What to do about image used w/o release.

[paul stimac]

Not really LF related but I'm sure someone here will know about this.

My wife's image was used in an ad without her signing a release. It's in an ad that she's not happen to be in. Is there a penalty for this? How would we proceed?

[Bruce Batchelor]

If you hold a sincere grievance for the misuse of this image you could demand payment or consult with an intellectual property litigation firm. Write up the complaint in a concise form and ask for a free initial consultation. Get copies of the ad and the publications it appears in. Keep them in unspoiled form. If you feel inclined, get a form of release, send it to the publisher, and make demand for payment. Find out what the modelling fee would be for that number of insertions and multiply it by about 10 as a starting offer. Make no binding offers. Ask for a published apology. Probably the publisher does not know of the infringement; this is bad news for them. Keep us posted.

[Brian Ellis]

Well the first step is to let us know where you're located.

[roteague]

Send the company a bill.

[Gordon Moat]

Some clarification on this: was it an ad in which your wife appeared, and she had not signed a model release; or was it an image she had photographed that was misappropriated for use in an ad? The first falls under privacy laws, while the second is a copyright issue. In either situation, the first thing to do is find out what ad agency put this together, and contact them. You can probably find that out from the company in the advertisement, whom you also want to contact. Act polite and deal with this situation, but if not resolved quickly by a letter, then see an attorney. Best of luck.

Ciao!

Gordon Moat
A G Studio (http://www.allgstudio.com)

[tim atherton]

Paul, if you are in the US and you are serious about this then the first thing you need to do is speak to a lawyer who understands this area of work.

DON'T try talking to the ad agency/company first yourself - you'll just screw it up...

It isn't at all simple and potentially covers several different areas of the law depending on where exactly you are.

Among other things, depending on how they got the image, how it was used, what the product is, you may be going after the ad agency, the company that owns whatever its being advertised, the photographer who took the original photograph etc etc.

Especially, don't make or suggest any offers - again, you'll just screw it up and any lawyer you may end up hiring won't thank you in the least.

[Frank Petronio]

KaChing, you won the lottery. Congratulations!

[tim atherton]

KaChing, you won the lottery. Congratulations!

potentially... as long as you ignore all the "I play a lawyer on the internet" advice

[al olson]

There are some things here that are not clear. When you say your “wife’s image” are you talking about a photograph that she created or that they used her own personal visage in their ad?

If it is an image of her own person, then I see two distinct issues:
(1) Does she consider her appearance in the ad that she is not happy to be in a defamation of character? In that case I would certainly contact a lawyer. There may be some significant damages here.

Or (2), Is the issue that she should be awarded modeling fees for the use of the image? In this case I would do some research to determine the going rates for models in your area for that type of work.

I would then consult with a lawyer, but I would guess that your recoverable damages will be in the low thousands of dollars, in which case the attorney will probably not take the case. Even if you can get more, it will be eaten up by attorney’s fees and expenses.

At this point I would invoice the ad agency for the fee times a multiplier for all of the times that it has been used. If the agency does not pay the invoice in 60 days and you live in the US, I would then file a claim in Small Claims Court. I believe every state has one. They will specify an upper limit, likely somewhere between $3000 and $7000, depending upon where you live.

If they do not pay the claim, then you go into court and represent yourself. This is where you present your case and explain the damages and the rates and fees that you have researched. I have used this approach (not for photography) successfully.

On the other hand, if they have appropriated an image that your wife made, then I would again follow course # 2 above based on the rates for an image licensed for advertising.

By filing in Small Claims Court you make it clear that you mean business. If they let it go to court then they must show up or the judgement will be in your favor. If they choose to represent themselves with a lawyer then you have the option of using a lawyer as well, but the case will be moved up to a higher court.

In this event, if I could make a good case for myself I would continue my own representation. Most judges in these courts tend to favor the little guy.

If you get a judgement, then consult with a lawyer about enforcing it, such as filing liens, etc. But it is my guess that they will pay the invoice rather than going to the trouble to defend themselves.

These are my thoughts. I wouldn’t let them off the hook.

[David Karp]

Talk to a lawyer who knows what he or she is talking about. Often, you can get a first consultation for free. Then you can decide whether to continue with the lawyer or not.

Other than the law, which you admittedly do not know, you would want to know the value of the image, the going rate for the rights that were appropriated (assuming that they were), what other damages you might be able to recover, and a variety of other issues that may or may not be applicable to your wife's situation. Someone experienced in this area could help you answer these questions.

Inquire whether the lawyer is experienced in these sorts of cases. A few letters from a knowledgeable lawyer could get you more than you could on your own, plus compensation for the lawyer's fees.

Free Internet advice may just be worth what you paid for it.

[paul stimac]

It was a photo of her, not one she took.

Looks like I need to find a good intellectual property lawyer. Any suggestions? I live in Nevada.

[Capocheny]

My wife's image was used in an ad without her signing a release. It's in an ad that she's not happen to be in.

Paul,

I may be missing the gist of the situation here as you've described it...

The first part I get.

The second part I don't.

Are you saying she was photographed in the ad by accident/mistake? Where was the ad photographed?

Cheers

[Charles Carstensen]

Sooooooo, what are the damages? Paul, are you pulling our leg?

[paul stimac]

The shot was originally taken by the local newspaper for a story they ran – which they didn’t need a release for because it was editorial.

It's now used in an ad used to promote that company. She no longer works for this company. She left this company because of harassment by her supervisor.

[tim atherton]

The shot was originally taken by the local newspaper for a story they ran – which they didn’t need a release for because it was editorial.

It's now used in an ad used to promote that company. She no longer works for this company. She left this company because of harassment by her supervisor.

definitely lawyer country. There may be complications from her employment contract. There may be complications from how and why she left. There may be room to sue the company, the newspaper, the photographer, the ad/design company etc etc. But she needs a good lawyer who knows what they are doing to even decide whether to take that route or not. I can't emphasise enough - DON'T make any moves or contact the parties involved without talking to a good lawyer first - not if you want the best possible result for yourselves (even if the end result is that you decide to take it no further)

[Charles Carstensen]

Paul, thanks for the further details. She did work for the company, and gave her permission to be photographed at the exact instant the editorial photograph was shot - is now my understanding.

[tim atherton]

. She did work for the company, and gave her permission to be photographed at the exact instant the editorial photograph was shot - is now my understanding.

but probably not for commercial use - depending on what State she is in and what her employment contract stated. Among other things

[paul stimac]

Thanks for all the advise. I'll start looking for a lawyer.

[neil poulsen]

Do you have copies of all papers she signed, while she was employed? Might be a good idea to take a look and have copies when you meet with an attorney.

I would think that all such papers would be in her personnel file, which people usually have a right to review.

[Frank Petronio]

A lot of (smart) employers put a general model release clause into their contracts. So don't spend the money ahead of time...

[David Crossley]

<A lot of (smart) employers put a general model release clause into their contracts. So don't spend the money ahead of time...>

What Frank said.

Anyone remember the photo of the firefighter and child victim from the Oklahoma City bombing tragedy. Taken on company time, i believe the employer held the rights.



David Crossley/Crossley Photography....

[paulr]

Please let us know what you find out from the lawyer. It's an interesting case.

[David Karp]

Much of the conversation between a lawyer and client is privileged, which means that it is private and third parties are not allowed to find out what was discussed. This is to enable a lawyer and client to be totally frank with each other, and discuss the strong and weak points of the client's case. If the contents of the discussion are disclosed here, that might be construed as a waiver of the privilege, which might not be a good thing if the dispute turns into litigation.

[Sheldon N]

As someone who works in a field that occaisionally deals with these questions, I'll chime in as well.

You do have one other underlying problem with your case - there really aren't any damages to collect. Your wife has not had her image or reputation tarnished by the publication of this image, rather it just sounds as though she would prefer that her prior employer not benefit from her likeness.

I don't think that she would be awarded any payment for "modeling fees" for being in the photo, as presumably she was already being paid and was in the course/scope of her employment when the photo was taken.

I'm guessing that a lawyer will recommend simply sending a cease and desist letter to the company regarding the usage of her image in their publication. The lawyer would also be able to give you some advice about whether you could enforce the cease and desist order.

You may be able to get some settlement payout from them, but that would likely be more based on avoiding legal fees than anything.

Just my .02.