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Author Topic: Woman suing Chipotle and photographer $2 billion over use of photo  (Read 6555 times)

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« Reply #25 on: January 08, 2017, 17:53 »
0
True, but Chipotle is also a much, much bigger company than Lindahls (70 times higher revenue).


ShadySue

  • There is a crack in everything
« Reply #26 on: January 08, 2017, 18:34 »
0
Thanks good result but his face was on the front of every one of their pots so upper end I guess
I guess it would depend on the model release used, for example, iS's specifically says, "I acknowledge and agree that I have consented to publication of my
ethnicity(ies) and gender as indicated below, but understand that other ethnicities or gender may be associated with  me by the Photographer / Filmmaker
and / or Assigns for descriptive purposes."

Not sure how the buyer is supposed to know which release is assigned to any image, given that some releases seem to be accepted by several agencies (from what I've read here).
Odd so many people are perfectly happy to sign that, but there you go.

« Reply #27 on: January 08, 2017, 19:38 »
+1
They should give her free dinner for a year

SpaceStockFootage

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« Reply #28 on: January 09, 2017, 03:56 »
0
Extreme example: A company has placed a GPS tag on you without you knowing and they are using the (anonymous) data to create an app to predict movements. 10 years later you find out and all they offer is 10 years worth standard salary for a voluntary test person... That is not how things work.

All they offer is between $250,000 and $1,000,000? Where do I sign up?

« Reply #29 on: January 09, 2017, 04:55 »
0
Extreme example: A company has placed a GPS tag on you without you knowing and they are using the (anonymous) data to create an app to predict movements. 10 years later you find out and all they offer is 10 years worth standard salary for a voluntary test person... That is not how things work.

All they offer is between $250,000 and $1,000,000? Where do I sign up?
You will find plenty of people who believe THEY already do this yeah I'd do it for $250K. Although this presumably would be a criminal matter i.e assault.

« Reply #30 on: January 09, 2017, 10:12 »
0
Extreme example: A company has placed a GPS tag on you without you knowing and they are using the (anonymous) data to create an app to predict movements.

That's not an extreme example, it is here already!  Tons of people are doing that right now, probably without realizing it with their mobile phones.  That's exactly how those traffic apps work that can tell you which routes are slowed by jams - they are tracking everyone's cell phone movements along highways.  With an iPhone I think you are automatically logged into that unless you specifically opt out.  And of course they pay you nothing.

« Reply #31 on: January 09, 2017, 14:11 »
0
How did using the image harm her? 

If I was a lawyer I'd go with the alcohol angle (apparently they comped in some alcohol in front of her that wasn't actually there). Seeing as it would be difficult to disprove, they could say stuff like... she's been invited to less events as people assume she's an alcoholic, she feels she's been overlooked for promotion as her employees think she has a drinking problem, her relationship has been tense since her husband found out she was drinking in the day etc etc.

LOL that would not wash in USA. it might work in a " religious country " where women are seen as harlot to be drinking. .. or maybe, just maybe in Ohio (??? mormon country,etc)..
but in a place like NY, etc.. where alcohol or drug are "household basics" it won't work.
in my opinion, that is.

the only good out of this is that it teaches big companies like this to tell them,
"silly silly, you thought you can be cheap and not hire a regular model ..
like those newspapers that only use readers' freebies and wire photos".
cost far less to have just paid a model.

« Reply #32 on: January 09, 2017, 19:30 »
0
Ask for that amount and you know you'll get nothing. Keep it under six figures and a big company like that might just settle to keep it out of the press but all an insane amount like that does is give Chipotle some free publicity and make them look like the good guys.

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #33 on: January 09, 2017, 19:46 »
0
How did using the image harm her? 

If I was a lawyer I'd go with the alcohol angle (apparently they comped in some alcohol in front of her that wasn't actually there). Seeing as it would be difficult to disprove, they could say stuff like... she's been invited to less events as people assume she's an alcoholic, she feels she's been overlooked for promotion as her employees think she has a drinking problem, her relationship has been tense since her husband found out she was drinking in the day etc etc.

LOL that would not wash in USA. it might work in a " religious country " where women are seen as harlot to be drinking. .. or maybe, just maybe in Ohio (??? mormon country,etc)..
but in a place like NY, etc.. where alcohol or drug are "household basics" it won't work.
in my opinion, that is.

the only good out of this is that it teaches big companies like this to tell them,
"silly silly, you thought you can be cheap and not hire a regular model ..
like those newspapers that only use readers' freebies and wire photos".
cost far less to have just paid a model.

I thought the US was one of the most "religious countries" on the planet?! But still, I'm sure it would wash. The lawyer will spin all the angles and religious or not, there are few countries where people look on alcoholics with respect and admiration... so it would make sense to go down that route.

ShadySue

  • There is a crack in everything
« Reply #34 on: January 09, 2017, 19:55 »
+2
How did using the image harm her? 

If I was a lawyer I'd go with the alcohol angle (apparently they comped in some alcohol in front of her that wasn't actually there). Seeing as it would be difficult to disprove, they could say stuff like... she's been invited to less events as people assume she's an alcoholic, she feels she's been overlooked for promotion as her employees think she has a drinking problem, her relationship has been tense since her husband found out she was drinking in the day etc etc.

LOL that would not wash in USA. it might work in a " religious country " where women are seen as harlot to be drinking. .. or maybe, just maybe in Ohio (??? mormon country,etc)..
but in a place like NY, etc.. where alcohol or drug are "household basics" it won't work.
in my opinion, that is.

the only good out of this is that it teaches big companies like this to tell them,
"silly silly, you thought you can be cheap and not hire a regular model ..
like those newspapers that only use readers' freebies and wire photos".
cost far less to have just paid a model.

I thought the US was one of the most "religious countries" on the planet?! But still, I'm sure it would wash. The lawyer will spin all the angles and religious or not, there are few countries where people look on alcoholics with respect and admiration... so it would make sense to go down that route.
Years ago, before micro, I was casually reading an article about releases and use of images (particularly relating to English law), and one specific example was a photo of a group of people outside a pub with glasses in their hands. They specifically said that even if the article was editorial, if there was a hint in the caption or article that they were all drinking alcohol, there would be grounds for a legal action, particularly if one or more of the people was known to be teetotal. (Presumably that would be the responsibility of the caption writer unless the photographer had described/keyworded the pic as such.)

« Reply #35 on: January 09, 2017, 20:09 »
+1
LOL that would not wash in USA. it might work in a " religious country " where women are seen as harlot to be drinking. .. or maybe, just maybe in Ohio (??? mormon country,etc)..
but in a place like NY, etc.. where alcohol or drug are "household basics" it won't work.
in my opinion, that is.

Surely you mean Utah?

Ohio is relatively laid back (by American standards) but Utah limits alcohol to 3.2% unless bars have hugely expensive and difficult to obtain licenses and only one shop in a chain can sell proper beer, wine, spirits etc. So there's only one Walmart in the whole of Utah that can sell wine and I seem to recall there are only around 70 liquor stores state wide. Lots of bars also don't let you have more than one drink on the table at a time and will literally stand there and wait for you to finish the dregs of the last beer before putting the next one down. Basically: I hate that state. Nice canyons, awful beer.

« Reply #36 on: January 10, 2017, 01:51 »
+1
How did using the image harm her? 

If I was a lawyer I'd go with the alcohol angle (apparently they comped in some alcohol in front of her that wasn't actually there). Seeing as it would be difficult to disprove, they could say stuff like... she's been invited to less events as people assume she's an alcoholic, she feels she's been overlooked for promotion as her employees think she has a drinking problem, her relationship has been tense since her husband found out she was drinking in the day etc etc.

LOL that would not wash in USA. it might work in a " religious country " where women are seen as harlot to be drinking. .. or maybe, just maybe in Ohio (??? mormon country,etc)..
but in a place like NY, etc.. where alcohol or drug are "household basics" it won't work.
in my opinion, that is.

the only good out of this is that it teaches big companies like this to tell them,
"silly silly, you thought you can be cheap and not hire a regular model ..
like those newspapers that only use readers' freebies and wire photos".
cost far less to have just paid a model.

I thought the US was one of the most "religious countries" on the planet?! But still, I'm sure it would wash. The lawyer will spin all the angles and religious or not, there are few countries where people look on alcoholics with respect and admiration... so it would make sense to go down that route.

Not to mention if the woman can claim to be a recovering addict in AA.  My brother's in Alcoholics Anymous and Narcotics Anonymous.  It would negatively affect his social life and maybe even his job to be photographed drinking.

I still think the suit is overblown, but the booze angle is the best shot they have.


« Reply #37 on: January 11, 2017, 15:58 »
+2
this is what I learned about this suit:

- the woman is not upset about her photo being used, she is upset that her photo has alcoholic beverages photoshopped in

- the image of her was shown hanging on the wall of at least 2 or 3 restaurants

- she first noticed it about 5 or 6 years after the photo was taken

- she is suing for around 10 years of the company's profits

- you cannot assume chipotle is using the image illegally. we haven't seen it yet. if it says something like "ACTUAL CUSTOMER" under the photo, then it is going to be 100% legal for them to use it, similar to an editorial use.

- the suit hasn't really gone to trial yet, it is in the pre-stages of the lawsuit

- based on what I read, it sounds like a frivolous lawsuit. the articles are withholding any key evidence that shows a violation of any law, the requested damages are ridiculous, and the comment about how she is only mad because of the alcohol, suggests they plaintiff is hiding something (such as a lack of merit)

« Reply #38 on: January 11, 2017, 17:58 »
+4
- you cannot assume chipotle is using the image illegally. we haven't seen it yet. if it says something like "ACTUAL CUSTOMER" under the photo, then it is going to be 100% legal for them to use it, similar to an editorial use.

Uh, no.

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #39 on: January 11, 2017, 18:43 »
+6
- you cannot assume chipotle is using the image illegally. we haven't seen it yet. if it says something like "ACTUAL CUSTOMER" under the photo, then it is going to be 100% legal for them to use it, similar to an editorial use

It's advertising. Marketing Materials. There's no 'editorial use' when it comes to that. Otherwise, any restaurant that has a celebrity pop in... they'd just take a picture of them, or film them, and stick that in their adverts. And that's definitely not allowed.

Unless you know the answer for certain, you should probably stick to threads on cameras that have the ability to generate clouds, or limit the amount of ultraviolet radiation emitted by stars.

Shelma1

« Reply #40 on: January 11, 2017, 19:10 »
+3

- the woman is not upset about her photo being used, she is upset that her photo has alcoholic beverages photoshopped in

The articles I read said she was upset about having her picture taken; being asked to sign a release; the restaurants using her image anyway; having her hair modified; having other people photoshopped into the image; having alcoholic drinks photoshopped into the image.

- you cannot assume chipotle is using the image illegally. we haven't seen it yet. if it says something like "ACTUAL CUSTOMER" under the photo, then it is going to be 100% legal for them to use it, similar to an editorial use.

You can't use people's images in advertising without permission. In fact, this entire situation is mind-boggling to me: A large corporation apparently hiring a photographer to shoot people without their knowledge, then using images without a model release...it's just not done. Even if a company wants to use "real customers," they ask the customers if they'd like to be in their ads (or customers sign an agreement when they enter a sweepstakes, for example, that allows the company to use their images for marketing purposes) and then they set up a shoot with hair, makeup, proper lighting and food design so that the customer, the restaurant and the food look good.

The whole situation is just really weird.

Jafo2016

« Reply #41 on: January 13, 2017, 11:52 »
0

- the woman is not upset about her photo being used, she is upset that her photo has alcoholic beverages photoshopped in

The articles I read said she was upset about having her picture taken; being asked to sign a release; the restaurants using her image anyway; having her hair modified; having other people photoshopped into the image; having alcoholic drinks photoshopped into the image.

- you cannot assume chipotle is using the image illegally. we haven't seen it yet. if it says something like "ACTUAL CUSTOMER" under the photo, then it is going to be 100% legal for them to use it, similar to an editorial use.

You can't use people's images in advertising without permission. In fact, this entire situation is mind-boggling to me: A large corporation apparently hiring a photographer to shoot people without their knowledge, then using images without a model release...it's just not done. Even if a company wants to use "real customers," they ask the customers if they'd like to be in their ads (or customers sign an agreement when they enter a sweepstakes, for example, that allows the company to use their images for marketing purposes) and then they set up a shoot with hair, makeup, proper lighting and food design so that the customer, the restaurant and the food look good.

The whole situation is just really weird.

Weird, strange and a messy mistake. If it's true.

The photographer gave the photos to Chipotle mistake one. They used it without looking for the release, mistake two. One version says she was asked to sign a release another says she was never asked? Now it's a composite with her and others? This could get more interesting.

How can you tell a glass of beverage on a table is alcoholic? I'd assume that means a bottle of beer with a label? Unless someone can analyze the contents, the shape of a glass proves nothing. Legal works both ways.

She says she discovered the use a long time ago, years ago, but she did nothing until now? There are time limits from discovery to making a claim. She might be out of luck.

Allegedly this is her in the photo and all these claims keep changing. I hope we see the end instead of settled with NDA and sealed.

This sounds like a money grab frivolous lawsuit. The amount is a laugh. Is her lawyer one of those who advertises on TV personal injury, big numbers.

« Reply #42 on: January 16, 2017, 10:36 »
0
you said: "You can't use people's images in advertising without permission"

we do not yet know how the image was used, only that it was hanging on the wall, and there was some photoshopping done. that does not preclude legal uses.

there is something wrong with this case. if they had solid evidence of wrongdoing, it would have been in the new reports and press releases, no where does it say the photo was used in advertising.

I tried to read the deposition, to see if it stated how it was being used, but the deposition was not available for free so I did not read it.

« Reply #43 on: January 16, 2017, 10:37 »
+2
A poster on the wall of a commercial business promoting various aspects of that business is advertising.   Pretty simple.

Shelma1

« Reply #44 on: January 16, 2017, 10:44 »
+1
you said: "You can't use people's images in advertising without permission"

we do not yet know how the image was used, only that it was hanging on the wall, and there was some photoshopping done. that does not preclude legal uses.

there is something wrong with this case. if they had solid evidence of wrongdoing, it would have been in the new reports and press releases, no where does it say the photo was used in advertising.

I tried to read the deposition, to see if it stated how it was being used, but the deposition was not available for free so I did not read it.

Thanks for explaining what advertising is to me. I've only been in the business for 35 years, so as you can imagine I was pretty unsure about it.

« Reply #45 on: January 16, 2017, 10:59 »
0
you said: "Thanks for explaining what advertising is to me."

all photography is not advertising. in addition, I have seen the photo and it does not look like advertising to me. in fact, the woman is not recognizable and she will probably lose the lawsuit.

in fact, she states in the lawsuit that she is looking at the camera, but that she did not know the camera was there, which makes no sense.

again,I have seen the photo and it is not advertising. it does not promote any product or service.

the photo has 3 people in it. 2 of them, you can only see from behind. the woman in question is not recognizable. being able to self-recognize yourself does not grant you any rights, regardless of what stock agencies lead you to believe.

the photo is not a photo of her, it is a photo of the restaurant and she happens to be in the photo. she will lose this case.

last of all, the photo was taken from outside the restaurant and she is seen sitting behind the window at a table, with her hand covering her face. she is a minor portion of the photo. the average person would never recognize her, and it might not even be her.

she does not even account for 5% of the photo, maybe she is even just 1% of the actual photo (her forehead and arms).

- the photo is clearly not an ad. it is a photo of the restaurant
- being in the photo does not grant her any rights
- being able to self identify herself in the photo does not grant her any rights under US law
- the majority of the face is covered by the woman's hand
- it might not even be her, and she will never be able to prove it was her
- based on her testimony, I do not believe she is the woman in the photo

she will lose this case.

« Reply #46 on: January 16, 2017, 11:21 »
+1
"again,I have seen the photo and it is not advertising. it does not promote any product or service."

Lol, it wouldn't be on the wall or in the restaurant if it wasn't serving a purpose promoting the restaurant.

If you've seen it, let us in on it.

Shelma1

« Reply #47 on: January 16, 2017, 11:30 »
0
you said: "Thanks for explaining what advertising is to me."

all photography is not advertising. in addition, I have seen the photo and it does not look like advertising to me. in fact, the woman is not recognizable and she will probably lose the lawsuit.

in fact, she states in the lawsuit that she is looking at the camera, but that she did not know the camera was there, which makes no sense.

again,I have seen the photo and it is not advertising. it does not promote any product or service.

the photo has 3 people in it. 2 of them, you can only see from behind. the woman in question is not recognizable. being able to self-recognize yourself does not grant you any rights, regardless of what stock agencies lead you to believe.

the photo is not a photo of her, it is a photo of the restaurant and she happens to be in the photo. she will lose this case.

last of all, the photo was taken from outside the restaurant and she is seen sitting behind the window at a table, with her hand covering her face. she is a minor portion of the photo. the average person would never recognize her, and it might not even be her.

she does not even account for 5% of the photo, maybe she is even just 1% of the actual photo (her forehead and arms).

- the photo is clearly not an ad. it is a photo of the restaurant
- being in the photo does not grant her any rights
- being able to self identify herself in the photo does not grant her any rights under US law
- the majority of the face is covered by the woman's hand
- it might not even be her, and she will never be able to prove it was her
- based on her testimony, I do not believe she is the woman in the photo

she will lose this case.

Thanks for re-explaining. 35 years of creating advertising for major international brands, working with top photographers, illustrators, editors and directors and I was so clueless!

All photographs are not advertising! Who knew?


« Reply #49 on: January 16, 2017, 11:42 »
+1
You said: "I was so clueless"

I agree.

More info on this photo:

- you cannot tell the gender, race, age, skin color, etc of the person in the photo

- you cannot see any details such as eye color, wrinkles, strands of hair

- you can't see the mouth, nose, ears, or cheeks

- you can only see the shape of the hair, forehead, and eyes, without a single detail within.

- the eyes are just 2 oval dark spots. no pupil visible, no eye color, no white part

- the hair is a dark shape with no detail

- the forehead is overexposed and you just see the shape

- it is not an ad. it does not have any price, quality, call to action, product, or service

- it is hard to believe that the alcoholic beverages and other items were photoshopped into the image

it is a frivolous lawsuit


 

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