20 -0700, Eric Stevens said:

On Sat, 15 Sep 2012 19:09:09 +0200, Mxsmanic
wrote:

tony cooper writes:

An interesting case here in Orlando over the use of a woman's
photograph at a professional basketball game.

http://tinyurl.com/9kznhbn

The need for a model release for advertising and marketing use is very well
established in the United States. If it's just editorial use, no problem, but
this is clearly a use that requires a release.

Of special interest is the basketball team's defense saying:

"...a disclaimer on the back of Orlando Magic game tickets also serves
as a waiver of rights. It warns that the ticket-holder is giving the
NBA team "the irrevocable and unrestricted right and license" to use
the holder's image in "any medium or context" and specifically
mentions promotional purposes "without further authorization or
compensation."

My intuition tells me that this defense will not work, but we'll see. The
reason being that the average person probably hasn't read the terms, hasn't
signed anything saying that they've read the terms, and the terms extend well
beyond what an average person might expect to be agreeing to just by buying a
ticket to a game.

I think it's reasonable for a person to expect and understand that appearing
in a public venue might result in him being photographed and the photograph
appearing in the media or in other contexts, but advertising and marketing are
special contexts in which a person's image may be placed in a "false light,"
implying endorsement or situations that didn't really exist. In that case, you
need a more explicit surrender of any image or likeness rights.

Then again, National Geographic used a picture of a girl in Afghanistan for
decades for the most commercial and marketing purposes imaginable and never
got a release from her, which I consider despicable.

If you are referring to the picture I think you are, the picture
wasn't a spontaneous photograph of someone in the street. It was
carefully arranged by Brian Brake and I would expect there was some
form of model release.

Two different photographs. The Brian Brake "Monsoon Girl" was shot in
1960 in India, and he used a young Indian agency model.

The Steve McCurry NatGeo cover shot of the "Afghan Girl" was shot in a
refugee camp in pakistan in 1984, and she remained unidentified until
2002. By then she had returned to a remote village in Afghanistan, and
was married. McCurry had to obtain permission from her husband to get
shots of her at that time. He was limited in what he was able to shoot
without her face covered by a burqa.

--
Regards,

Savageduck

On Sun, 16 Sep 2012 14:42:20 +0200, Mxsmanic wrote:
: Eric Stevens writes:
:
: If you are referring to the picture I think you are, the picture
: wasn't a spontaneous photograph of someone in the street. It was
: carefully arranged by Brian Brake and I would expect there was some
: form of model release.
:
: There was no model release. Photographers in those situations generally do not
: seek releases, since the intended use is editorial. NG depended on the
: likelihood that the girl would never realize that her image had been used
: commercially around the world and would not come looking for NG with a lawyer.

In what venue was the litigation undertaken? Pakistan? A U.S. state? The
District of Columbia? Whose responsibility was it to prove that the courts in
that venue had jurisdiction and/or that U.S. law was applicable?

The lack of a model release doesn't mean that the model will win her case. I
suspect that in the U.S. (e.g., in the Florida case) the model would still
have to prove that the publisher of the picture understood that payment was
expected. The absence of a model release might or might not make that easier
to do, depending on the circumstances. As I understand the Florida case, the
picture was a candid shot and the woman didn't know she was "modelling". If
so, the blabbing she did about how it offended her to have people think she
worked as a model, will likely not be helpful to her case.

But I stand by my guess (and that of several others in the group) that the
Florida case will be settled out of court.

Bob

On Sun, 16 Sep 2012 11:35:25 -0400, tony cooper
wrote:
: On Sun, 16 Sep 2012 09:11:52 -0400, Robert Coe wrote:
:
: On Sun, 16 Sep 2012 14:42:20 +0200, Mxsmanic wrote:
: : Eric Stevens writes:
: :
: : If you are referring to the picture I think you are, the picture
: : wasn't a spontaneous photograph of someone in the street. It was
: : carefully arranged by Brian Brake and I would expect there was some
: : form of model release.
: :
: : There was no model release. Photographers in those situations generally do not
: : seek releases, since the intended use is editorial. NG depended on the
: : likelihood that the girl would never realize that her image had been used
: : commercially around the world and would not come looking for NG with a lawyer.
:
: In what venue was the litigation undertaken? Pakistan? A U.S. state? The
: District of Columbia? Whose responsibility was it to prove that the courts in
: that venue had jurisdiction and/or that U.S. law was applicable?
:
: The lack of a model release doesn't mean that the model will win her case. I
: suspect that in the U.S. (e.g., in the Florida case) the model would still
: have to prove that the publisher of the picture understood that payment was
: expected. The absence of a model release might or might not make that easier
: to do, depending on the circumstances. As I understand the Florida case, the
: picture was a candid shot and the woman didn't know she was "modelling". If
: so, the blabbing she did about how it offended her to have people think she
: worked as a model, will likely not be helpful to her case.
:
: But I stand by my guess (and that of several others in the group) that the
: Florida case will be settled out of court.
:
: She might settle for season tickets to the Magic. I wonder, if she
: does, if her lawyer will take her seat for 40% of the games.

The lawyer probably has season tickets already. Maybe she does too. She's a
social worker, but maybe her husband is rich.

Bob

On Sun, 16 Sep 2012 14:42:20 +0200, Mxsmanic
wrote:

Eric Stevens writes:

If you are referring to the picture I think you are, the picture
wasn't a spontaneous photograph of someone in the street. It was
carefully arranged by Brian Brake and I would expect there was some
form of model release.

There was no model release. Photographers in those situations generally do not
seek releases, since the intended use is editorial. NG depended on the
likelihood that the girl would never realize that her image had been used
commercially around the world and would not come looking for NG with a lawyer.

SavageDuck has straightened me out. I was thinking of the wrong
photograph.
--

Regards,

Eric Stevens