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09/24/2007 04:54:55 PM · #26 |
Originally posted by Spazmo99:
["Virgin to Virgin" is part of the ad copy. |
Yep. for Virgin phones to Virgin phones. So what? And I agree a church going school girl should not be offended by being possibly talked about as a virgin.
I tend to agree with Nasti that they figure that is the only leg they have to stand on to try and get money from virgin. I am sure that stupid release states that it is not to be used for anything offensive, so by claiming offense at the term virgin is their only chance.
As for the model release...I am pretty sure that the photog is on the hook for that. I have not read it (neither has anyone in this thread that I know of) but it likely says that proper model releases for anyone visible is the reponsibility of the posting party. He knowingly posted it without the consent and model release of the girl and her parents. It is him that would be in trouble.
Once again Nasti is likely right...they are not pissed off at the youth counseller/photog because he does not have any money. So go after the big company and they will likely settle out of court to try and keep the legal fees down and the publicity to a minimum. (since the girl and her parents likely do not have the money to pay virgin's legal fees when they (the girl and parents) lose...)
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09/24/2007 05:05:54 PM · #27 |
I don't know why you guys are so confident that it's "virgin to virgin" that is getting them upset. The article doesn't state this at all.
"Free text virgin to virgin" means that the company (Virgin Mobile) allows free texting among customers. Ya, there may be a mild double entenre there, but it makes no sense really.
"Dump your pen friend!" is a reference to pen pals. Remember when you'd somehow get a penpal from a different country and could write back and forth? Notice Chang is asian (ie. the foreign pen-pal). She's holding up a peace sign in front of some car. I think the whole think implies that she is a dork and you could be doing much better by texting your real friend instead of this foreign loser that writes to you every month. (Talk about an antiquated form of communication.)
Anyway, is that libel? Hardly.
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09/24/2007 05:09:57 PM · #28 |
Look at the ad yourself.
You tell me, based on the ad, whether the family is upset about the "pen friend" part or the "virgin to virgin" part.
I think you guys have it wrong. I'm not disagreeing about what else is being said though.
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09/24/2007 05:12:29 PM · #29 |
Sorry for the three-in-a-row posting...but an excerpt from another article...
"People around the world who posted their photos on the Yahoo-owned Flickr website have objected to their images being used in hundreds of Australian billboard ads, accompanied by provocative captions.
The campaign -- Are You With Us Or What? -- features images from the website branded with Virgin Mobile's own slogans.
They include: Work Friends Are Just That; If You Enjoy Your Company Too Much You'll Go Blind; and Strangers Are Just Serial Killers You Haven't Met Yet.
Alison Chang, 15, had no idea that when she posed for a photograph at a fundraiser in the US, her face would become famous across Australia, under the slogan Dump Your Pen Friend. She told The Australian yesterday: "It is definitely insulting to myself. They could have thought of something nicer to say." She and her family are now considering legal action.
Alison's elder brother, Damon, said he believed the advertisement showed her as a "loser" and "dumb" and "makes fun of her".
"It is an invasion of her privacy because what they're writing is something derogatory. They're basically saying dump any friends that look like my sister," he said. "
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09/24/2007 05:16:43 PM · #30 |
[quote=DrAchoo]
"Dump your pen friend!" is a reference to pen pals. Remember when you'd somehow get a penpal from a different country and could write back and forth? Notice Chang is asian (ie. the foreign pen-pal). She's holding up a peace sign in front of some car. I think the whole think implies that she is a dork and you could be doing much better by texting your real friend instead of this foreign loser that writes to you every month. (Talk about an antiquated form of communication.)
I have to agree with you on that one. |
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09/24/2007 06:11:41 PM · #31 |
Originally posted by basssman7:
Originally posted by Spazmo99:
["Virgin to Virgin" is part of the ad copy. |
Yep. for Virgin phones to Virgin phones. So what? And I agree a church going school girl should not be offended by being possibly talked about as a virgin.
I tend to agree with Nasti that they figure that is the only leg they have to stand on to try and get money from virgin. I am sure that stupid release states that it is not to be used for anything offensive, so by claiming offense at the term virgin is their only chance.
As for the model release...I am pretty sure that the photog is on the hook for that. I have not read it (neither has anyone in this thread that I know of) but it likely says that proper model releases for anyone visible is the reponsibility of the posting party. He knowingly posted it without the consent and model release of the girl and her parents. It is him that would be in trouble.
Once again Nasti is likely right...they are not pissed off at the youth counseller/photog because he does not have any money. So go after the big company and they will likely settle out of court to try and keep the legal fees down and the publicity to a minimum. (since the girl and her parents likely do not have the money to pay virgin's legal fees when they (the girl and parents) lose...) |
Why do you think Virgin would prevail? They are responsible for having a release to use someone's likeness in their advertising. That's why no one (no one smart anyway) will touch an image without one for commercial use. If it were the photographer's sole responsibility, then agencies (and their clients) wouldn't care about model releases.
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09/24/2007 06:13:14 PM · #32 |
Bizarre - her US lawyer had better hope that he finds some evidence of publication in the US, because under Australian law (like UK law) her losses are likely to be remarkably small. And so her non-US damages will be very small.
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09/24/2007 06:18:09 PM · #33 |
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09/24/2007 06:21:04 PM · #34 |
Originally posted by Spazmo99:
Why do you think Virgin would prevail? They are responsible for having a release to use someone's likeness in their advertising. That's why no one (no one smart anyway) will touch an image without one for commercial use. If it were the photographer's sole responsibility, then agencies (and their clients) wouldn't care about model releases. |
It is not quite like copyright - people don't have copyright associated with their image. The relevant laws are usually contract (setting out what limitations the model wants to impose, if any - and making it clear if not) and the tort of passing off (passing off someone as endorsing a product). Privacy is an issue in some jurisdictions.
Damages in most common law countries relate to losses incurred. The US is a bit different (I am not an expert on US law), but the actions that are the subject of this complaint took place in Australia where there will be limited means of redress.
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09/24/2007 06:30:57 PM · #35 |
Originally posted by Matthew:
Originally posted by Spazmo99:
Why do you think Virgin would prevail? They are responsible for having a release to use someone's likeness in their advertising. That's why no one (no one smart anyway) will touch an image without one for commercial use. If it were the photographer's sole responsibility, then agencies (and their clients) wouldn't care about model releases. |
It is not quite like copyright - people don't have copyright associated with their image. The relevant laws are usually contract (setting out what limitations the model wants to impose, if any - and making it clear if not) and the tort of passing off (passing off someone as endorsing a product). Privacy is an issue in some jurisdictions.
Damages in most common law countries relate to losses incurred. The US is a bit different (I am not an expert on US law), but the actions that are the subject of this complaint took place in Australia where there will be limited means of redress. |
People don't have a copyright associated with their image, but they do control the use of their likeness.
I can't take a picture of Tom Cruise that I snap on the street (assuming I could get such a shot) and then use that image in my ad for "Cruise" control panty liners, or whatever product I happen to be selling. Being a celebrity does not give Mr. Cruise additional rights, it's just that they are the people who have their images misused most often. |
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09/24/2007 06:37:36 PM · #36 |
Originally posted by Spazmo99:
People don't have a copyright associated with their image, but they do control the use of their likeness.
I can't take a picture of Tom Cruise that I snap on the street (assuming I could get such a shot) and then use that image in my ad for "Cruise" control panty liners, or whatever product I happen to be selling. Being a celebrity does not give Mr. Cruise additional rights, it's just that they are the people who have their images misused most often. |
Mr Cruise has exactly the same rights as you and me. It is just that the value to an advertiser, and the potential damage to goodwill attached to his image (both valid ways of assessing loss in relation to the commission of a tort), is very significant. So (outside the US) Mr Cruise would be entitled to millions whereas you and I might only be entitled to enough to buy a double espresso.
Message edited by author 2007-09-24 18:38:36.
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09/24/2007 07:09:57 PM · #37 |
Originally posted by Matthew:
Originally posted by Spazmo99:
People don't have a copyright associated with their image, but they do control the use of their likeness.
I can't take a picture of Tom Cruise that I snap on the street (assuming I could get such a shot) and then use that image in my ad for "Cruise" control panty liners, or whatever product I happen to be selling. Being a celebrity does not give Mr. Cruise additional rights, it's just that they are the people who have their images misused most often. |
Mr Cruise has exactly the same rights as you and me. It is just that the value to an advertiser, and the potential damage to goodwill attached to his image (both valid ways of assessing loss in relation to the commission of a tort), is very significant. So (outside the US) Mr Cruise would be entitled to millions whereas you and I might only be entitled to enough to buy a double espresso. |
My guess is that the plaintiff's lawyers will do all they can to try the case in the US. |
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09/24/2007 11:03:05 PM · #38 |
Originally posted by DrAchoo:
Look at the ad yourself.
You tell me, based on the ad, whether the family is upset about the "pen friend" part or the "virgin to virgin" part.
I think you guys have it wrong. I'm not disagreeing about what else is being said though. |
Her lawyer is playing up the 'virgin to virgin' and church aspect more on the news programs though. Mind you, he's also making up misquotes of what she posted online as well, so typical sleazy lawyer BS.
Message edited by author 2007-09-24 23:05:49.
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09/24/2007 11:13:16 PM · #39 |
Originally posted by Spazmo99:
Why do you think Virgin would prevail? They are responsible for having a release to use someone's likeness in their advertising. That's why no one (no one smart anyway) will touch an image without one for commercial use. If it were the photographer's sole responsibility, then agencies (and their clients) wouldn't care about model releases. |
They purchased the photo from Flickr in good faith, based on the fact that Flickr assured them that it was model released. Flickr acted in good faith based on the fact that the idiot that posted it agreed that he had everyone released.
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09/24/2007 11:16:08 PM · #40 |
Originally posted by basssman7:
Originally posted by Spazmo99:
Why do you think Virgin would prevail? They are responsible for having a release to use someone's likeness in their advertising. That's why no one (no one smart anyway) will touch an image without one for commercial use. If it were the photographer's sole responsibility, then agencies (and their clients) wouldn't care about model releases. |
They purchased the photo from Flickr in good faith, based on the fact that Flickr assured them that it was model released. Flickr acted in good faith based on the fact that the idiot that posted it agreed that he had everyone released. |
There's nothing in the copyright agreement about model releases though, is there ? They also didn't purchase the picture from anywhere. CC gives free usage with attribution. Nothing about actually being allowed to use it.
From the CC license FAQ. An ad company big enough to be working for Virgin should eat and breathe this stuff. It isn't very complicated.
When are publicity rights relevant?
Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public. These rights are relevant to any work that contains human subjects, such as photographs, audio or video interviews, plays, songs, and other spoken or visual content. When transmitting this sort of content, including the voices or images of anyone other than yourself, you may need to get permission from those individuals if you are using their voice or images for commercial purposes. This is a distinct and separate obligation from obtaining the copyright license, which only gives you a license from the author (or photographer) but not from the subjects. A Creative Commons license does not waive or otherwise affect the publicity rights of subjects.
Our Podcasting Legal Guide has further discussion of publicity rights issues of general relevance.
Message edited by author 2007-09-24 23:20:58.
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09/24/2007 11:52:17 PM · #41 |
here's the link to the pic.
What idiots! |
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09/24/2007 11:56:15 PM · #42 |
That was a hilarious link. Both of the links in the register article ended up being link bombs. hehehehhe They made the Register guy look like an ass. You got to be careful when you link to someone in your blog, webpage, etc. I taught this lesson years ago to a company that insisted on linking to a neat image I had on my website. I photographed some dog doo and replaced the original with that image. heheheheheh They actually had the stones to find my email address and complain!
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09/25/2007 01:28:16 AM · #43 |
Originally posted by NstiG8tr:
WAAAAAAA F'in WAAAAAAAAA. The only thing objectionable is that somebody isn't gettin some money they think they should be getting. |
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09/25/2007 02:00:21 AM · #44 |
Originally posted by NstiG8tr:
Originally posted by NstiG8tr:
WAAAAAAA F'in WAAAAAAAAA. The only thing objectionable is that somebody isn't gettin some money they think they should be getting. |
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Yes, everybody who doesn't share your sensibilities and values is some sort of deviant -- thanks so much for clarifying that for us ... again. |
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09/25/2007 02:55:25 AM · #45 |
Originally posted by GeneralE:
Originally posted by NstiG8tr:
Originally posted by NstiG8tr:
WAAAAAAA F'in WAAAAAAAAA. The only thing objectionable is that somebody isn't gettin some money they think they should be getting. |
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Yes, everybody who doesn't share your sensibilities and values is some sort of deviant -- thanks so much for clarifying that for us ... again. |
My pleasure Paul. And thanks for the wonderful job you do here as SC.
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09/25/2007 08:26:36 AM · #46 |
Originally posted by basssman7:
Originally posted by Spazmo99:
Why do you think Virgin would prevail? They are responsible for having a release to use someone's likeness in their advertising. That's why no one (no one smart anyway) will touch an image without one for commercial use. If it were the photographer's sole responsibility, then agencies (and their clients) wouldn't care about model releases. |
They purchased the photo from Flickr in good faith, based on the fact that Flickr assured them that it was model released. Flickr acted in good faith based on the fact that the idiot that posted it agreed that he had everyone released. |
Copyright is a completely different issue and the Creative Commons license deals only with copyright, not the use of someone's likeness. There was no assurance of model release given, nor implied by either Flickr or the photographer. In fact the CC licensing agreement warns people who license such images about the separation between these two types of releases and the necessity of securing both. |
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09/25/2007 08:40:43 AM · #47 |
Originally posted by NstiG8tr:
Originally posted by GeneralE:
Originally posted by NstiG8tr:
Originally posted by NstiG8tr:
WAAAAAAA F'in WAAAAAAAAA. The only thing objectionable is that somebody isn't gettin some money they think they should be getting. |
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Yes, everybody who doesn't share your sensibilities and values is some sort of deviant -- thanks so much for clarifying that for us ... again. |
My pleasure Paul. And thanks for the wonderful job you do here as SC. |
Shhh he's just playing nice per rule #10, as usual. |
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09/25/2007 04:08:23 PM · #48 |
Originally posted by Spazmo99:
Originally posted by Matthew:
Originally posted by Spazmo99:
People don't have a copyright associated with their image, but they do control the use of their likeness.
I can't take a picture of Tom Cruise that I snap on the street (assuming I could get such a shot) and then use that image in my ad for "Cruise" control panty liners, or whatever product I happen to be selling. Being a celebrity does not give Mr. Cruise additional rights, it's just that they are the people who have their images misused most often. |
Mr Cruise has exactly the same rights as you and me. It is just that the value to an advertiser, and the potential damage to goodwill attached to his image (both valid ways of assessing loss in relation to the commission of a tort), is very significant. So (outside the US) Mr Cruise would be entitled to millions whereas you and I might only be entitled to enough to buy a double espresso. |
My guess is that the plaintiff's lawyers will do all they can to try the case in the US. |
Of course - the magnificent US legal system is the most generous to plaintiffs of this nature by far. But to make a claim, they'll have to demonstrate that a cause of action arises in the US - you cannot just go forum shopping to find one in which your damages will be highest.
From what I have read, the complainant has a small time local US lawyer working for her - so I suspect that international litigation is not one of his core skills. She really should have hired a decent Australian lawyer and gone for a quick and dirty negotiation and pay out - so much more realistic, and so much less stress, time, and risk!
Would anyone care to explain to me in more detail how this "control of likeness" thing works - is that a technical term and if so, a federal right, or state specific?
Other common law countries rely on the well established tort of passing off giving rise to a right to recover damages for loss (effectively to make the situation good as if the tort had not been committed).
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09/25/2007 04:27:41 PM · #49 |
Originally posted by Matthew:
Would anyone care to explain to me in more detail how this "control of likeness" thing works - is that a technical term and if so, a federal right, or state specific?
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It's basically considered an invasion of privacy to use a person's likeness without their consent in a commercial enterprise. Just like you have a right to privacy, a person is also considered to have a right to limit their "publicity".
More here and here |
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10/02/2007 05:50:42 AM · #50 |
Originally posted by Spazmo99:
Originally posted by Matthew:
Would anyone care to explain to me in more detail how this "control of likeness" thing works - is that a technical term and if so, a federal right, or state specific?
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It's basically considered an invasion of privacy to use a person's likeness without their consent in a commercial enterprise. Just like you have a right to privacy, a person is also considered to have a right to limit their "publicity".
More here and here |
Thanks! Useful background. It seems to be the same principle in the US as the UK and other common law countries (the principles are based in the tort of passing off) but more developed into broader rights than in most jurisdictions.
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