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Author Topic: Woman sues Getty after photo appears in HIV ad  (Read 6747 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.

EmberMike

« Reply #25 on: September 20, 2013, 08:40 »
0
...Strictly speaking, this is a non-commercial use...

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


« Reply #26 on: September 20, 2013, 09:42 »
+2
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.

« Reply #27 on: September 20, 2013, 10:15 »
0
...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.

ShadySue

« Reply #28 on: September 20, 2013, 10:25 »
0
...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'.

« Reply #29 on: September 20, 2013, 10:26 »
0
advertising in newspapers cost money. Its the newspaper who distributes and earns.

Unless they have a liability disclaimer that they are not responsible for the content of the advertising, then it is they who do the damage by distributing and earning.

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

They can later on sue the graphic agency, who later on can sue getty.
« Last Edit: September 20, 2013, 10:28 by JPSDK »

« Reply #30 on: September 20, 2013, 11:00 »
0
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.

« Reply #31 on: September 20, 2013, 13:12 »
0
If Getty sold this image as a editorial photograph, they are not liable for any damages that this women may have or will suffer. The more I hear about this case and read about it, she is only going after the entities with deep pockets. Unless there is a settlements this will take years to run though the legal system

EmberMike

« Reply #32 on: September 20, 2013, 19:00 »
+1
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.

« Reply #33 on: September 21, 2013, 03:54 »
0
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.
All right, trading goods and services, then. But it's still selling something,

ShadySue

« Reply #34 on: September 22, 2013, 08:58 »
0
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.

« Reply #35 on: September 23, 2013, 18:00 »
0
(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 Nolans situation. Getty Images had a model release and relied upon the photographers documentation when we made the image available for license.


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


ShadySue

« Reply #36 on: September 23, 2013, 18:09 »
0
(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 Nolans situation. Getty Images had a model release and relied upon the photographers 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".

Quote
Quote
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.
« Last Edit: September 23, 2013, 19:08 by ShadySue »


 

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