December 4, 1998
PhotoDisc published a nationwide apology to the Simon family in USA TODAY on November 30, 1998. The ad was 5 1/4" x 6 1/4" and included the offending photo and the following text: Have you seen this image?
The image shown below has been used in a variety of commercial projects ranging from brochures to packaging materials over the past several years. We regret that this image was supplied to PhotoDisc without a valid model release and distributed without the knowledge or permission of the Simon family. We deeply regret and apologize for any disconfort or embarrassment this may have caused the Simon family.
To help make amends, PhotoDisc will donate $5,000 to the charity of the Simon family's choice." It is our understanding that the total settlement with the Simon family is much higher, but the actual out-of-court agreement will not be made public.
November 6, 1998
PhotoDisc has been sued by Victoria Newell-Simon, and her husband Keith Simon over the repeated use of a photo of the couple and their newborn daughter McKenzie. The photo shows them sitting on the ground in a park and was taken for their personal use by a professional photographer. The photo later made its way into the PhotoDisc collection.
This suit was first filed in June 1997 and according to Forbes magazine could result in a settlement of more than $1 million for the plaintiffs. The image in question is number 2391 on Volume 2 of PhotoDisc's CD-ROM series.
In an unrelated action, attorney David Gallo, who represents Karla Lyon, filed in San Diego Superior Court on October 2nd seeking certification of a class action against Corel and Fry's Electronics. The complaint asks for damages for nearly 1,000 people whose photos are allegedly being sold without their permission. The photo of Lyon shows her diving into a pool and was probably taken during a competitive diving event, according to her attorney.
Lyon does not claim her privacy was invaded. But she, and other potential class members, were harmed by the unauthorized sale of their likeness and by not being paid royalties, the complaint alleges. The California Civil Code forbids the use of a person's name, voice, signature, photograph or likeness, in any manner, on or in products, merchandise or goods or for purposes of advertising or selling or soliciting purchases of products, merchandise, goods or servicves without such person's prior consent.
Also named in the suit against PhotoDisc were West Stock which was doing business with PhotoDisc under the trade name PhotoLink, Zephyr Pictures which supplied the image to West Stock and photographer Melanie Carr. West Stock has supplied more than 8,000 images in the PhotoDisc collection and was the principle image supplier during the early years of this royalty free company.
According to sources at Zephyr, Ms. Carr originally hired Mrs. Newell-Simon for a photo shoot of a pregnant woman. Mrs. Newell-Simon signed a release for this shoot. However, in lieu of payment for the pregnancy shoot, Mrs. Newell-Simon asked Ms. Carr to take some family photos after the baby arrived. Ms. Carr agreed and when the family pictures were produced no release was signed and there was no discussion about stock usage. Later, the photo was delivered, in error, to West Stock and still later to PhotoDisc. Ms. Carr is an experienced and prolific stock photographer.
West Stock would not comment on the matter while there is on-going litigation. This image is on the second disc produced by PhotoDisc, and has been in royalty free circulation since the early 1990's. Over 10,000 copies of the disc have been distributed.
In 1997 the Simons began to hear that their family photo wasappearing in a lot of strange places. The Christian Coalition featured them as the "June family" in a calendar. The Coalition's politics aren't those of the Simons. Costco used Keith's receding hairline to promote Rogaine, a baldness remedy. The San Diego Union-Tribure put their image atop a personals ads for single parents. Two trade magazines had them illustrating a story on chronically ill children. One of the things that seems to have percipitated this suit was the fact that many of the early uses were offensive to the Simons.
One of the risks associated with supplying images through royalty free products is the likelihood that users tend to resort to royalty free as a way to obtain the images they need when they have difficulty finding models who will agree to promote their products and services.
The Simon's photo also appeared in a Macy's sales catalog that went into at least 3 millionhomes. An ad for a Quicken software product called Family Lawyer had a 9.3
From a legal point of view, one of the problems with Royalty Free is that it is very difficult to turn off future uses. PhotoDisc sells a large portion of their product directly to the customer and thus has pretty good records as to who has purchased specific products. Not many, if any, of their discs >are sold at retail. For Corel, this is entirely another matter. A large percentage of their discs are sold at retail where they have no tracking of the purchaser. Thus, Corel will probably probably find it very difficult to turn off future uses.
The Simon image is not on PhotoDisc's web site and PhotoDisc has withdrawn two discs - V2 and V32 - from the market. Sources tell us that PhotoDisc has contacted their distributors and is trying to identify all buyers. (Much of the sale of CD-ROM products overseas is handled through distributors.)
We also understand from customers that in a few instances in the past PhotoDisc has offered "replacement images" when a problem has arisen with a particular image. PhotoDisc has had some trademark as well as model release problems.
In an effort to try to deal with similar problems in the future, PhotoDisc has sent out a letter to most of their photographers requesting copies of their releases and indicating that if they do not receive them in a short period of time they will repress the discs on which they appear and release new versions.
While model release problems occasionally arise with Rights Protected agencies as well, they are usually more localized and errors are more easily corrected. When an agency or photographer is notified of a problem, they can immediately remove the image from future use and distribution.
In the Forbes interview, Heather Redman, general counsel for Getty Images,said, "As the industry gets bigger and better known and the players in it get bigger and better known and the general litigation environment gets more and more difficult, the potential for awards gets larger."
These cases point out that the "hassle free" nature of royalty free photography may be somewhat of an illusion. It may be "hassle free" in the beginning to not have to discuss the specifics of a planned usage, or to confirm that the release actually exists and is adequate for that usage, but it may present a lot of hassles for the customers down the road.
In the PhotoDisc case, all purchasers of the product were sent a letter to determine if they had used the image. At that point they had to research their usage of the product and describe any usages made. If they used the image they were then named in the law suit because they used it for commercial purposes without a valid release.
There are many potential uses that might be offensive to different models. Some such uses may seem benign to some people, and totally unacceptable to others. But it is the model's reaction that is critical.
Lessons To Be Learned
There are several lessons for photographers to consider when supplying images to a royalty free company, or to any stock agency that will be conducing on-line transactions without negotiations
Are all images that are model released clearly and accurately identified as having such releases?
Make sure you have solid identification with each release so they can not be mixed up. A polaroid of the model, attached to the release is the best solution. Some organizations are reqiring a copy of a photo ID to also be attached to the release so they can be sure the person signing is who they say they are.
Any non-released images being offered for sale or licensing should have a clear statement, delivered at the time of sale, that indicates that it is the obligation of the purchaser to obtain proper releases before making any commercial use of the images. The agency will have some releases available, but the user must check with the agency to be sure that the release covers the specific use that is planned.
Is there any way to restrict the "e-commerce" customer from using the image in connection with a "sensitive issue" without requiring negotiation with a human? Determining what is "sensitive" is a very abstract concept and can not be defined as having a universal meaning for all people.
If a photographer is considering supplying an image to a RF distributor he or she should be sure that the releases for all people in the photograph are sufficient to allow someone to use the picture in a way that might be considered degrading by one of the individuals. If the release won't do that don't put the image into the RF market.
Recognize that the clients who have trouble getting images through traditional "Rights Protected" agencies due to the nature of the product or service they are trying to sell, are naturally drawn to royalty free. It is for this reason that a high percentage of the uses made of royalty free images may be offensive to the customers.
Recognize that in cases where future usage can not be shut off the exposure for the seller is tremendous. It never goes away.
Make sure that in the license given the user, is it clearly pointed out that any image used for any commerical purpose whatsoever, must have a model or property release and the user should be required to request a copy of that release before using the image.
As a photographer, determine who would be responsible if a use is made without an acceptable release? What agreements, if any, did you make to ndemnify your agency? If as a photographer you told the agency that there was no release, and then the agency allowed the image to be used as if there was a release is the agency solely responsible? In the new Tony Stone agreement the photographer is responsible, even if he or she told the agency there was no release, or if later it turns out that the release was inadequate.
You may have to pay litigation costs, even if you later win your case.
Check your general business liability insurance. Is this type of problem covered? Do you have "errors and omissions" coverage? A lot may depend on the genesis of the event. If it was a "mistake" or inadvertent it might be covered. If it was intentional fraud, or gross negligence it would probably not be covered.