pancakes

MicrostockGroup Sponsors


Author Topic: Woman suing Chipotle and photographer $2 billion over use of photo  (Read 27040 times)

0 Members and 1 Guest are viewing this topic.

« on: January 06, 2017, 11:09 »
+2
Here's a reason why the agencies might be over careful with releases:

http://www.abcactionnews.com/news/national/woman-suing-chipotle-for-more-than-2-billion-over-use-of-photo

That is scary - way over my business insurance!  Apparently the image was sold and used in advertising without a release - not very bright.  The amount of course is ridiculous but I assume some lawyers are seeing deep pockets and going for gold.  Fortunately nobody's ever been sued by an isolated tomato AFAIK ...


« Reply #1 on: January 06, 2017, 22:30 »
+4
This is why I won't sell a photo of a person without a release.  Its possible that the photog sold it as editorial.  In that case only Chipotle would be at fault.  That said, this woman is delusional if she thinks a jury will give her anywhere near that amount.

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #2 on: January 06, 2017, 23:15 »
+2
Only in America!

angelawaye

  • Eat, Sleep, Keyword. Repeat

« Reply #3 on: January 06, 2017, 23:22 »
+1
Honestly, I'm afraid to hire any model because I'm so afraid they will sue me when their photo gets misused and it happens! Even opted out of "sensitive use", they (buyers) still do what they want.

But the photographer should have never submitted the photo as commercial without the release.

« Reply #4 on: January 07, 2017, 07:09 »
+4
a few points:

- the photographer seems to have sold the photo directly to chipotle and not through a stock media agency

- the lawsuit amount ($2 billion) is for all chipotle profits during the time period even though the photo was only used 2x in 2 or 3 local markets

- it doesn't say how the photo was used (promotional materials could mean anything) so the article does not mention whether the use was legal or not

the case number is 1:16-cv-03175 Caldwell v. Chipotle Mexican Grill, Inc. et al
« Last Edit: January 07, 2017, 07:16 by unnonimus »

memakephoto

« Reply #5 on: January 07, 2017, 09:53 »
+2
Honestly, I'm afraid to hire any model because I'm so afraid they will sue me when their photo gets misused and it happens! Even opted out of "sensitive use", they (buyers) still do what they want.

But the photographer should have never submitted the photo as commercial without the release.

Where does the article mention a stock photo agency? What the article says is that the photographer was inside the Chipotle's restaurant shooting photos of patrons, with or without their knowledge, and asking them to sign release forms on their way out. He would have had to have Chipotle's permission to shoot inside the restaurant (otherwise staff would have confronted him) so it suggests he was hired by the company.

My personal guess at the most plausible explanation is that the shot of this woman was accidentally included in a batch of shots vetted as safe for use by the company's legal department and sent to the design firm that handles their promotional material. For whatever reason they chose to use it thinking it was safe.

As for the amount of the suit, whenever anyone sues anyone else they always ask for more than is reasonable. The civil law process is more like haggling than law. Plaintiff asks for 2 billion, company counter offers 100 thousand and they go back and forth until they reach a sum they both find acceptable and they settle. That's what will happen here. The woman is after money and it will never see the inside of a courtroom.

That sad thing is the photog is probably the one that will take the blame and end up unemployed.

angelawaye

  • Eat, Sleep, Keyword. Repeat

« Reply #6 on: January 07, 2017, 13:20 »
0
My apologies (above), I thought it was submitted to an agency ...

FlowerPower

« Reply #7 on: January 07, 2017, 14:31 »
+2
Honestly, I'm afraid to hire any model because I'm so afraid they will sue me when their photo gets misused and it happens! Even opted out of "sensitive use", they (buyers) still do what they want.

But the photographer should have never submitted the photo as commercial without the release.

Double agree + +

We can't control misuse, but we need to fear it. Photographer thought he could make a sale by cheating. Sounds like some microstock who will do anything for a quarter. We wonder why agencies have so many restrictions that don't make sense or aren't same as the law. This is why.

« Reply #8 on: January 07, 2017, 19:58 »
0
before my point, i like to say it was both the mistake or negligence of photographer and chipotle.
but the amount the lady is suing is debatable. it would make sense if she were Angelina Jolie, etc..
and that she brought in big profits for Chipotle with her image of her as a customer.

but let's say chipotle produced proof that they never made a largest profit after her photo was used.. iow, the business never made more than it did last year, or maybe even last five years,etc..
i doubt if the judge would award her anything.

just my layman's opinion. but then again, in USA anything is possible, which is why they sue you even for a slipping on a banana peel, or had an accident because a snail walked in your way LOL

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #9 on: January 07, 2017, 19:59 »
+3
How do you know they did submit it as commercial without a license? They may be employed directly by the company, they handed over all the shots and made it specifically clear there was no release for the lady in that shot. Maybe, maybe not... but it's impossible to say for certain if the photographer was at fault.

« Reply #10 on: January 08, 2017, 02:42 »
+1
before my point, i like to say it was both the mistake or negligence of photographer and chipotle.
but the amount the lady is suing is debatable. it would make sense if she were Angelina Jolie, etc..
and that she brought in big profits for Chipotle with her image of her as a customer.

but let's say chipotle produced proof that they never made a largest profit after her photo was used.. iow, the business never made more than it did last year, or maybe even last five years,etc..
i doubt if the judge would award her anything.

just my layman's opinion. but then again, in USA anything is possible, which is why they sue you even for a slipping on a banana peel, or had an accident because a snail walked in your way LOL
In a fair world I'd agree id award her model fees at best......its not because of her face in particular that people go there but I guess the company might just pay a few thousand for her to go away......

« Reply #11 on: January 08, 2017, 05:34 »
+5
In a fair world I'd agree id award her model fees at best......

In what way is that fair? If the only punishment for doing stuff without permission would be to pay what it would cost to get permission no one in the entire world would pay for anything...

Anyway, of course she won't get $2 billion - you always aim incredibly high to get headlines and a nice settlement. She could get $1 million or so.
« Last Edit: January 08, 2017, 06:08 by increasingdifficulty »

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #12 on: January 08, 2017, 06:06 »
0
I'd take it to court, ask her if she truly believes that all profits were as a result of her photo... and when she says 'yes', I'd concede and give her 2.2bn. I would then immediately launch a counter-claim making it clear that if her image resulted in all profits, then surely it also resulted in all loses as well. I'd then get some creative accounting on the go for shrinkage, theft, depreciation of assets, increase in costs, amortization etc so that it comes to 2.3bn.

A bit risky, but hey... I don't own the place, so it's not like it would happen!


« Reply #13 on: January 08, 2017, 06:58 »
0
In a fair world I'd agree id award her model fees at best......

In what way is that fair? If the only punishment for doing stuff without permission would be to pay what it would cost to get permission no one in the entire world would pay for anything...

Anyway, of course she won't get $2 billion - you always aim incredibly high to get headlines and a nice settlement. She could get $1 million or so.
Because I'd be taking account the ridiculous amount she's suing for and the waste of court time...should really be settled out of court if the company make a reasonable offer. The company are no doub't already racking up legal fees and risk being awarded costs. I think paying model fees at top end "supermodel" rates would be fair unless the picture is somehow demeaning and degrading.
« Last Edit: January 08, 2017, 07:28 by Pauws99 »

Shelma1

  • stockcoalition.org
« Reply #14 on: January 08, 2017, 07:10 »
+3
I'd take it to court, ask her if she truly believes that all profits were as a result of her photo... and when she says 'yes', I'd concede and give her 2.2bn. I would then immediately launch a counter-claim making it clear that if her image resulted in all profits, then surely it also resulted in all loses as well. I'd then get some creative accounting on the go for shrinkage, theft, depreciation of assets, increase in costs, amortization etc so that it comes to 2.3bn.

A bit risky, but hey... I don't own the place, so it's not like it would happen!

Really. So in your mind it's OK not only to take people's pictures on the sly and use them without permission, but also to drag them through court for years to make sure they get no money and are made to suffer financial losses by having to hire attorneys to represent them.

Nice.

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #15 on: January 08, 2017, 09:50 »
+1
If she'd requested a reasonable amount of money, then no, that probably wouldn't be fair. But the excessive amount she's asking for is ridiculous and pretty much disgusting. It's so far from the reality of what she should be getting as compensation, that she just loses all credibility for me, and she's basically taking the p**s.

I was joking of course. In reality, I would pay to make her go away.

Permanently ;)

« Reply #16 on: January 08, 2017, 11:56 »
0
Chipotle and possibly the photographer are obviously in the wrong here, but the image apparently was not used in a defamatory way so I don't think she has grounds for much of a suit, other than to have them stop using the image.  How did using the image harm her?  Did she lose any money over it?  Lose her job?  Did her spouse find out she was clandestinely eating at Chipotles and divorce her?  Unless she can prove using the image somehow harmed her then I think she should be due normal modeling fees and some small additional amount for her trouble but that's it.  Apparently the lawyer representing her thinks they can get more so are going for big numbers, hoping Chipotles will settle to make it go away.  And they probably will, especially after another recent lawsuit against Chipotles because their supposedly 300-calorie meal made people feel too full (probably because they were really over 900 calories).  I think companies should be held responsible but the amounts are ridiculous - it's just a big racket for lawyers.  It will be interesting to see how this photography one plays out

BTW, the calorie lawsuit is a class action that they want to apply to anyone who has eaten at Chipotles during the past four years.  I don't think I've been to one the past four years so can't apply - I stopped going there after my first visit when I found out that one of the things they don't have is any chipotle in their salsas.  Talk about false advertising!  If I was a Millenial I would have filed a lawsuit over my great disappointment at finding out they don't actually sell anything containing their namesake spice.  Of course, being from a different generation I solved that problem the old-fashioned way by just not going there any more instead.

« Reply #17 on: January 08, 2017, 12:05 »
0
Yep to me the clue is in the word "Damages" but there seem to be some big bucks to be made in the US on these type of cases

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #18 on: January 08, 2017, 12:40 »
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.

« Reply #19 on: January 08, 2017, 12:44 »
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.
Yeah the alcohol slant was an interesting one........

« Reply #20 on: January 08, 2017, 12:45 »
0
Chipotle and possibly the photographer are obviously in the wrong here, but the image apparently was not used in a defamatory way so I don't think she has grounds for much of a suit, other than to have them stop using the image. 


That's the entire point of using a release.  You're not allowed to just use any image you like of a non-released person for promotional usage until you get caught and then you just have to stop.  http://www.dmlp.org/legal-guide/using-name-or-likeness-another

« Reply #21 on: January 08, 2017, 14:01 »
+4
Do you seriously think you have to lose your job, get kicked out of your apartment etc. for it to be considered damages?

She was made the face of Chipotle without consent - that's the damage! Just because she didn't lose her job it doesn't make it right. And regarding the enormous amount, sure it's ridiculous, but the only thing that these companies understand is money. You can only hurt them with money. It's the one and only way to prevent unethical behavior.

Some (most) people don't want to be models and seen in advertising. Saying they should just be given a model payment is just ridiculous and an insult...

---

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.

---

Here's another good example of using a picture in advertising without consent: http://petapixel.com/2010/04/10/greek-man-sues-swedish-company-over-turkish-yogurt/

Thankfully, the man was awarded more than a model fee...
« Last Edit: January 08, 2017, 14:10 by increasingdifficulty »

« Reply #22 on: January 08, 2017, 15:27 »
+1
"The face of Chipolata" as far as I can see she was on a couple of leaflets hardly the equivalent of Ronald McDonald anyway I guess that what courts are for. What was the outcome of the case you posted btw?

« Reply #23 on: January 08, 2017, 17:18 »
0
They settled. He got around $190,000.
« Last Edit: January 08, 2017, 17:20 by increasingdifficulty »

« Reply #24 on: January 08, 2017, 17:40 »
0
Thanks good result but his face was on the front of every one of their pots so upper end I guess


 

Related Topics

  Subject / Started by Replies Last post
36 Replies
37074 Views
Last post September 23, 2013, 18:09
by ShadySue
1 Replies
2408 Views
Last post December 18, 2013, 23:41
by tickstock
4 Replies
4831 Views
Last post January 05, 2014, 14:24
by Red Dove
99 Replies
24473 Views
Last post November 23, 2016, 14:55
by CJH Photography
0 Replies
3701 Views
Last post June 30, 2017, 10:41
by JetCityImage

Sponsors

Mega Bundle of 5,900+ Professional Lightroom Presets

Microstock Poll Results

Sponsors