5 Nightmare Photography Court Cases


175150086_7a178b57ea.jpg
Photography: Starslate

If you think understanding photography law can be a nightmare, try dealing with the horrors that can happen when you don’t understand it.

Or when publishers choose to ignore it, stock agencies hide behind it or subjects try to use it to restrict the use of images.

Here are five photography court cases that should scare the bejesus out of photographers.

1. Lara Jade Coton Versus Bob Burge and TVX Films

Lara Jade Coton, who we interviewed here not long after the story broke, was a 14-year-old schoolgirl in England when she shot a self-portrait wearing a top hat. She was still under 18 when Bob Burge, owner of TVX Films put the photo on the cover of a porn film called “Body Magic.”larjadesmall.jpg

Lara Jade, now an 18-year old photography student, had placed the image on deviantART, protected (she’d hoped) with a watermark and copyright symbol.

After being told that her self-portrait was being used to promote porn, Lara Jade contacted Bob Burge who was less than polite. Complaining that her photo was harming sales anyway, he promised to change the cover of his Hustler-rated DVD.

Months later, ads for the film featuring Lara’s image could still be found on the Web.

It was only when Lara Jade used her Flickr page to describe what happened that things really took off. She received press coverage around the world, comments of support from hundreds of photographers… and a court case filed against Bob Burge and TVX films in the summer of 2007.

Photography: Lara Jade Coton

2. Flickr Member Sues Virgin Mobile after Appearing in Australian Ad

Lara Jade isn’t the only underage victim of a company trying to promote itself. Alison Chang, a 16-year-old from Bedford, Texas was photographed flashing a victory sign at a church fundraiser in April 2007. The photographer, a youth counselor, posted the image on his Flickr stream with a Creative Commons license.

Advertising executives at Virgin Mobile Australia grabbed the image and placed it on at least one bus shelter with the caption “Dump your pen friend.”

Ryan Zehl, an attorney for Ms. Chang was quoted in the Dallas Morning News saying:

If a company uses your face in its ads without your consent, then you’re entitled to whatever money those ads generate for the company… It’s Texas law.

Australia, of course, is a long way from Texas but the law suit does touch on all sorts of important issues, including model releases, privacy and copyright as it relates to Creative Commons licenses.

3. Corbis Sued For Losing Photos

Most photographers have nightmares about something happening to their images. So they keep back-ups and they trust stock companies to do the same.

Or at least to look after their photos properly.

Corbis didn’t do either. Early in November 2007, photographer Chris Usher won his suit against the stock company after discovering that it had lost 12,640 of his analog images — one in four of the images the photographer had submitted.

Usher, who used to represent himself, had signed up to Corbis to supplement his sales to Time, Newsweek and other major publications. He asked for his images back when he grew disappointed at Corbis’s licensing deals and billing practices.

Corbis initially denied that they had lost any of Usher’s photos but admitted on the first day in court that they might have misplaced a “mere 5,877.”

This isn’t the first time that Corbis has been sued for losing photos. Arthur Grace was awarded $472,000 after Sygma, a French stock company that Corbis bought in 1999, lost 40,000 of his slides. That case will receive a new hearing and could lead to even higher damages. Chris Usher will have to wait until December to learn the size of his court-awarded compensation.

4. Passer-By Sues Philip-Lorca diCorcia for Selling his Photo

In general, if you’re in a public place, you can photograph it. And in general, if you want to sell an image of someone for commercial use, you need their permission.

Philip-Lorca diCorcia though, thought he was on safe ground when he set up strobe rigs in New York in 2006 and photographed people walking down the street. He didn’t put the photos on ads or mount them on billboards. He placed them in an exhibition and sold them as prints.

And he was sued by Emo Nussenzweig, an Orthodox Jew, who appeared in one of the photos and considered the sale both an invasion of his privacy and a breach of his religious rights.

The court ruled that although ten copies of the images had sold for up to $30,000 each, they were still considered works of art, were not commercial and were therefore protected under the First Amendment. Nussenzweig’s appeal was filed too late to be considered.

5. Goosed Farmer Seeks $7.5 Million in Damages for Photo

goosed.jpgYou might be able to argue that a work of art is not commercial but photographer John Burwell could struggle to make the same claim for an image he shot that appeared on greeting card.

The photo, which was taken in 1996 at the State Fair of Virginia, shows poultry farmer Andrew Marsinko with a goose on his knee. Burwell submitted the image to Jupitermedia who licensed it to a company called Leanin’ Tree.

Leanin’ Tree used the photo on the cover of a greeting card with the caption “Since it’s your birthday, you decide — Would you rather get spanked… or goosed?”

Marsinko, who was a well-known figure in goose-breeding circles, is now an even more well-known figure.

He is suing Burwell and his wife, Jupitermedia, Getty Images (who bought the rights to the image) and Leanin’ Tree, for defamation, unauthorized use of a picture, conspiracy and attempted conspiracy, and reckless infliction of emotional distress. Marsinko claims that he did not sign a model release form.

Photography: Courtesy of Roanoke County Circuit Court

If you’re not certain about photography law, talk to a lawyer or check out the writings of Carolyn Wright or Bert Krages.

[tags] lara jada coton, photo legal issues [/tags]


24 comments for this post.

  1. JoeTech.com Said:

    I can relate most to Lara Jade's story, although they're all pretty rough positions to be in. One of my oldest sites for which I've had the domain about 10 years is now plagued by a porn video that bears the same name. I still haven't worked out my approach yet.

  2. photographer Said:

    it seems that the recurring theme in all the above scenarios is that the photographer is making money through photographs taken of other people without bothering to check with them if its ok with them.

    irrespective of what the law has to say about this, your moral and ethical compass, or even just basic common sense should be sufficient to tell you that that is wrong.

    despite being a photographer, i can relate more to the model in these cases than the photoragher - after all, you are photographing a live flesh and blood human being and not a garden statue.

    such behavior practically reduces you to a mere paparazzi.

  3. ryan Said:

    A man robs a store, a video camera captures his image. He shows up in both commercial television and print programs in order to assist in his capture. However he did not sign a release. In this instance I think it is both reasonable and ethical to proceed without the consent of the subject, but I wonder legally how much the law differs in this case compared to some of the one's mentioned above.

    In addition why does an Orthodox Jew have greater control over his image, then say Britney Spears or any celebrity?

    To me these cases do not seem equal. 1 and 2 appear to be copyright theft, 3 appears to be a case of negligence, and I have no clue about 4, or 5.

    I guess the moral of the story is do not assume blanket permission for anything and consult a legal professional before undertaking a commercial project that involves unwitting participants in anyway.

  4. andreshb Said:

    "photographer" made me wonder about paparazzi. If the pictures they take they sell to tabloids, and those tabloids sell the magazines for profit, why do they not need model release forms? Is there a special case for "journalism" ? What if the news organization decided to sell those pictures (which they do) would they require to get model release forms from say rioters from LA's riots in 92?

  5. Matteus Said:

    Figures in the public eye are an exception (no consent needed), and I even believe there's some debate about whether non-public figures really need to sign a model release for news/editorial photos. Those with experience in this area please enlighten us

  6. latent image Said:

    You are actually missing a VERY big on from your list.
    http://news.justia.com/cases/398123/

    Peter Wolf of photocrazy.com claims to own the patent on the "Process for Providing Event Photographs for Inspection, Selection and Distribution Via a Computer Network."

    With his fresh patent he is starting to bully settlements out of websites that allow photographers to sell their images online. Smugmug, Printroom, and Brightroom have all paid large settlements, and now may require that their users pay wolf a licensing fee as well as up to $1.50 for every image sold.

    This is the NIGHTMARE COURT case that should be at the top of the list.

  7. Jason Tweed Said:

    My Media Law Course covered some of these issues. Here's what I remember off the top of my head.

    Public figures versus private figures.

    Photographing famous people without consent is legal for non-endorsement purposes. So you can sell the photos to a commercial magazine, but the photos can't be used to imply endorsement, even if Britney Spears is holding a Coca-Cola.

    Private figures must give permission to be photographed for commercial purposes generally.

    There are two areas that create controversy. First, how do you define private versus public figure. There are certainly individuals who are on the cusp. Generally, context applies. You can take a picture of Steve Wozniak (an Apple Computer inventor) at a computer trade show without permission. Photographing him sunbathing naked on a yacht, is probably not acceptable (or advisable).

    The other issue is weighing privacy versus the public good. As a previous writer noted, rioters in Los Angeles are private figures, however displaying their images is in the public interest, and in this case the public interest outweighs their right to privacy.

    However, covering a county fair and filming a woman being dropped into the dunk tank while wearing a white T-shirt, a TV station and would probably not be able to use the image legally. Her right to privacy and would outweigh the need to use that image in the news. In this case, they would need a model release.

    The final issues defamation of character. Two things are required to be able to claim defamation. First, you must have a reputation that has value. For example, while the farmer holding the goose may not be famous, he may have a reputation within a certain industry that holds value. Second, that value must be damaged. In this case you would have to demonstrate that he had financial losses directly attributable to the reduced value of his reputation.

    Finally, photographs for artistic sake are generally considered valuable to the public. Photographing an older woman sitting on a park bench is probably not an invasion of her privacy, even if the photograph is sold as a work of art. However, if she can prove the photographs caused defamation she may have a case.

    Finally, there is implied consent. When it is evident that an individual is clearly posing for the camera, or acting in a manner clearly eliciting attention, they give up some rights to privacy. The key here is "expectation". For example, a woman who poses nude for her boyfriend is protected if he sells the images. You can photograph a street performing clown and use the image on your travel blog, even if that blog is for profit. However, you can't sell the photograph to a stock photo company, or to a company that sells clown makeup without a model release.

    Generally speaking... get a model release every time you take a photo. If you are embarrassed to ask for one, or don't think the individual would sign, that's probably a good sign that you shouldn't be selling the photo.

  8. Lau @ Digital Photography Tutorials Said:

    A really funny and tough article.
    Copywrite should be respected in photography.

  9. Lynda Lehmann Said:

    Generally speaking, I avoid photographing people for just these reasons. If I ever do, you can be sure I'll be carrying a sheath of model releases.

    But I have a question for all of you. If you are shooting street scenes and you blur the faces of passersby, is that protection enough for the photographer, since their identities are not apparent? I have done this, but I'm not sure if it's going to cover me.

  10. LinkBaitMe.com Said:

    Here's another that should be on this list, I think (even though they avoided court):

    http://eirikso.com/2007/10/04/they-stole-an-image-of-my-son-and-just-had-to-pay-4000/

  11. Anton Sheker Said:

    Here is my story about a major daily in the Philippines printing my photos which were stolen from my blog.

    http://www.photo.net.ph/blogalicious/2007/10/01/major-daily-violates-photographers-copyright-and-intellectual-property/

    What did i do? i posted copyright problems online.

    http://www.copyright.ph

    am still waiting for a reply from them.

  12. doug rosbury Said:

    If you want to avoid lawsuits, It seems impossible because photos can so easily be copied
    especially on the internet where it's only a matter of doing it digitally. A showing? do not sell until and unless you have a release. Off the street? good luck finding a person to get a release. It's a dilemma. Leave people out. But of course we can't do that either. You just have to take a chance, I guess. What a bummer!

  13. ryusen Said:

    Don't forget the case of the Taster's Choice guy. They used his image on their coffee for years and years without paying him for it. I think he won $8 Million.

  14. Karen Said:

    People will steal from you and act like they are ignorant to the laws that protect us. Most of them know the law they just don't care.

  15. Leila Boujnane Said:

    Another lawsuit to add to your list, although this one ended up well for the photographer but not so well for the New York travel agency who was using photographs without permission:
    64K awarded to Robert Burch, article on PDN here:
    http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003613955

  16. Rod Said:

    It's the PICTURE USEAGE, which determines whether a model release is required or not.

    In general you can run pictures of anybody doing anything if you are using the picture IN AN EDITORIAL/NEWS-TYPE CONTEXT; i.e. you are informing the public. It's protected by the 1st Amendment to The Constitution.

    Any use of any recognizable person/property in any advertisement or other commercial application must be protected with a model release.

    The Constitution doesn't say you have the right to profit from the image of another without their consent. The images of celebrities are typically used editorially. If you use your picture of Ms. Spears' to sell Coca Cola and she has not signed a release, look out; you probably just gave her your farm.

    The cover of a magazine is probably editorial; but, the cover of a greeting card is definitely commercial. The picture is the product, etc.

    I'm not a lawyer; so, confirm this with yours before risking the farm.

  17. Rafi Said:

    As a 17 year old, I am always worried someone will try and take my photos. Now I see that many cases involve minors like me.

  18. Mackanak Said:

    What do you guys think about freedom of expression in photography, should we be able to photograph gangs, drugs, violence, women and say we are expressing ourselfs artisticly?

    Or that we shouldnt because of the audiences it may be shown too.

  19. Amanda Said:

    i'm a photographer and most certainly worry about someone stealing my images all of the time. i have had several images stolen from the web and made into Christmas Cards, Greeting Cards, and used for journal layouts. Some of the sites that feature them are in foreign languages. What are you to do when they are in other languages and you can't decipher what they are saying about them or using them for? It gets really confusing and you just want to scream.

    You also have to be aware about when someone emails you saying they want permission to print 300 post cards *or prints, using one of your images. How do you know that they will only print 300? Sure, you're getting paid for the 300 but they may be galloping around the printers with 300+.

    Even when you are giving permission, and you are getting waivers, etc., you still don't really know what's going on with your image. I once gave permission for a school in Canada * i live in the united states* and they were using it for postcards to send out to perspective students. I asked for a postcard in the mail but never received one. A few weeks later I got the check in the mail and when I took i to the bank to have it cashed, the teller didn't convert the funds. I had it automatically deposited into my account, i just put the receipt in my pocket and left.

    After I got home i went online to spend the money on some items on the internet. I get a phone call from the bank saying i owe money. To make a long story short, I ended up having to PAY back the bank 7 years later to get my name off of a bank blocking list that prevented me from getting a bank account anywhere in the United States. I refused to pay for all of those years and needed a bank account so I finally agreed to pay it.

    Photography is a messy business and people will try their hardest to take it , exploit it, and call it their own. Be prepared.

  20. Jenny Lens Said:

    I just found out about this fascinating blog, so I tried to find out more about Wolf and his patent. First issue is whether or not he provided the truth in his patent application: did he truly come up with an unique way of doing business? What exactly did he patent? I could not find info on the net. If someone received a patent that prevented me from doing business in a manner I have been doing for many years, I would immediately refute the validity of his patent. He had to create a very unique method or process or product that is very different than the way I am doing business. And the way I am doing business is typical of many others, so it's his method vs tried and true methods.

    I'm always curious when I read about certain legal cases and wonder all the details. You can't patent a process that has been in the public domain for years and prevent people from doing business they have done before the patent. I don't care if a patent is issued -- the legality of the patent can be questioned and ultimately revoked or modified.

    Check your movie history: the reason movie productions moved to Hollywood was partially for the weather but just as importantly, to get away from Edison's henchmen, who trailed film-makers to get their pound of gold cos of Edison's patents. Lots of patent "wars" over film-making, way back when! And issues of monopoly, when the movie studios had to let go of their theatres. In other words, if people stand up to certain legal rulings, sometimes they are changed, legislatively or via court cases.

    I am very very concerned about the loosening of copyright laws, and the fact that too many photographers allow their own copyrights to lapse by not water-marking their images, not getting all agreements in writing, not discussing these fine details with other photographers. The stories I could share of selfish, stupid, lazy photographers whose actions negatively affect all of us would upset you and depressed me way too much!

    So many photographers haven't the slightest clue about the laws, which is pathetic considering how much is available on the net. Unfortunately, too many are stating pure opinion as fact and that adds to the mess. Even attorneys are clueless about photography issues, but that doesn't shut them up about offering their often invalid interpretations.

    Will you all shut up about artistic vs non-artistic photos? It's like porn, you can't define it, but you know it when you see it? NO ONE has the right to say if a shot is artistic or not. Beauty is in the eye of the beholder.

    There's a ton of shots that I think are crap that people pay a ton of money for. Do I really need to say more??

    To all of you who posted what photographers can and can't do: unless you are someone who has had real legal dealings or training in this area or done your research on real legal sites, shut up. Don't say you can or can't do something, and then say you aren't a lawyer. Gee, what's the point of adding misinformation and acting like that's helpful?

    I've been dealing with these topics for nearly 20 years, since we first started scanning images to post online. I am really tired of reading the same crap over and over again, tired of providing good links and sources, when there's plenty of sites written by people who know the laws a whole lot better than most of you all. Just start searching. And if you are going to advise someone, be sure to include your sources. Otherwise you are doing more harm than good.

    As far as the other nightmare stories, you better believe it's far harder to use photos of public and private people, and places, than ever before. As someone who helped many many rock performers in a time when they were not getting publicity and needed it, I am in a position wherein ONLY the performers have benefitted.

    I can't make tshirts, calendars, posters, greeting cards, etc with my own photos. It's been a nightmare for not only me, but fans of the performers and my fans. The public can't understand why I don't do more with my photos. They think I'm stupid and lazy and are dumbfounded when I inform them of the laws of the land, which greatly restrict the usage of photos I created and I own.

    I can't stop those who use my work illegally and jeopardize my rep cos it costs money and thieves get away with more than I could or would. I don't bootleg my work, but others do, endangering my archive and peace of mind (ha, peace of mind in this business, I must be crazy).

    I can't do more than limited edition art prints, post them, and books. That's it. And the irony is most of the performers never bother to thank me nor invite me to a show or even write a few words in my critically acclaimed work which has helped them in more ways than I have space nor time to discuss.

    And EVERYONE thinks I'm rich and famous and some even envy, hate and try to destroy me, even those I've helped. Nice, eh?

    So I do it for the love of it, and because people love my work. I struggle for money every day and curse the system that benefits everyone but the legit artist. And I blame photographers who won't discuss what they charge, items in their contracts, or any business tips. They stay mum on the subject cos they don't want to help the competition, not realizing they are lowering their earnings by not being united.

    Photographers don't have unions like film-makers and musicians. And that's a shame. And they don't watermark nor discuss with an IP attorney or do their research. Then they moan about having no rights. Use them or lose them.

    IF YOU ARE GOING TO POST YOUR PHOTOS, watermark them! I gave up trying to fight those who scan my photos from books, there's just so much I can do. I could spend all my time tracking down illegal usage or focus on how I can legally use my photos in ways that benefit me. I can't do both, so that's that.

    Finally, some people don't want their photo taken nor used for any purpose. And guess what, they have that right! Some Jews feel it's idolatry and violates their beliefs. It's not up to you nor I to say why should that Orthodox Jew have a right someone else doesn't have?

    Editorial usage: if someone uses my fat butt to show the wrong way of dressing, it's not nice, but it is why in many cases they block out the face. But they better not use it to sell a product! That's commercial. The third usage is artistic: so the artist got away with it cos he sold the images in a gallery and one of the very few laws we have is the First Amendment re art. It's that simple.

    But all laws have statute of limitations and that's a drag at times. By the time I find out someone bootlegged my image, it's too late to do anything. But that's life, so get over it. Or not.

    Photography is a messy business and in no small part due to photographers who don't treat it like a business. And those of us who do work on the legal and business ened often spend more time dealing with that than the art itself! If all photographers did their part and really paid attention to the laws and business aspects, some of these problems would be minimized or cease to exist. It's only because too many are lax that others can prey upon us, time and time again.

    Until the day comes that photographers finally unite, we will have less rights than anyone else who creates anything. And as more photographers get into this arena, this situation is only getting worse.

    I want to know how that photographer got $30,000 per photo? Who is he, some big time hustler who gets his name into the right mags and galleries? That's ah-mazing. Let's focus on that: raising photography to a higher art so we get what we deserve, after having to deal with all these legalities and restrictions!

  21. Anton Sheker Said:

    I finally did it.. I sued a 108 year old news paper company.

    http: / / http://www.photo.net.ph/ blogalicious/ 2008/ 06/ 09/ philippine- photographer- sues- major- daily- for- copyright- infringement

  22. website design Said:

    If you want to hear a real nightmare lawsuit.

    Some photographer friend of my dad was bankrupted by a suit a couple of years back.
    He didn't get an album to a couple by christmas (a few days late) and they sued for >1 million.
    They won....

  23. Jay Said:

    Get off your high horse Jenny Lens, quit preaching to everyone with that annoying tone of indignant disgust people like you always adopt. If you don't like the drawbacks to an internet society then stop publishing or uploading your photos, problem solved.

    And your watermark idea, what a noob suggestion. I can think of at least 5 ways off the top of my head that will remove watermarks and none of them take longer then 10 seconds to perform.

    And a photographers union? Whats the entrance requirements for this a freaking camera? Good luck with that.

  24. Vivienne Said:

    I'm a student and I am now convinced I'll need model release forms before I can hold my exhibit at the end of the year, or even continue taking shots. Where can I find some online? Or, do I have to write some up myself? I wouldn't know where to begin...

Click on a tab to select how you'd like to leave your comment

Leave a Comment



Copyright ©2014 New Media Entertainment, Ltd. v2