Here is a current litigation right out of Ed’s files.
Facts: A young “All American” handsome man and attractive woman carefully plan out their dream wedding. They are right out of central casting. Both bride and groom would be perfect and if this had been a “regular” commercial shoot, both would have been cast. But here neither is a professional model nor aspires to be one.
The ceremony was held at the bride’s family home with some intimate friends and family in attendance. The reception was held at Atlantis Marine World on Long Island. Atlantis is a sprawling upscale complex located out on Long Island and is comprised of The Long Island Aquarium (a major tourist attraction), catering facilities, a Hyatt hotel, a separate smaller boutique hotel, a marina and two gas stations.
Bride and groom arranged for a wedding photographer and their agreement makes it clear that no images from the wedding may be used by the photographer without written consent of any subject of any photo, except inclusion in the photographer’s portfolio. Advertising use being strictly prohibited without written consent from the subjects. As planned, a beautiful wedding ceremony was had at the bride’s family home, photographs were taken at a nearby beach, and later in the day festivities ensue at Atlantis. All goes well at the reception and as they say, a good time was had by all. There are no problems with the photographs or the photographer. But the story does not end there. If it did we’d have nothing to write about.
Many months later, the bride and groom come to learn that several of their wedding photos were being used in various media to advertise Atlantis. Additionally, photos taken on the beach, miles away from Atlantis, have been Photoshopped to make them appear to have been shot at Atlantis. The images among other things, falsely portray Atlantis has owning the beach where the images were shot. Those images and others are being used by Atlantis in a massive advertising and promotional campaign in media including but not limited to:
– TV commercials airing during shows like The Daily Show, The Colbert Report, Say Yes to the Dress;
– You Tube videos advertising Atlantis;
– direct mail postcards to engaged couples shopping for wedding venues;
– wedding trade shows;
– website(s) cross promoting various of Atlantis’ venues ie The Long Island Aquarium;
– full page print ad in Bridal Guide Magazine;
– multiple wedding websites such as Martha Stewart Weddings, Wedding Wire, Wedding Bee, The Knot, and others.
No permission for such use was sought or obtained from either half of the happy couple. Neither bride nor groom would have consented to such use in any event. NY law, as set out in The New York Civil Right Law Sections 50, 51, is crystal clear: a written consent by the person in the photograph is required to employ the use of a person’s photograph, image, portrait or likeness for trade or commercial purposes, prior to any such use. The failure to obtain such consent is a misdemeanor under Section 50 and the aggrieved person whose image was employed without consent may seek monetary relief, punitive damages if the use was “knowing”, and an injunction preventing use.
Representing the plaintiffs, Ed made a motion for “Summary Judgment”. In plain English, this is a request (rarely granted) for the Court to officially declare the plaintiffs “winners” and for permission to go to a jury to let it assess and determine how much money the plaintiffs should receive via compensatory and/or punitive damages.
This motion was made after depositions of all parties were taken, tons of documents produced and two oral arguments before judges in Kings County NY Supreme Court, were had. Rather than write an extensive decision, which the press likely would have preferred, the judge simply wrote two sentences, stating that the plaintiffs’ motion on liability is “hereby granted”, and that the damages will be determined by a jury. Liability as a matter of law has now been determined without the need for days of testimony establishing the violations of law. It is as if the judge told the plaintiffs “You win, you are right and as per your attorneys’ request a jury will decide what/how much you are entitled to”.
Now, this decision will not likely get any publicity because the judge did not recite all of the facts that people who happened to be in the courtroom during oral argument heard. Here, an upscale wedding facility who was paid in full for their services, simply elected to employ their customers wedding photos for their advertising… well, everywhere. It didn’t matter to the defendant that neither the bride nor groom were asked for permission or that NY Law specifically requires written permission. Fortunately it did matter to the judge.
The case will now go in front of a jury to determine what the nature and extent of what plaintiffs’ awards will be. The jury will be advised by a judge that the husband and wife have “won” and that it must determine how much they are entitled to whether by way of actual and/or punitive damages.
This is a big decision which upholds the clear requirements of NY law to get signed model releases for use of the photo of a person for trade or advertising purposes and it is just two sentences in length. Only practicing attorneys who were in the courthouse at the time of the decision know about the case and it was the subject of courthouse gossip given the rather interesting facts. The judge knew the law and that the defendant was liable under it. Brevity is the sole of wit and truth.
We will keep you posted. But your take away is get a signed release for any image that could/will be used for trade or commercial purposes. Better still, get a release all of the time because as Jack and I always say, “Ya’ never know”.
#1 by DonS on July 21, 2015 - 7:55 pm
I hope Atlantis has to dig very deeply into their pockets.
The question in my mind is, how did Atlantis come by photos of sufficient file size that they could use them in all the media mentioned? Thanks. 🙂
#2 by Jack and Ed on July 22, 2015 - 2:47 pm
Don, They got it from the photographer who showed them the images. He is not involved in the litigation. You don’t need large file sizes these days. Some of Ed’s cases involved fairly small files.
#3 by Matt Timmons on July 22, 2015 - 4:45 pm
That was also my question- is the photographer willfully involved in the commercial licensing of the photos? If so, he really betrayed the trust of his client.
#4 by Jack and Ed on July 22, 2015 - 4:53 pm
He wasn’t in the suit because he only showed them the images, he wasn’t involved in their using the images. It’s like you showing a venue “Hey, look at what a good photographer I am.” This was not a case of “Here’s some photos you can use.”
#5 by Edward Greenberg on July 22, 2015 - 10:27 pm
A Stella Artois 12 bottle package was distributed all over the USA, Europe and elsewhere using (only) several low rez images. We have had many infringement and model cases where only low rez images were used including in some high profile, expensive campaigns.
#6 by Matt Timmons on July 23, 2015 - 3:15 pm
Regarding the photographer, I had the exact same experience when I first switched to digital photography. I shot some beautiful twighlight photos of an apartment complex I lived at with my awesome new camera. I emailed them some samples and asked if they wanted to use them, for payment of course. They used them alright, just without my knowledge or consent. I found them all over their advertising materials. When I brought this to the owner’s attention, they said that because I emailed the photos to them, the photos became their property. Ha! I consulted an I.P. lawyer who told them otherwise. They quickly removed all the photos. This was in 2003, before the days of me knowing the important value of registration before any distribution. No lawsuit, but the lying thieves sure backed down quickly.
#7 by M Hussey on July 24, 2015 - 10:06 pm
I’d like more info on the case to be addressed. Such as:
What was the photographers involvement? If he wasn’t party to the illicit use, is he not entitled to a summary judgement as well?
If he did knowingly provide or sell the images to the facility, is he now exposed to risk of a lawsuit from the facility for the damages they’re having to now pay?
I assume there isn’t any applicable verbiage in a contract that the facility made them (or the photographer) sign? I’ve heard of such contracts being used by more event centers these days.
And finally, I understand why lawyers say to get a release, but this advise is being passed along to literally everyone, and being taken to heart in situations where it isn’t relevant or called for. Is it really kosher to insist that wedding clients sign away their rights and allow their image to be used for literally anything, for example?
#8 by Jack and Ed on July 26, 2015 - 8:56 pm
From Ed: If the photographer had any potential liability in this matter he/she would have been named as a defendant. He/she was not so named and thus any questions you might conjure would not apply.
Secondly, there was no “saving language” of any kind anywhere which even remotely implied or inferred that the venue maybe, just maybe had any rights to alter and/or use the images period. This is one of the reasons that the judge determined that a trial on liability was not necessary as the defendants had no legal defenses to even “try out” on a jury.
Many infringers in model cases or copyright cases simply negligently or intentionally ignore the law. If such were not the case, many lawyers would need to hang “for rent signs” on their law offices. Most infringement cases are very straightforward on whether or not the advertiser had or did not have the right to use the image, in what media and for how long.
We DON’T suggest that wedding participants sign away their rights. We do suggest just the opposite. Any and everyone who creates images and intends to publish or license them ought to obtain written, signed releases from subjects who may or not agree to such use. If you don’t have a release, don’t use the image for advertising, trade or promotional purposes.
If you believe our advice is overkill, then you need not follow it. In such case we do suggest you start a savings plan to pay for the attorney who you will need in the very likely event you get sued.
#9 by Dawn McCormick on April 6, 2016 - 11:20 am
I’m a bit confused as to the term “trade” and it’s meaning in regard to the need for releases. Is simply the selling of photos considered “trade?” If a sports Booster Club wants to hire me to shoot action photos of a high school game and then wants to sell them online to the parents as part of a fundraiser is that considered “trade”?
Many wedding photographers post photos from the wedding for the guests to purchase surely all of the guests have not signed releases but is that not trade? Maybe not…
I’ve read the NY Civil Rights Law section 50 and 51 but that term trade has me baffled a bit
ps- Jack it has been many years but you often photographed my children for Toys R Us and you were always so great with the kids!
#10 by Ed Greenberg on May 18, 2016 - 4:54 am
Update on this case. Atlantis has changed its name to The Long Island Aquarium and the case will likely go to trial in Brooklyn for the sole purpose of the jury awarding money damages to the married plaintiffs in July or August.
The former President of Ford Models and Brooklyn native, Joe Hunter will be plaintiff’s expert witness. We will keep you posted.
Our associate Tamara Lannin now Tamara Fitzgerald, was married the past weekend. The photographers who did her wedding knew all about the case via industry gossip. Professional shooters and venues have expressed that they are incredulous at the facts of this case where no permission or consent from the bride and groom was ever sought to use their images for advertising, promotion and extensive Photoshopping.
#11 by Ed Greenberg on June 14, 2016 - 9:12 pm
Dear Dawn:
“Trade” generally means that the image was not employed for fine art purposes but rather was employed to sell or promote and product, service, business or entity (yes, even a charity). Almost but not all, “editorial” uses are exempted from the statute. “Trade” also encompasses business to business advertising or promotion. Example: use at a trade show – pun intended.
#12 by Ed Greenberg on July 19, 2016 - 3:02 pm
We can now report the conclusion of this case:
“The case was resolved by the parties in exchange for payment of a confidential sum to the Salkins (plaintiffs)”.
#13 by Capt. Queeg on July 19, 2016 - 9:17 pm
Couple of observations, matey:
1. NY rls must be written. Unlike CA and some states, which leave thieves some room to lie.
2. The venue was also committing torts and crimes against the public, by falsely claiming the beach in photos was part of the venue.
I say, make these scurvy thieves take a long walk off a short plank! Har! Har!
#14 by Ed Greenberg on August 16, 2016 - 4:40 am
The nature of the misrepresentations of the facilities via Photoshopping would have been an issue for the jury to value.
From time to time you will see us mention new Federal Trade Commission (FTC) rules that now affect how a model may be used in certain ads. ie it is against FTC rules to falsely portray a person never a patient of a dentist/doctor as a “satisfied patient” or “false identity coupled with false endorsement”. Use of the term “actor portrayal” “model portrayal” is required under some circumstances. Actor wearing white lab coat and stethoscope looking like a doctor must be labeled as an “actor”. More federal intervention in traditional state laws regulating false or deceptive advertising.
Law also applies to the financial industry ie “XYZ funding saved my business” – Joe N. There is no “Joe N” and thus no saved business. FTC violation may serve to enhance the value of a copyright infringement or unauthorized use of a model’s image case(s). More on that topic coming soon.