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Author Topic: Upset model  (Read 7871 times)

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« on: November 09, 2010, 05:58 »
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One of my stock models is extremely upset, threatening legal action as he has found his photo used by a 'hair replacement' clinic and his photo has been doctored to show a receding hairline and patches of baldness. His friends have seen it and are rather amused - he on the other hand is seriously annoyed and is threatening to sue us.

Does this break a site's T&C, to use a photo in this way and to doctor the image. I am not sure which site downloaded it but I need to get some advice from you guys before I go after the hairloss company.

Thanks in advance

Phil


ShadySue

« Reply #1 on: November 09, 2010, 06:06 »
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One of my stock models is extremely upset, threatening legal action as he has found his photo used by a 'hair replacement' clinic and his photo has been doctored to show a receding hairline and patches of baldness. His friends have seen it and are rather amused - he on the other hand is seriously annoyed and is threatening to sue us.

Does this break a site's T&C, to use a photo in this way and to doctor the image. I am not sure which site downloaded it but I need to get some advice from you guys before I go after the hairloss company.

Thanks in advance

Phil

If bought from ISTOCK, it's perfectly within the acceptable uses.
The MR states clearly, "... I agree that the Content may be combined
with other images, text, graphics, film, audio, audio-visual works; and
may be cropped, altered or modified..."


FOTOLIA:
The Model hereby releases and indemnifies the Photographer, and the Photographers agents and
representatives, licensees and sublicensees, assigns, heirs and successors, from and against all claims
, expenses
(including attorney fees) or other liability arising from and against any and all uses of the Photographs, including,
without limitation, any claims or actions based on libel or slander or other defamation, right of privacy or false
light, right of publicity, or blurring or distortion or alteration
whether or not intentional.
The Model and Photographer each hereby warrant that he or she has read this Agreement prior to execution, and is fully familiar with the contents of this Agreement.

SHUTTERSTOCK model release:
The Photographers rights include, but are not limited to, the rights,
in perpetuity, to:
Use, re-use, publish, and re-publish the Content; Alter, modify or otherwise
change the Content in any manner the Photographer desires; Combine the
Content with textual matter and/or with other pictures and/or media; and,
Use the Content for illustration, promotion, art, editorial, advertising, trade,
publishing, or any other purpose whatsoever.
I hereby release, discharge, and agree to hold harmless the Photographer,
the Photographers heirs, legal representatives and assigns, and all persons
acting under the Photographers authority or those for whom he/she is
acting, from any liability by virtue of any use of the Content or any changes
or alterations made thereto.
(Interesting that that seems to cover the photographer's rights, but not the buyer's rights. I assume the latter are covered in the acceptable use policy. You'll need to check that for yourself.

Indeed, there are clauses on each of these MRs which vaguely imply that the images should not be used to expose the model to "scandal, ridicule, reproach, scorn and indignity" (that from Dreamstime's MR) but these are deliberately left extremely vague and have virtually no legal standing.
Far worse uses (IMO) brought to light on the iStock forums have been deemed 'fair use'.
iStock's Content License agreement state:
"use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; (IMO, this happens constantly) or (b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself; "

The 'get out' word is 'reasonably'. Is there a legal definition for 'reasonably'?


HOWEVER:
Depending on the country of use, that use may be against the advertising standards or laws. For instance, in the UK, that faking of an advert would not be allowed (adverts here must be legal, decent, honest and truthful, but don't ask me the difference between honest and truthful - for example Olay was outed last year for 'airbrushing' an image of Twiggy http://tinyurl.com/y8u7g9b in one of their ads), but I've learned since being on Micro that many (most? all?) other countries aren't so strict.
I doubt if pursuing this line would financially benefit your model, though it might cause the adverts to be withdrawn.
« Last Edit: November 09, 2010, 07:02 by ShadySue »

sc

« Reply #2 on: November 09, 2010, 06:25 »
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From Istock - I think the use is questionable and you have cause to have them cease and desist.
Most site have this same or similar clause.

4. Standard License Prohibitions

7.  use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself;

http://www.istockphoto.com/license.php

RT


« Reply #3 on: November 09, 2010, 06:28 »
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Irrelevant of whichever sites T&C that it was licensed through I'd say that this falls within 'defamation of character' of which you should have a clause on the model release that you uploaded to the agency, therefore no it is not allowed.

As you don't know which site it was downloaded through I suggest you contact the hairloss company and explain the above.

Microbius

« Reply #4 on: November 09, 2010, 06:33 »
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From Istock - I think the use is questionable and you have cause to have them cease and desist.
Most site have this same or similar clause.

4. Standard License Prohibitions

7.  use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself;

http://www.istockphoto.com/license.php

Agree with the other posts here. I would say it clearly contradicts the part of IS clause highlighted by sc. You can't argue that the use isn't "unflattering", I mean if it wasn't the hair loss company would be out of business!
First step is to contact the hair loss company and find out where they purchased it from. Then get the agency involved. I should think it's the hairloss company at fault rather than you or the agency so hope that the model doesn't have grounds to come after you!

ShadySue

« Reply #5 on: November 09, 2010, 06:47 »
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Can anyone remember the URI for the thread (on iStock) with the issue of the photo of a nice old man sitting outside his garden shed. He was cloned out of that pic and put into one from some sort of party, where he seemed to be leering while looking up girls skirts (whirling out while they were dancing around him) and there was a tray with (?condoms or dildos?) being passed around.
Anyway, although I and a few others were shocked at that use, and would have been mortified if it had been my Dad (or indeed any model I might have used [so I don't]), that use was considered to be OK. Other contributors were quite nasty and asked if the old man was some sort of prude.
There was another photo of a young woman eating in a classy restaurant with a (mostly unseen) bloke, which appeared to illustrate an article about escort agencies. Although the piece didn't exactly say, "the photo features an escort", it also didn't say 'posed by model'. That model was also very upset as the article appeared in a paper/mag in her own town where she worked as an educator. That was also deemed an OK use, though to me, the Content Agreement clearly says that this use would require an explanation something like 'posed by model'.
It seems like that word 'reasonably', as mentioned above, is used as a let out by iStock to avoid having to hassle their buyers.
However, whichever agency it was bought from, it will be very interesting to hear the feedback you get.
Please post back your reply and any action.
« Last Edit: November 09, 2010, 06:50 by ShadySue »

« Reply #6 on: November 09, 2010, 07:00 »
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I would guess that Shady Sue's interpretation is the correct one.

As a member of the public, you might have a case if you wanted to take on the hair-loss company for misleading you by showing a fabricated example of the benefits of their product. However, I don't think your model has a case. He's signed a release that clearly states the image may be modified and going bald is a fact of life, not a defamation of someone's character.

RT


« Reply #7 on: November 09, 2010, 07:11 »
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He's signed a release that clearly states the image may be modified and going bald is a fact of life, not a defamation of someone's character.

Of course it's a defamation of his character, going bald might be a fact of life but if he isn't going bald and this image portrays that he is then it's defamation. It's a fact of life that some people are gay, some are criminals, some are cross dressers it doesn't mean that you can portray somebody as that if they're not.

As for the two examples that shadysue has given, it doesn't matter whether iStock 'considered' those uses to be 'OK', when we send a photo with a release the agency accepts the terms of that release, they cannot make the decision that it's 'OK' if those terms have been broken it's for the courts to decide.

« Reply #8 on: November 09, 2010, 07:22 »
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I would guess that Shady Sue's interpretation is the correct one.

As a member of the public, you might have a case if you wanted to take on the hair-loss company for misleading you by showing a fabricated example of the benefits of their product. However, I don't think your model has a case. He's signed a release that clearly states the image may be modified and going bald is a fact of life, not a defamation of someone's character.

I remember that case, Shady Sue. Yeah, a lot of contributors thought that was a great photo. I thought it was rather unflattering for the guy cloned in and while not pornographic, certainly edged close and certainly was sexual content. I could have labeled it as objectionable.

But I agree with sue and mark, I don't think hair loss qualifies. But I don't see how you, the photographer, could be liable for anything to do with this case.

« Reply #9 on: November 09, 2010, 07:23 »
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He's signed a release that clearly states the image may be modified and going bald is a fact of life, not a defamation of someone's character.

Of course it's a defamation of his character, going bald might be a fact of life but if he isn't going bald and this image portrays that he is then it's defamation. It's a fact of life that some people are gay, some are criminals, some are cross dressers it doesn't mean that you can portray somebody as that if they're not.

There is clearly a difference between criminal and bald. For something to be defamatory it has to be 1) untrue and 2) negative. I guess most people perceive going bald as negative (although in different way than being criminal). So it may be defamatory but I doubt it is as clear as you make it sound.

« Reply #10 on: November 09, 2010, 07:26 »
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He's signed a release that clearly states the image may be modified and going bald is a fact of life, not a defamation of someone's character.

Of course it's a defamation of his character, going bald might be a fact of life but if he isn't going bald and this image portrays that he is then it's defamation. It's a fact of life that some people are gay, some are criminals, some are cross dressers it doesn't mean that you can portray somebody as that if they're not.

As for the two examples that shadysue has given, it doesn't matter whether iStock 'considered' those uses to be 'OK', when we send a photo with a release the agency accepts the terms of that release, they cannot make the decision that it's 'OK' if those terms have been broken it's for the courts to decide.

If this model thinks he's being defamed because he's being used in a hair loss ad, then he clearly has made a bad choice of being a model.

« Reply #11 on: November 09, 2010, 07:33 »
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Quote
He's signed a release that clearly states the image may be modified and going bald is a fact of life, not a defamation of someone's character.

Of course it's a defamation of his character, going bald might be a fact of life but if he isn't going bald and this image portrays that he is then it's defamation. It's a fact of life that some people are gay, some are criminals, some are cross dressers it doesn't mean that you can portray somebody as that if they're not.

As for the two examples that shadysue has given, it doesn't matter whether iStock 'considered' those uses to be 'OK', when we send a photo with a release the agency accepts the terms of that release, they cannot make the decision that it's 'OK' if those terms have been broken it's for the courts to decide.

He's not being portrayed as going bald; he's being portrayed as someone who used to be going bald -- a situation which, if we we're dumb enough to believe the examples in the ad, has been rescued by the product or treatment the advertiser offers.

Besides, if the model can't laugh with his mates on this one and has to go and sulk in the corner, he's got no character to defame in the first place.

« Reply #12 on: November 09, 2010, 07:36 »
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I think, but I'm not a lawyer mind you, there are two different issues here.

First.  The model has no legal grounds for any suit.  The standard stock releases cover the photographer on this issue.

Second.  The photographer or agency may have legal grounds to go after the advertiser for violating the usage agreement if you know which contract is in force.  Honestly, I don't see that happening. 

ShadySue

« Reply #13 on: November 09, 2010, 07:38 »
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But I don't see how you, the photographer, could be liable for anything to do with this case.
That's for sure.
Unless somehow you didn't let the model read the MR before they signed it. But even then, they'd have to prove it, and they'd surely be cross-examined as to why they'd signed something without reading it.

ShadySue

« Reply #14 on: November 09, 2010, 07:39 »
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Of course it's a defamation of his character, going bald might be a fact of life but if he isn't going bald and this image portrays that he is then it's defamation.
Defamation refers to character. This ad is misrepresentation (of truth).

molka

    This user is banned.
« Reply #15 on: November 09, 2010, 08:03 »
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Overreaction, this isn't really big deal at all. Anyways, he signed an MR on pictures for possible ad use... ads are generally phoney and demagogic.

RT


« Reply #16 on: November 09, 2010, 08:15 »
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Of course it's a defamation of his character, going bald might be a fact of life but if he isn't going bald and this image portrays that he is then it's defamation.
Defamation refers to character. This ad is misrepresentation (of truth).

Without seeing the ad you can't say it's misrepresentation, if the image of this guy had a speech bubble saying " I use to be bald but thanks to xxxxxx I now have a full head of hair " that would be  misrepresentation, in this case it sounds like they're just portraying a guy as going bald which isn't misrepresentation because people do go bald, the unfortunate issue here is that the person they're using isn't bald and he has suffered as the result of their altering his image, which would fall under defamation of character.

It worries me that so many people have no idea about the law and what can and cannot be done with stock photos, it also worries me that so many people rely on the comments made by stock agencies and presume them to be legal.

Having worked in law I can tell you 100% that from what the OP has stated it would fall under defamation of character because by legal definition it is, and I can also tell you that if this guy decides to persue the matter he will win, and also that he will sue the photographer because he signed a contract with the photographer (the release) and therefore the legal process begins here, now the photographer will have a legal defence because presumably he has a clause in the release that he uploaded to the agency that excludes any defamatory use of the person in the image, so therefore the process moves onto the agency and then down the line until it reaches the stage whereby somebody is identified as having breached the defamatory clause.

To the OP, if you haven't got it yet make it your first priority to get legal insurance, I take it your model release has a defamatory clause, presuming as such you have nothing to worry about as you're in the clear but if this guy does decide to take the legal route you will be involved initially. My advice to you would be to speak to the model and attempt the amicable route by getting him to allow you to contact the hairloss company seeking some form of 'out of court' settlement, the reason for this is because if it did go the legal route you may not end up out of pocket eventually but you'll spend a lot of time in the process, either way make sure all of your communication with the model from hereon in is recorded in some way.


« Reply #17 on: November 09, 2010, 08:25 »
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snip
Without seeing the ad you can't say it's misrepresentation, if the image of this guy had a speech bubble saying " I use to be bald but thanks to xxxxxx I now have a full head of hair " that would be  misrepresentation, in this case it sounds like they're just portraying a guy as going bald which isn't misrepresentation because people do go bald, the unfortunate issue here is that the person they're using isn't bald and he has suffered as the result of their altering his image, which would fall under defamation of character.

It worries me that so many people have no idea about the law and what can and cannot be done with stock photos, it also worries me that so many people rely on the comments made by stock agencies and presume them to be legal.

Suffered? Oh for gosh sakes, his friends razz him! The guy's looking for an easy pay day. He signed a release that says his image can be altered. Period. End of story. In fact, there is no story.

« Reply #18 on: November 09, 2010, 08:39 »
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Quote
Of course it's a defamation of his character, going bald might be a fact of life but if he isn't going bald and this image portrays that he is then it's defamation.
Defamation refers to character. This ad is misrepresentation (of truth).

Without seeing the ad you can't say it's misrepresentation, if the image of this guy had a speech bubble saying " I use to be bald but thanks to xxxxxx I now have a full head of hair " that would be  misrepresentation, in this case it sounds like they're just portraying a guy as going bald which isn't misrepresentation because people do go bald, the unfortunate issue here is that the person they're using isn't bald and he has suffered as the result of their altering his image, which would fall under defamation of character.

It worries me that so many people have no idea about the law and what can and cannot be done with stock photos, it also worries me that so many people rely on the comments made by stock agencies and presume them to be legal.

Having worked in law I can tell you 100% that from what the OP has stated it would fall under defamation of character because by legal definition it is, and I can also tell you that if this guy decides to persue the matter he will win, and also that he will sue the photographer because he signed a contract with the photographer (the release) and therefore the legal process begins here, now the photographer will have a legal defence because presumably he has a clause in the release that he uploaded to the agency that excludes any defamatory use of the person in the image, so therefore the process moves onto the agency and then down the line until it reaches the stage whereby somebody is identified as having breached the defamatory clause.

To the OP, if you haven't got it yet make it your first priority to get legal insurance, I take it your model release has a defamatory clause, presuming as such you have nothing to worry about as you're in the clear but if this guy does decide to take the legal route you will be involved initially. My advice to you would be to speak to the model and attempt the amicable route by getting him to allow you to contact the hairloss company seeking some form of 'out of court' settlement, the reason for this is because if it did go the legal route you may not end up out of pocket eventually but you'll spend a lot of time in the process, either way make sure all of your communication with the model from hereon in is recorded in some way.

I've got a mate who makes animal-shaped fluffy slippers. There's a dog, a cow, a fog, a monkey and a sheep. They're all made out of wool apart from the sheep, which is made out of a synthetic material. Do you think any of these animals have a case because I think they've all got more chance of suing someone than this geezer?

RT


« Reply #19 on: November 09, 2010, 08:52 »
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I've got a mate who makes animal-shaped fluffy slippers. There's a dog, a cow, a fog, a monkey and a sheep. They're all made out of wool apart from the sheep, which is made out of a synthetic material. Do you think any of these animals have a case because I think they've all got more chance of suing someone than this geezer?

The very fact that you've come out with this bizarre analogy sums up your knowledge on the subject. It's people like you that use to make people like me very rich.

There's a saying in the legal community - "Lawyers don't make the law, they make money from people who don't understand it"
« Last Edit: November 09, 2010, 08:55 by RT »

« Reply #20 on: November 09, 2010, 09:24 »
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If this model thinks he's being defamed because he's being used in a hair loss ad, then he clearly has made a bad choice of being a model.

I have to agree.  Besides the IS section 4.7.b does not state an "offensive or unflattering" usage is against the agreement, only that the user has to include "a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model".  You don't need the statement, if the "the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter".

ie., You can't use an image of someone walking on the street in the context that they are homeless, without a statement saying they are a model, unless the image depicts them with a cart full of stuff, ratty clothing, etc..  Then you don't need the statement.

« Reply #21 on: November 09, 2010, 09:30 »
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Quote
The very fact that you've come out with this bizarre analogy sums up your knowledge on the subject.

What can I say? You've rumbled me!

Quote
It's people like you that use to make people like me very rich.

On the contrary, it was your mother who made you 'Rich', Rich, when she christened you.

Quote
There's a saying in the legal community - "Lawyers don't make the law, they make money from people who don't understand it"
Never a truer word spoken. Here's a tenner, go and get yourself a haircut.

And back to the subject at hand: The model signed a release in which he granted permission for his likeness to be modified. His character has not been defamed. Anyone who says otherwise opens the door for every bald person to counter sue as it implies that a hairless person has less character than a hairy one.

RT


« Reply #22 on: November 09, 2010, 10:39 »
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And back to the subject at hand: The model signed a release in which he granted permission for his likeness to be modified. His character has not been defamed. Anyone who says otherwise opens the door for every bald person to counter sue as it implies that a hairless person has less character than a hairy one.

Again completely wrong, although I do admire your stubborn ignorance of the law, it is not for you to say whether he's been defamed or not because your opinion doesn't matter, neither does mine come to that, it is the person in question to say whether they feel their character has been defamed, then it's down to a court to decide whether it falls within the definition of the law.

In this case it's clear even to the most blinkered person that the model in this example feels defamed by the usage, and within the definition of the law the use and outcome described fits within that criteria. So the very fact that you and some others think he's being a bit lame (and in all honesty so do I because I lost most of my hair years ago) it's not for you or I to make that judgement, if it was we might as well not bother uploading model releases and let anyone do whatever they want with the images.
And as I said earlier it doesn't matter what any agency says in their T&C because they don't make or judge the law either, as soon as they accept the release they agree to abide by it's contents - it's a two way thing.

As for your last sentence regarding all bald people being able to sue, I'm not even going to belittle you there suffice to say I presume you think it's alright to portray a straight married model as gay because they couldn't sue as it would open the doors for all the gay people in the world to say they had less character! Same thing goes for changing someones ethnicity.

I'll have that tenner though  ;)

« Reply #23 on: November 09, 2010, 11:00 »
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just have the model go after the hair-loss company.  He can prove that they are using false and misleading advertising by doctoring an image and not using a real client.  Just the thread of exposing them will probably cause them to cease and desist. 

« Reply #24 on: November 09, 2010, 11:05 »
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Quote
I'll have that tenner though  ;)

I thought you might.  ;)

To me, gay and ethnicity are a million miles from baldness. I could understand if this model had had a rash retouched on his face with the headline 'This person is contageous' but the implication that he might be going bald doesn't give him much of a case as far as I'm concerned.

Okay, if this person walked into your legal practice with the cure for baldness ad, would you advise him to go for broke or gently persuade him to stand down as there's likely to be little in it for him?


 

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