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Apparently photog put model's image on Getty as an editorial image with no release. It was first sold and used for magazine editorial use but Getty sold it again and it was used in an HIV rights awareness ad in a free newspaper.   It seems she's filed lawsuit against Getty.for commercial use of the image.

 

http://www.foxnews.com/us/2013/09/20/new-york-model-sues-after-photo-used-in-hiv-positive-ad/?intcmp=latestnews

 

Seems to me that the HIV rights awareness ad still is editorial usage.

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Used in an advert - that sounds commercial to me - not even a 'Posed by model' byline. No model release supplied or asked for - the end user is obviously at fault - Getty may have have mitigation in that the image was supplied for editorial use and they did not imply that a model release existed. 

 

Interesting one to watch and of course being US based the lawyers will love this one.....

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Apparently photog put model's image on Getty as an editorial image with no release. It was first sold and used for magazine editorial use but Getty sold it again and it was used in an HIV rights awareness ad in a free newspaper.   It seems she's filed lawsuit against Getty.for commercial use of the image.

 

http://www.foxnews.com/us/2013/09/20/new-york-model-sues-after-photo-used-in-hiv-positive-ad/?intcmp=latestnews

 

Seems to me that the HIV rights awareness ad still is editorial usage.

 

Editorial? An ad for AIDS awareness? Hardly. You'd think that such a sensitive useage would have made the charity ultra-careful about the choice of image.

 

If that was my likeness being used, in a similar context, I'd be briefing my lawyer too...

Edited by John Morrison
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I'm with the model. Commercial use, and because it is such a sensitive area, you think the charity would have specifically used a real HIV positive person in the ad. 

 

I don't know if Getty would be legally liable, or just the charity.  If the picture sold as editorial use only, and was sold without a model release, I think it would be on the charity's shoulders.

 

Yeah, I'd be talking to my lawyer too.

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I agree the model should take legal action. If on Getty it wasn't mark as "Editorial", then both Getty and the photog would be liable. This is why I'm so very diligent on stating "Editorial use only" in caption or description and attaching all restrictions, to "cover my a**".

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I agree the model should take legal action. If on Getty it wasn't mark as "Editorial", then both Getty and the photog would be liable. This is why I'm so very diligent on stating "Editorial use only" in caption or description and attaching all restrictions, to "cover my a**".

 

Can't follow your logic on why, if Getty didn't do something (mark as editorial), the photographer is liable (assuming the photographer made it abundantly clear there was no release).

 

I'd bet a small amount on G being in the clear IF they made it abundantly clear there was no release available. I reckon the end-user may be having sleepless nights however . . .

 

dd

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The article mentions that it was a NY state government agency that apparently placed the image in the newspaper.  

 

"ad was paid for by the state Division of Human Rights"

 

Would that not make it a "public service" placement as there's no commercial value to the state or the newspaper?    

 

How is a public service placement by a state government agency a commercial usage?

Edited by Phil
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Can scarcely believe this, as I recall something similar happening just a few years back.  As I recall, it was a photo (of a child?) used in a poster campaign to promote use of prophylactics to help prevent HIV-AIDS in the African-American community.  I believe that in that case the photo was model-released, but that the model (or mother) complained that the usage was not what she had signed the release for.  Believe that it was settled out of court?

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It seems incredible that the people producing an ad like this would use a library image of a person in such a context without checking it out really thoroughly. Surely ads like these call for commissioned shots only with the models knowing exactly how they would be used.

Edited by MDM
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It seems incredible that the people producing an ad like this would use a library image of a person in such a context without checking it out really thoroughly. Surely ads like these call for commissioned shots only with the models knowing exactly how they would be used.

 

Fully agree.  I guess that ultimately, this has to be a case of trying to buy cheap, without thinking of the consequences.

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There's a good summary of the potential pitfalls in taking and using photos of people at

 

http://www.wipo.int/sme/en/documents/ip_photography.htm?goback=.gde_1541417_member_274688970#!

 

There are two issues here: One is the issue of whether this use is "commercial" (needs release) or "editorial" (no release necessary). Because of the peculiar definition of commercial in this context, I believe this is a commercial use, even though there was no profit involved or intended. By Alamy's definition, a commercial use "is when an image is used to advertise, promote, sell or endorse a product, service, organisation or brand." This use was promotional, even though it was a non-profit promotion.

 

The other issue falls under the heading "Putting someone in a false light or defame someone" at the wipo link above. Even if there had been a signed model release, chances are it wouldn't have covered this situation. Alamy's sample release specifically precludes "pornographic, defamatory, libellous or otherwise unlawful" uses, and I certainly wouldn't sign a release without that clause. I think the model can make a very good case that this use was defamatory.

 

This was obviously a snafu on the part of the people who made the ad. The big question is whether Getty can be held responsible in any way. It is often asserted in this forum (and I've always agreed) that the ultimate responsibility for making sure that a photo is properly released lies with the end user, not with the photo agency. This case could test that theory.

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I'm with the model. Commercial use, and because it is such a sensitive area, you think the charity would have specifically used a real HIV positive person in the ad. 

 

I don't know if Getty would be legally liable, or just the charity.  If the picture sold as editorial use only, and was sold without a model release, I think it would be on the charity's shoulders.

 

Yeah, I'd be talking to my lawyer too.

This was on the local television news yesterday. According to ABC News the model is suing both Getty and the state agency. One would presume Getty was aware of the intended use when they calculated the price but we'll have to see how this sorts out.

 

Getty was been involved in a similar suit over a photo of an African American child used in a billboard by a pro-life group, stating "the most dangerous place for an African American child is in her mother's womb." In that case I believe the mother had signed a release but said she never consented to having her daughter's image used in that way.

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Getty was been involved in a similar suit over a photo of an African American child used in a billboard by a pro-life group, stating "the most dangerous place for an African American child is in her mother's womb." In that case I believe the mother had signed a release but said she never consented to having her daughter's image used in that way.

 

That's the one I was thinking of!

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Getty was been involved in a similar suit over a photo of an African American child used in a billboard by a pro-life group, stating "the most dangerous place for an African American child is in her mother's womb." In that case I believe the mother had signed a release but said she never consented to having her daughter's image used in that way.

That's the one I was thinking of!
C0J8KG.jpg

 

There was also an incident where our Health Department licensed an image from Getty. The original photo was of an African American man sitting in a chairand. It was then photoshopped to remove one of his legs, and used it in a TV ad implying he'd lost his leg due to diabetes and soda consumption. As far as I know it didn't result in a law suit but it did stir quite a bit of controversy.

 

http://www.nytimes.com/2012/01/30/nyregion/man-in-diabetes-ad-says-he-is-shocked.html?_r=0

Edited by fotoDogue
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