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Author Topic: Woman sues Getty after photo appears in HIV ad  (Read 6664 times)

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« on: September 19, 2013, 20:38 »
+3
This is pretty interesting on many levels.  From New York Post:

"A Brooklyn woman is suing a major stock photo company after she found her image splashed across ads in city newspapers about the rights of HIV-positive people."

http://nypost.com/2013/09/19/woman-sues-getty-after-photo-appears-in-hiv-positive-ad/


ShadySue

« Reply #1 on: September 19, 2013, 20:41 »
0
No model release?
Ouch.
Unless it is sold as editorial. Are you allowed to pose editorials on Getty?

However, Getty's ToS includes the clause:
"2.7   If any Licensed Material featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person (except for Editorial Material used in an editorial manner), Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model."
« Last Edit: September 19, 2013, 20:44 by ShadySue »

Shelma1

« Reply #2 on: September 19, 2013, 20:48 »
+1
This is exactly why the sites require model releases. I'm pretty surprised Getty didn't require one.

« Reply #3 on: September 19, 2013, 20:51 »
0
The article seems to indicate it was taken and submitted as editorial content and was resold as RF or RM. She does not appear to be suing the photographer.

« Reply #4 on: September 19, 2013, 20:53 »
+1
The article seems to indicate it was taken and submitted as editorial content and was resold as RF or RM. She does not appear to be suing the photographer.

You mean "taken and submitted as editorial content and" licensed for commercial usage.

EmberMike

« Reply #5 on: September 19, 2013, 20:58 »
0
Even with a proper commercial license and MR, there would still be issues with how this image was used.

But editorial and no release? Wow. She shouldn't have much trouble getting ever cent of what she's asking for in the lawsuit.

« Reply #6 on: September 19, 2013, 23:49 »
0
No MR....  :o

That's why I'm OPT OUT for sensitive use on SS; despite the fact i have signed MR for all my images with people... i really don't want to complicate my life.

« Reply #7 on: September 20, 2013, 01:39 »
+4
Everyone is jumping to conclusions. Strictly speaking, this is a non-commercial use (and in a newspaper, too) so it may be that the designer working on the Aids rights awareness campaign considered that it was covered by the same rules as editorial and bought it on an editorial usage license. If they spoke to Getty before purchasing it they might still not have mentioned Aids - you could call it an education campaign or social awareness or suchlike.

This does highlight a problem with RM people pix, since there would almost certainly be the same problem if the picture had been used as an illustration in a news feature about Aids which could, conceivably, happen. Would the fact that such usage would be strictly editorial mean it was OK? I doubt it. 

Is she suing the right person? Possibly the city bought it on an non-commercial, non-sensitive license and it should be New York she is suing, rather than GI. We simply don't know. And while it is wonderful to assume that Getty is the source of all evil and wrongdoing, I don't see how there is enough info available to us to make that jump just now.

However, I am glad that my strawberry pavlova will never sue me. Plates of food are so much less litigious than people.

« Reply #8 on: September 20, 2013, 01:41 »
+1
There are 2 cases.

She should not sue Getty, she should sue the newspaper.

for demeaning usage. She will win.

Then the newspaper can sue Getty for not false licensing or false advertising or whattever.
The outcome of this trial, would depend on wherefrom the paper got the image, was it found among other RF images or was it found in edititorial.

She could also join Getty and sue the newspaper for a combined claim. Abuse of lisence and demeaning use.


« Reply #9 on: September 20, 2013, 01:45 »
0
Lets all see how this plays out before we jump to conclusions. If Getty sold this as a editorial photograph and the client or creative agency that created the ad would be responcible for any damages that the woman suffered. The attorney that is representing her maybe be seeing deep pockets in Getty.

« Reply #10 on: September 20, 2013, 01:53 »
0
There are 2 cases.

She should not sue Getty, she should sue the newspaper.

for demeaning usage. She will win.

Then the newspaper can sue Getty for not false licensing or false advertising or whattever.
The outcome of this trial, would depend on wherefrom the paper got the image, was it found among other RF images or was it found in edititorial.

She could also join Getty and sue the newspaper for a combined claim. Abuse of lisence and demeaning use.

It was New York City that placed the advertisements in various newspapers, so the newspaper may not be responsible. The most sueable people would be the design agency that made the ad and the city authorities that placed it in the papers, I would have thought.

« Reply #11 on: September 20, 2013, 04:12 »
0
Exactly, it's the AD Agency to blame here.

And in any case the girl could sue anyways if she wanted, there are so many legal loopholes in these cases as people watching the advertisement could think she is HIV+ ... and this i don't think is fully covered on the MR she signed, if she ever signed a MR at all.

« Reply #12 on: September 20, 2013, 04:17 »
0
Exactly, it's the AD Agency to blame here.

And in any case the girl could sue anyways if she wanted, there are so many legal loopholes in these cases as people watching the advertisement could think she is HIV+ ... and this i don't think is fully covered on the MR she signed, if she ever signed a MR at all.

She did not sign any MR... the image was sold by Getty as editorial...

PS ... i don't understand why Getty accepted that type of image as editorial  ::) ... Submit an identical image on any micro agency as editorial, and the rejection reason will be: Please provide a MR and resubmit as Royalty free.
« Last Edit: September 20, 2013, 04:22 by nicku »

« Reply #13 on: September 20, 2013, 04:30 »
0
She did not sign any MR... the image was sold by Getty as editorial...

PS ... i don't understand why Getty accepted that type of image as editorial  ::) ... Submit an identical image on any micro agency as editorial, and the rejection reason will be: Please provide a MR and resubmit as Royalty free.

Maybe the image was sent to a smaller agency that was later acquired by Getty and they messed things up ?

But i'm sure here is the Ad Agency who's to blame, probably a new intern unaware of the difference between RF and RM or they just couldn't care less.


ShadySue

« Reply #14 on: September 20, 2013, 05:05 »
0
But i'm sure here is the Ad Agency who's to blame, probably a new intern unaware of the difference between RF and RM or they just couldn't care less.
RF and RM is irrelevant. Non-editorial images can be sold RM on Getty.

I couldn't actually find this pic on Getty either by GIS or by a Getty seach, so I was presumably using the wrong keywords.

Even assuming this counts, as some think above, as an Editorial use, so MR not required and apparently immune from Clause 2.7 as some think (I disagree, shouldn't 'used in an editorial manner' actually need to be truthful or relevant?), surely anyone whose image was used in this way would be driven to a media campaign to let people know that it wasn't true? So the company who put out the piece without pretty visible 'posed by model' indicators, should have known that the ensuing publicity would tend to overcome their original, valuable, message.
In any case, I find it hard to believe that they couldn't have found someone who is already 'out' about being +ve to agree to being used in the campaign.

« Reply #15 on: September 20, 2013, 05:06 »
0
She is going to have to show some kind of damage. Just being humiliated is not a collectable tort. If that were true every New Yorker would beinvolved in a lawsuit. Getty has such deep pockets they could keep her in discovery and make the lawsuit to expensive for her to pursuit. I bet she is hoping that Getty will offer some kind of go away check and dismiss the case

« Reply #16 on: September 20, 2013, 05:08 »
0
Submit an identical image on any micro agency as editorial, and the rejection reason will be: Please provide a MR and resubmit as Royalty free.

When you say identical ... Clearly you do not mean the same image. So - do you mean the framing ? Or the fact that that the image is clearly staged to some extent - posed rather than, say candidly observed ?

Shutterstock, for example, has thousands of 'editorial use only' posed portraits. For example search for 'woman' and select editorial.

So what sort of image are you saying would be rejected by the microstocks under these circumstances ?

ETA: speculating about the specifics of this instance is pointless IMO.
« Last Edit: September 20, 2013, 05:27 by bhr »

ShadySue

« Reply #17 on: September 20, 2013, 05:09 »
+1
She must have a better chance of going after the advertiser.

« Reply #18 on: September 20, 2013, 05:41 »
+1
Sue, I don't think it is an "editorial" use, but it is certainly a "non-commercial" use, since it is a public service awareness advert, not one aimed at selling something. So it is neither "commercial" nor "editorial", it's something else.  Slippery stuff, language, and that could have been one of the factors behind the problem.

ShadySue

« Reply #19 on: September 20, 2013, 06:07 »
0
Sue, I don't think it is an "editorial" use, but it is certainly a "non-commercial" use, since it is a public service awareness advert, not one aimed at selling something. So it is neither "commercial" nor "editorial", it's something else.  Slippery stuff, language, and that could have been one of the factors behind the problem.

Yeah, I didn't think it was commercial, yet not really editorial. It might be 'infomercial', which is presumably different from 'advertorial'.

It will be very interesting how this pans out.
Has anyone found the image on Getty? Curious to know whether it was being sold as editorial or 'creative'. Maybe they've taken it down already (?)

Added: not informercial, which seems to be specifically "A television program that promotes a product in an informative and supposedly objective way."
« Last Edit: September 20, 2013, 06:18 by ShadySue »

Tror

« Reply #20 on: September 20, 2013, 06:18 »
+2
She must have a better chance of going after the advertiser.

Exactly. Getty might have sold the photo as Editorial. The usage is clearly NOT editorial as the photo is used to advertise something (A New york state program). It is not important if the entity is non-profit or profit. Advertisement is advertisement. Assuming it was sold as editorial the fully responsible instance is the advertiser or ad agency since they clearly broke the getty agreement too.

ShadySue

« Reply #21 on: September 20, 2013, 06:20 »
0
She did not sign any MR... the image was sold by Getty as editorial...
Do we know that Getty sold it as editorial?

« Reply #22 on: September 20, 2013, 07:19 »
0
Exactly. Getty might have sold the photo as Editorial. The usage is clearly NOT editorial as the photo is used to advertise something (A New york state program). It is not important if the entity is non-profit or profit. Advertisement is advertisement. Assuming it was sold as editorial the fully responsible instance is the advertiser or ad agency since they clearly broke the getty agreement too.

Yep.

« Reply #23 on: September 20, 2013, 07:25 »
+1
My two cents: Yes Getty is responsible since it doesn't have a MR and misused the image. The woman claims that "New York photographer, Jena Cumbo, snapped the shot years ago but had no written release or authorization to use or sell it." So the photographer may also be responsible. Apparently she is also suing the state as well. And yes, she can claim damages. This infringes on her privacy as well as affect her social life. It's also known that HIV positive people have difficulty getting health coverage and employment. So it you can also make a claim that it could affect her career. I don't see why it won't be settled soon.

« Reply #24 on: September 20, 2013, 08:21 »
+3
My two cents: Yes Getty is responsible since it doesn't have a MR and misused the image. The woman claims that "New York photographer, Jena Cumbo, snapped the shot years ago but had no written release or authorization to use or sell it."

No release or authorization is required for editorial.


 

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