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04/09/2004 04:08:59 PM · #1 |
DAYTON, Ohio (April 9) - Most women are eager to show off their wedding photos. But Michele Hemphill is suing to get a picture of her drinking whiskey and smoking a cigarette in her wedding dress off store shelves.
The photo was taken 22 years ago while Hemphill was with her bridesmaids before her wedding. It's featured on a greeting card with the caption: "Intoxicating Love." Inside it says, "Isn't love intoxicating? Congratulations on your special day."
Hemphill, a mother of three who works at an assisted living community and is active in her church, seeks damages of more than $25,000 for invasion of privacy, publication of private matters, intrusion upon seclusion and slander in her lawsuit filed in U.S. District Court.
She asks that all copies of the photograph be destroyed and the card be removed from retailers.
Named as defendants are Wallace McNamee of Hilton Head, S.C., who took the photo; Corbis Corp. of Olympia, Wash., an online digital image company; and Portal Publications Ltd. of Novato, Calif., a greeting card publisher.
Defense attorney David Shough said his clients did not want to comment.
McNamee was on assignment for Newsweek doing a story about families in the Springfield area when he took the picture, which Hemphill never authorized to be used on greeting cards, the lawsuit says. He licensed the photograph to Corbis, which licensed it to Portal in January 2003 for "nonexclusive use on greeting cards and postcards for worldwide distribution for a three-year period," the lawsuit says.
Hemphill learned of the card on July 31, 2003, when a friend received it. The card is available at retailers in the Dayton and Springfield areas, the lawsuit says.
Hemphill's attorney, Richard Schulte, said Portal has removed the picture from its Web site, but not from store shelves.
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04/09/2004 04:27:38 PM · #2 |
I'm really curious to see how this unfolds. Had they photoshopped the whiskey and cigarette in, then sure, it's slander. But if the photo was taken as is, I don't know if she really has a legal standing in this matter. It's not being used for advertising purposes, and as such, a model release is not required. The only angle I see is if she had a reasonable expectation of privacy when the photograph was shot. If not, there isn't much to go on.
Then again, I am not a lawyer.
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04/09/2004 04:36:19 PM · #3 |
Any commercial use, not just advertising, requires a model release.
If this was a casual moment with the bridesmaids, and this photographer was not hired by the wedding party, then I think (for me) there would be a "reasonable expectation of privacy" -- a typical private "for us girls only" moment before the public ceremony.
Good thing Mr. Gates has deep pockets .... |
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04/09/2004 04:40:39 PM · #4 |
Originally posted by Trinch:
It's not being used for advertising purposes ... |
Cards are displayed so the cover is the first thing seen. It is very much a part of advertising that card over those placed next to it.
David
Message edited by author 2004-04-09 16:41:01. |
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04/09/2004 04:49:31 PM · #5 |
As I said, I am not a lawyer. I was under the impression that greeting cards were subject to Editorial use rules. Then again, that raises a personal question. I have a print available from my March Free Study. In the image there is a clown of whom I did not obtain a release. Is that also a violation or can one claim he isn't recognizable?
Print
Message edited by author 2004-04-09 16:55:36.
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04/09/2004 05:13:08 PM · #6 |
More power to her. I hope she wins the case.
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04/09/2004 05:32:56 PM · #7 |
Originally posted by amsmyth:
The photo was taken 22 years ago while Hemphill was with her bridesmaids before her wedding... |
Hmmm... Would a statute of limitations come into play here? I mean, the woman likely isn't even recognizable from that photo anymore (...unless she's into botox????).
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04/09/2004 06:46:56 PM · #8 |
Originally posted by Trinch:
As I said, I am not a lawyer. I was under the impression that greeting cards were subject to Editorial use rules. Then again, that raises a personal question. I have a print available from my March Free Study. In the image there is a clown of whom I did not obtain a release. Is that also a violation or can one claim he isn't recognizable?
Print
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it is always a tricky matter when it comes to ownership and whatnot of a picture of people...
In the case with the clown, you have implied permission just by the way he gave you (the camera operater) a thumbs up and is looking at you.
As with the case of the wedding photo.
Who not many people would allow a photo to be taken of them drinking and smoking before the wedding.
And were these photos authorised after development by the lady?
Anyway, anything even a photo can be used for private and personal use with out the direct permission of the subject of the photo. If the person objects or is not aware of the camera there should be no photo to argue about.
Yet, once this photo is used in any way to make money, than there is a problem.
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