Lawsuit over image use

Discussion in 'Photography' started by tony cooper, Sep 15, 2012.

  1. tony cooper

    tony cooper Guest

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

    http://tinyurl.com/9kznhbn

    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."
     
    tony cooper, Sep 15, 2012
    #1
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  2. tony cooper

    Alan Browne Guest

    Venue tickets usually include all sorts of protection for the
    organizers. Buyers are screwed in pretty much all cases other than the
    event being cancelled or moved to another date or location.

    If the ticket says as you say above, I don't think she'll get very far
    even with her lawyer's position: { no fan reasonably expects to
    surrender privacy rights simply by walking into a sports venue. Hornsby
    said the ticket's fine print also should not serve as a waiver or
    permission to allow the team to "plaster your face on a bus." He argued
    that Slavin, a Magic fan, was not merely a face in the crowd in the
    basketball team's ticket campaign, but a featured star, singled out
    because she was young and attractive. }

    Given the wording on the ticket (as all encompassing as it could be
    written), it should be thrown out within minutes of the case being
    called. Indeed the judge could award costs to the defense (not sure if
    that's allowed/common in the Florida CC's).
     
    Alan Browne, Sep 15, 2012
    #2
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  3. tony cooper

    Mxsmanic Guest

    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.
    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.
     
    Mxsmanic, Sep 15, 2012
    #3
  4. tony cooper

    Mxsmanic Guest

    There are limits, though. You can't lay a claim to a spectator's first-born
    child just by putting it on the ticket, for example.

    I think it's reasonable to put something on the ticket that says a spectator
    consents to being photographed and to that photographed being published
    (especially since no release is normally required for this, anyway), but
    extending that to for-profit commercial use is stretching things.
    He's on the wrong path. It's not a matter of privacy rights here, which are
    indeed generally surrendered in public places (in the U.S.). It's a matter of
    consenting to have one's image used for advertising or marketing, which is a
    different ball game (no pun intended).
    That is a much more cogent argument. I don't think that walking into a stadium
    equates to working as a paid commercial model.
     
    Mxsmanic, Sep 15, 2012
    #4
  5. tony cooper

    Alan Browne Guest

    Not at all. By attending the event she agreed to the conditions on the
    ticket. That was the "release".

    Intuition? A good thing you're not a practicing lawyer.
    You also, when you _use_ the ticket to attend, agree to hold the
    organizers, performers and the venue not responsible for whatever injury
    might occur to you by any manner. You won't sue on that basis either
    other than gross neglect.
    Editorial content does not require model releases. (the cover).

    As to their sales of the poster and what not you don't know what NG have
    done in that respect (release, compensation).

    NG photograph thousands of people every year and use their photos for
    all sorts of use without compensation to the photographed. The money
    raised funds a lot of their grants and expeditions. It is certainly not
    their paltry subscription rate that funds much of it.
     
    Alan Browne, Sep 15, 2012
    #5
  6. tony cooper

    Alan Browne Guest


    Do you always have to raise specious and unrelated issues to make a point?
     
    Alan Browne, Sep 15, 2012
    #6
  7. tony cooper

    George Kerby Guest

    Bullshit. That is OK for a crowd shot in a newspaper and such. NOT an entire
    advertising campaign. As usual, you are flat WRONG!

    Gawd! Give them books and all they do is chew the covers off...
     
    George Kerby, Sep 15, 2012
    #7
  8. tony cooper

    George Kerby Guest

    It's a good thing they don't let you close to heavy equipment...
     
    George Kerby, Sep 15, 2012
    #8
  9. tony cooper

    tony cooper Guest

    What I find difficult to accept is that a woman has suffered emotional
    distress because she has been picked out as "young and attractive"
    when she attended something as wholesome as a basketball game.
    Further, she claims to have suffered indignity by being asked if she
    was a model.

    Unless the question used the phrase "plus-size model", no woman
    objects to that question.

    However, I hope she nails the Magic on this. Any organization that
    charges what they charge for tickets to see a mediocre team play, and
    charges what they charge for beer and hotdogs, and an organization
    that stuck the taxpayers for most of the cost of their new arena,
    deserves to be nailed.

    The last time I attended a Magic game, I told the beer lady that I had
    never paid that much for a beer from a woman with her top on before.
    She did not find the comment amusing.
     
    tony cooper, Sep 15, 2012
    #9
  10. A release is required for "commercial use" (a technical term largely
    meaning advertising and promition; definitely not news reporting, even
    though the photographer gets paid). Which is why those disclaimers on
    the tickets are important, you can't really avoid the crowd appearing in
    telecasts and some photos.
    Yes, that's the line.
    Being the primary face of a campaign does seem to go beyond what you
    ought to waive by buying a ticket and walking into a sports venue.
    Being a background face seems different to me.

    Should be interesting!
     
    David Dyer-Bennet, Sep 15, 2012
    #10
  11. Reductio ad absurdem, right? (Or some spelling fairly close to that.)
    "Pretty much all cases" is a strong claim, so looking for an easy
    counter-example seems like the right starting point for that argument.
     
    David Dyer-Bennet, Sep 15, 2012
    #11
  12. tony cooper

    Alan Browne Guest

    Which is why I added the reasonable conditions under which one is not
    screwed by the ticket conditins. In another (waste of time) reply to it
    I stated " You won't sue on that basis either other than gross neglect. "
     
    Alan Browne, Sep 15, 2012
    #12
  13. tony cooper

    Alan Browne Guest

    Not usually. But her lawyer will help her spin that whatever way is
    needed (The article alluded to her work with special needs kids IIRC).
    While possibly admissible, that won't likely weight on the decision
    either way. (If you notice how it settles, please do post. 2 years or
    so 'til it gets there?).
    The Bell Center here is pretty expensive too - regardless of the event.
    And I wouldn't want the ladies to take off their tops. It's a "top of
    the ladder" sales position (a lot of tips) that goes to seniority.
     
    Alan Browne, Sep 15, 2012
    #13
  14. tony cooper

    Robert Coe Guest

    : Being the primary face of a campaign does seem to go beyond what you
    : ought to waive by buying a ticket and walking into a sports venue.
    : Being a background face seems different to me.
    :
    : Should be interesting!

    However it comes out, the basketball team loses. They could spend more on
    defending the case than it would have cost them to pay the woman a modelling
    fee. And the negative publicity will diminish the benefit of the advertising
    campaign.

    So why didn't they just buy the rights? It might be mostly a matter of
    logistics: when they decided to use the woman's picture, they didn't know who
    she was and had no easy (i.e., cheap) way to find her.

    The case will be settled, but in a way that doesn't force the team to admit
    that the disclaimer on their tickets is questionable. They'll pay the woman
    for the rights to the picture, in return for a gag order prohibiting her and
    her attorney from disclosing the terms.

    Bob
     
    Robert Coe, Sep 15, 2012
    #14
  15. tony cooper

    Alan Browne Guest

    That's very likely. An article in (IIRC) The Economist showed that
    plaintiffs are more likely to collect a settlement offer than to collect
    a larger reward by pursuing it to judgement. And it cuts both ways.

    Even the plaintiff can reach out to settle to avoid the wait and the
    risk - but first you lodge it with the courts to make a defense
    expensive and thence a business decision.
     
    Alan Browne, Sep 15, 2012
    #15
  16. tony cooper

    Savageduck Guest

    This is going to be decided by "cost/benefit" analysis and a settlement offer.

    I have seen this happen in allegations and complaints against law
    enforcement agencies, much to the chagrin of officers who believe
    claims against them are false.

    If the Magic case goes to trial, if a settlement isn't reached, and if
    it isn't dismissed out of hand, it will be jury selection and court
    room theatrics which will determine the out come of this one.
    Either way, this is going to have PR fallout problems for the Magic.
     
    Savageduck, Sep 15, 2012
    #16
  17. tony cooper

    tony cooper Guest

    I dunno about that. The Magic have a team of lawyers on retainer. I
    doubt if this will add to the Magic's legal cost at all. They'll
    spend less time on this than they will on a contract for a
    third-string reserve player.

    The girl, though, probably has an attorney who has taken the case on a
    contingency basis. That will be side pushing to settle.
     
    tony cooper, Sep 15, 2012
    #17
  18. tony cooper

    Mxsmanic Guest

    I never do. I was giving an extreme example in order to clearly illustrate
    that just because you print something on a ticket doesn't necessarily make it
    binding.
     
    Mxsmanic, Sep 15, 2012
    #18
  19. tony cooper

    Mxsmanic Guest

    In theory. But there are limits to what you can put on the ticket. It's
    reasonable to include a release that allows use of someone's image for uses
    that don't actually require a release or for trivial uses that might require a
    release, but attempting to build an ad campaign around someone requires a
    release that amounts to more than just text on a ticket.
    I've never given my occupation. And lawyers use intuition all the time. Past
    decisions are not guarantees of future legal decisions.
    But the disclaimer should theroetically exclude all types of neglect, based on
    its language alone. And yet it doesn't.
    It wasn't used for just a cover. For decades, it was heavily used in much of
    NG's advertising.
    They did nothing, because they knew they could get away with it.
    Not for advertising campaigns, at least not if the people in the photos are
    likely to become aware of such use and object to it (or sue over it).
    It doesn't matter how the money is used.
     
    Mxsmanic, Sep 15, 2012
    #19
  20. tony cooper

    Mxsmanic Guest

    She looks dorky in the photo I saw, rather than young or attractive.
     
    Mxsmanic, Sep 15, 2012
    #20
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