I think there's some confusion between 'non commercial' and 'editorial'. Newspapers, magazines, brochures and websites are usually commercial, but editorial images are fine for use there.

In my understanding an editorial image should be accompanied by some text in an article format to be okay. Although this is a 'non-commerical' use in that the subject is a charity, government or non-profit organisation, it's still an advert in the widely understood sense. It's the sensitive use clauses in the licence that will be the problem for the design agency. Obviously they should have taken more care with such sensitive subject matter.

I guess the lawyers will win no matter what.

Quote from: EmberMike on September 20, 2013, 08:40

Quote from: BaldricksTrousers on September 20, 2013, 01:39

...Strictly speaking, this is a non-commercial use...

How is this non-commercial? It's being used to advertise something.

Commerce involves trade, this is nothing to do with trading goods.

There's also trading services.
Also 'non-commercial' isn't the same as 'editorial'.

Unless they have a liability disclaimer that they are not responsible for the content of the advertising....

It is also they who have the expertise about copyright, licensing and demeaning use.

It would be astonishing if New York papers didn't have a disclaimer of liability as a standard clause in their advertising contracts. There can be all sorts of pitfalls in adverts that aren't obvious to the advertising sales reps.  And if there is a disclaimer, they don't need to have any expertise in copyright etc.   The ad reps I've known haven't given a second thought to that sort of thing, all they are interested in meeting targets and getting their commission. They don't see content as being their business and the editors don't have anything much to do with the ad department.

Commerce involves trade, this is nothing to do with trading goods.

Fortunately for us, that's not true. Otherwise every service business would just be using non-released editorial in advertising.

Is the New York department concerned related to the one which used a hefty man's image in a diabetes campaign and photoshopped off his lower leg (s?).
If so, they must have decided that any publicity is good publicity.

(After all the speculation about it being editorial, or not ....)

http://petapixel.com/2013/09/22/model-sues-getty-seeing-hiv-positive-advertisement/

Quote

Update on September 23, 2013: Getty has issued this statement regarding this story:

We empathize with and understand the sensitivity of Avril Nolan�s situation. Getty Images had a model release and relied upon the photographer�s documentation when we made the image available for license.

That's confusing. They say they had a model release and relied on the photographer's documentation. Are they like Alamy and don't actually check the paperwork at the time of acceptance?
But they are saying they had a model release; they're not saying, "the photographer told us that she had a release".

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The photographer ... Jena Cumbo tells the NY Daily News that she �made a mistake� by not understanding her contract with Getty.

Does that mean she didn't understand about the necessity for a release? Ouch.

In any case, there is still the question about whether a 'reasonable person' would think that this use was "used in connection with a subject that would be unflattering or controversial to a reasonable person." I'd think it was controversial to depict someone as being HIV+ if they weren't. Maybe I'm unreasonable.

I see that there's no mention of GI saying that this use is against their agreement.

So, possibly several layers of responsibility, or lack of responsibility, here. Still interested to see how it pans out.