Copyright Ownership Isn't a Model Release

Over at f/8 and Beware I wrote about a young woman who is suing Virgin Mobile because a photograph of her on Flickr was picked up by some penny-wise and pound-foolish art director or ad executive and used on a huge advertising campaign for Virgin Mobile in Australia. You can read that piece, but the point is that putting your images up on the Internet means they are going to be stolen. It is that simple. Sometimes it isn't you that's done it. I've had work of mine show up on line because someone scanned the image and uploaded it. Since there are no copyright police, it's very hard to track down those uses and do anything about it. Because of the DMCA, it's very hard to recover--an ISP is effectively shielded from liability and it is almost impossible to track down the individual who can be sued, even if that person had any assets.

In this case, the girl has a privacy claim. Not the kind of privacy you might ordinarily think of, but the privacy right which is really a right of publicity--the right to license the use of her image or refuse to let someone use it for commercial purposes. That is a big-ticket mistake in the U.S., and, as near as I can tell, in Australia as well. Someone might have been able to use the girl's picture in a book or magazine article about vibrant teenagers without a model release, but the second it became about selling Virgin Mobile product, all bets are off. A couple of years ago, a professional model got an 8 figure jury judgment against a coffee company for using his image on a label--a use which exceeded the model release or contract he had signed at the time of the photography shoot almost 20 years before. Ooops.

Then there's the recent case of the photographer who claimed he had a model release for some photographs of Cameron Diaz from before she was famous. He was found guilty by a jury and went to jail because he either didn't have or forged a model release and they saw his attempt to sell the images back to Ms. Diaz as extortion (apparently, a publisher was willing to pay substantial money for the photographs, which pictured her with exposed breasts.)

The photographer in the Virgin Mobile case isn't in trouble with the girl because all he did was upload the pictures for a church group event to the Flickr share site. That's when all hell broke loose.

Let me also note that courts are very reluctant to give a blanket interpretation to a model release that states the subject has given up all rights for all time. Even a model release which is for nude photographs has been restricted in effect by a court who agreed with a plaintiff that she signed the model release for the photographs to be used in Playboy, but didn't want her body associated with Hustler. If the Governator has signed Sheila Kuehl's legislation, model releases or contracts signed by a celebrity may not be honored by his or her heirs, further devaluing a photographers files.

If you are looking to see if any of your pictures are on line, Google's image search is a fine place to start. Because I've photographed so many writers, I can do a search on a writer's name and see what comes up. I can also do a search on my name, because for some strange reason, people think that if they credit the photographer, they can do whatever they want with the image (part of the argument in the Virgin Mobile case, but they didn't credit the photographer.) This is so wrong. I used to make a substantial amount of money every year from the licensing of my stock photographs. This stream of income has almost disappeared, partly because the large agencies like Getty Images and Corbis have greatly depressed the market by selling images for a fraction of what they went for 20 years ago, and partly because there are so many "free" pictures on the Internet. The best I can recommend is to only put low-resolution pictures on-line. At least they'd look like crap blown up on a billboard, but I suspect technology will overcome that limitation pretty soon.