Photographers who saw ImageBrief’s a recent
blog post about Pamela Olivera’s shot that was used worldwide in a Delta Airlines campaign have been asking why Delta would take such a risk on an unreleased picture. Other ImageBrief photographers have commented lately that ImageBrief does not determined whether or not they have releases on at least some of their accepted pictures. They seem to simply accept that every image submitted has all necessary releases.
I asked Simon Moss, CEO of Image Brief, about Olivera’s picture and whether it was released since it seemed to be a grab shot. It seemed highly unlikely that she made any attempt to get a release. Specifically, I asked if ImageBrief had agreed to indemnify Delta if there is any legal blow back from the individual photographed? And if ImageBrief’s invoice terms clearly state to the buyer that it is the buyer’s responsibility to determine if adequate releases are available?
Here’s what Simon had to say, “Because we're under NDA and have a respect for privacy for our photographers and clients, I can't share any information about the specifics of the agreements.”
I also asked, "Is there an argument that anything shot in a public place is free game and an individual who is out in public has no right to privacy?"
Simon said, “In this particular shot, where it is shot from behind, one could argue that the lady in the image could actually be anyone and therefore wouldn't require a model release.”
Risky Ground
The subject can easily recognize herself in this picture, and I suspect many friends and family can also recognize her. There is no telling whether she approves of having her picture used in any ad, or this particular ad. Maybe she is a stewardess for a competing airline. Since this picture was shot in New York City it is certainly possible that she is a professional model and does this kind of work for a living.
According to Wikipedia “The
right of publicity, often called
personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity.”
“Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being
commercially exploited without permission or contractual compensation, …or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions,
publicity rights fall into the realm of
tort law.”
In the United States “personality rights law” varies from state to state, but it is generally accepted that if an individual can be identified a photo of that the photo cannot be used for “commercial purposes” without the individual’s specific permission (a valid model release).
If the picture is taken in a public place, then it can generally be used for “editorial purposes” so long as it does not misrepresent the individual or the situation. But “commercial use” is a whole different ballgame.
Major stock agencies will often accept pictures of partial body parts – a hand, foot, legs, but certainly not a face – without a model release. But certainly not a full figure. It is generally accepted that model releases are not needed of a group of 5 or more people shot in a public place, but this is not an iron clad rule and can vary greatly depending on how the image is being used commercially.
Back To The Image At Issue
If this woman sees her image in any Delta ads it is very likely that she will go to Delta and say, “I did not give you permission to use this picture. Pay me.”
At that point, depending on what she asks. Delta may settle with her. If she decides to take the case to court she will certainly win. If Delta pays, they will probably turn around and demand compensation from the advertising agency that created the campaign, from ImageBrief and from Pamela Olivera. In all likelihood the claim will work its way right down the chain unless someone in that chain has paperwork that relieves them from obligation.
One of the
big claims for unauthorized use that forced Getty Images to tighten its requirement for model releases occurred in 1998. Victoria Newell-Simon, and her husband Keith Simon sued over repeated use of a photo of the couple and their newborn daughter McKenzie. The photo shows them sitting on the ground in a park and was taken for their personal use by a professional photographer.
While the photo was used many times in many situations, one thing that irritated the couple was that the picture was being used on a Christian Coalition calendar while the couple is Jewish. Costco also used Keith's receding hairline to promote Rogaine, a baldness remedy.
At the time Forbes Magazine said the case could result in a settlement of more than $1 million for the plaintiffs. There was an out-of-court settlement and the final amount was never revealed.
Indemnification
Many microstock agencies are now offering their customers indemnification for an additional fee. If any claims should arise regarding the use of an image, and the customer has purchased indemnification, then the agency will handle the claim. Basically, the customer is buying insurance. The agency may be self-insuring and there may be relatively few such claims, but when there is one it could be significant. Microstock agencies that offer such insurance also tend to carefully insure that they have adequate releases for every image in their collection.
More and more of the stock photos on the market today have been shot by part timers who are having fun taking pictures and have no idea of the liability risks they may be assuming when one of their images is used for commercial purposes. The vast majority may be lucky enough to never have a problem, but a few may end up paying a severe price for not paying attention to business details.