NOTE: This
article has been significantly edited as of January
24, 2010.
Just a little comment about the recent Judge Judy
case where it was ruled that a club promoter who used
an urban model’s picture on promotional fliers was
liable for $5,000 in damages to the model.
First of all, it’s important to note Judge Judy is
sitting in small claims court/arbitration, so that
case has no real precedential value (e.g., no other
courts will rely on that ruling as the basis for
future rulings).
However, the general premise of that case is true –
you can’t use someone’s image for a commercial
purpose, which means to make money,
without his or her written consent. That’s why 50 Cent is suing World
Star Hip Hop. They used his image on their
website in such a way that it looked like he was
affiliated with their site without his written
consent. This gave them greater traffic and more
ad revenues, which is a commercial purpose.
So what does this mean for your average club
promoter, graphic designer, blogger, etc? It means
you should get permission from the copyright holder
of an image and/or the model before putting it on a
flier or otherwise using it to make money. This
recent Judge Judy episode will likely inspire more
models to act on this type of misappropriation more
often.
• What are the damages?
In the Judge Judy case she slapped the club promoter
with the maximum allowable damages in small claims -
$5000. In reality, damages could be difficult to
prove and might have been less.
In California, for example, “The injured party may
recover (1) the greater of $ 750 or actual damages,
and (2) any profits attributable to the unauthorized
use and not accounted for in computing damages. In
establishing profits, the burden is on the injured
party to prove the gross revenue, and on the violator
to prove deductible expenses. The injured party may
also recover punitive damages, and the prevailing
party is entitled to attorneys' fees and costs.”
(C.C. § 3344(a).) That's a lot to digest, but the
reality is that it would be difficult for a model
prove what revenues a club made due to using her
image on a flier without hiring a forensic
accountant. Also, since there are no attorneys
allowed in small claims court, there would be no
legal fees recoverable, although some filing fees
might be allowed. So that might mean just $750 in
damages for the club promoter (in California).
• Exception for Newsworthy Matters or Matters
of Public Interest
One important exception to the invasion of
privacy/right of publicity claim is for newsworthy
matters. You can use a model or celebrities image on
your website if it is associated with a newsworthy
matter or a matter of public interest. That is how
Bossip.com and Media Take Out get away with using
those pics of Beyonce, Melyssa Ford, Ahsanti, etc. to
drive traffic to their site without being sued.
That’s also one reason why informational blurbs
almost always accompany my model postings, as opposed
to it just being straight photos.
However, even when the matter is not newsworthy,
there’s some evidence the right to privacy might be
slightly reduced on the internet. Enter United
States v. Gines-Perez, 214 F. Supp. 2d 205, 225
(D. Puerto Rico 2002). In that case the court held:
"[P]lacing information on the information
superhighway necessarily makes said matter accessible
to the public, no matter how many protectionist
measures may be taken, or even when a web page is
'under construction.'" "[I]t strikes the Court as
obvious that a claim to privacy is unavailable to
someone who places information on an indisputably,
public medium, such as the Internet, without taking
any measures to protect the information."
In terms of copyright (the photographer's cause of
action for unauthorized use), which is different from
invasion of privacy (the model's cause of action for
unauthorized use) the Fair Use Doctrine may permit
news related use without permission as well. "The
Fair Use Doctrine is codified at 17 U.S.C. § 107 and
states that “the fair use of a copyrighted work..for
purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom
use), scholarship, or research, is not an
infringement of copyright. Fortunately for bloggers,
most of what they do is, at the very least, criticism
or comment.” (See, Miller, Bloggers, Is Your Content Safe
Under The “Fair Use” Doctrine?, BlackWeb
2.0,)
The bottom line is that using images of models on
fliers or the internet for a commercial
purpose and without their written consent is a bad
business practice in general and can expose you to
liability. The key trigger is whether the use is
commercial in nature; that is, are you using it to
make money or promote a product or service. If so,
then chances are, whether it is the internet or just
a flyer, you will be liable to the model for damages
should s/he decide to sue.