Judge Judy rules on an internet-related issue

[Steven Carl Kelly]

My wife loves Judge Judy. She DVR's and watches her shows every day. Yesterday she had me watch an episode because it was a case regarding an internet issue...

In a nutshell:

A 20-something woman sued a graphic designer and a nightclub owner. She had some bikini photos taken by a professional photographer, and the photographer posted those photos on his Web site. Somewhere along the way, her photos ended up on a photo-sharing site. She didn't post them there, and apparently neither did the photographer.

The graphic designer was hired by the club owner to create a flyer for his business. The designer went to the photo sharing site, which has a statement that the images on the site may be freely incorporated into your own projects. The designer took the young woman's bikini photo from the site and PS'ed her onto a stage with a stripper pole on it. They printed it on the flyers and distributed them to advertise the business.

The woman sued for $5,000 (the small claims limit in her state). The club owner's defense was that the designer made the flyers, not him. The designer's defense was that the site where he obtained the photo has a very prominent statement on every page that the images may be freely incorporated into their own projects. The designer had printed copies of the Web site with the woman's photo for downloading, along with the statement on the site saying the images were cleared for use.

Judge Judy awarded the woman a $5,000 judgment against the club owner. She stated that the club owner had illegally profited from the woman's image, and that the flyers were the responsibility of the club owner regardless of who did the graphic work, and that the statement on the Web site did not absolve him from getting a signed release of her image for use in the flyer.

The photographer also attempted to sue the club owner and designer for an additional $5,000 saying they misused the photos from his site. Judge Judy dismissed his suit, however, since she didn't believe that the woman had given the photographer to post the images on his site in the first place. She demanded to see a signed statement from the woman allowing that, but he could not produce one.

Just something to think about when you hire a graphic designer.

[garyv]

The graphic designer should now be able to sue the owner of the photo-sharing site. They just need to keep suing up the line until they get to the source of the pictures.

This could be a good warning though, for those in here that use the fake testimonial pictures.

[Raydal]

And all of the people involved in this case were from the same
geographic area? This is incredible.

It's hard to think that the graphic artist, the website owner and
the woman were all locally accessible to each other, or did some
fly in for the case?

-Ray Edwards

[Steven Carl Kelly]

Originally Posted by Raydal

And all of the people involved in this case were from the same
geographic area? This is incredible.

It's hard to think that the graphic artist, the website owner and
the woman were all locally accessible to each other, or did some
fly in for the case?

-Ray Edwards

Judge Judy is shot in California. Her cases come from all over the US. Not sure where the litigants were from, but they all fly out to L.A. for the taping.

[TheRichJerksNet]

Originally Posted by garyv

This could be a good warning though, for those in here that use the fake testimonial pictures.

And those that use fake/junk traffic means to get an article on the most viewed list of EZA ...

James

[Killer Joe]

Originally Posted by Steven Carl Kelly

My wife loves Judge Judy. She DVR's and watches her shows every day. Yesterday she had me watch an episode because it was a case regarding an internet issue...

Yea Steven, wives can be very good at stripping every last shred of dignity away from their man.

KJ

[mmurtha]

I'm surprised the site owner that posted them on his site didn't get sued as well.

[Alexa Smith]

Originally Posted by Steven Carl Kelly

Judge Judy awarded the woman a $5,000 judgment against the club owner. She stated that the club owner had illegally profited from the woman's image, and that the flyers were the responsibility of the club owner regardless of who did the graphic work, and that the statement on the Web site did not absolve him from getting a signed release of her image for use in the flyer.

Good for her - good judgment!

Originally Posted by Steven Carl Kelly

The photographer also attempted to sue the club owner and designer for an additional $5,000 saying they misused the photos from his site. Judge Judy dismissed his suit, however, since she didn't believe that the woman had given the photographer to post the images on his site in the first place.

Well, that decision's based on the facts given in evidence, obviously, not purely on the law itself. Without a jury, judges have to determine the facts as well as apply the law. You can't really comment without having seen the witnesses and judging for yourself what permission(s) she gave the photographer.

[Aronya]

If a photographer takes a picture, it belongs to him. Unless he has agreed in advance not to do so, he is allowed to use it to demonstrate his service, as in a portfolio, without anyone's permission. He cannot use it in any type of advertising or solicitation without permission of the subject.

[Killer Joe]

It's important to remember that JJ is just reality TV, and those "cases" do not establish 'case law' nor are they intended as anything but entertainment.

Since no fines are paid by the losing party, but by the shows' producers, they can come to any conclusion that they deem 'worthy'.

KJ

[willdean]

I often wonder how many graphic designers who build websites and flyers are using graphics and photos from the wrong places. There are so many people in the website building business, I am sure it happens all the time.
Hopefully this will not become a big issue.

[Steven Carl Kelly]

Originally Posted by willdean

I often wonder how many graphic designers who build websites and flyers are using graphics and photos from the wrong places. There are so many people in the website building business, I am sure it happens all the time.

I would say that you are correct.

[seasoned]

Judge judy decided rightly! What probably happened was that Google indexed the photographers files and/or the sharing site went there. IT was probably run by some foreign idiot, or some jerk that figured the law didn't mean anything to him/her. The webmaster SHOULD have simply gotten a picture from the nightclub owner. It is unconscionable, and STUPID, that he would have done this without EXPLICIT permission to do so!

Steve

[jacktackett]

Is this true even for a private individual? Don't I have to either sign a release or a contract for a photographer to use my image?

This just goes to show you need to have work for hire and other contracts in place or signed releases before using intellectual property.

If its not in writing, it didn't happen is an old saying we used in the Government.

best,
--Jack

Originally Posted by Aronya

If a photographer takes a picture, it belongs to him. Unless he has agreed in advance not to do so, he is allowed to use it to demonstrate his service, as in a portfolio, without anyone's permission. He cannot use it in any type of advertising or solicitation without permission of the subject.

[Aronya]

Originally Posted by jacktackett

Is this true even for a private individual? Don't I have to either sign a release or a contract for a photographer to use my image?

This just goes to show you need to have work for hire and other contracts in place or signed releases before using intellectual property.

If its not in writing, it didn't happen is an old saying we used in the Government.

best,
--Jack

Hi Jack,
Yes, it's true for a private individual. If I take your picture, whether you pay me to do it or not, that image belongs to me. If I give you a copy, you do not have the right to make copies of it without my permission, whether you paid me for the image or not.

[Jeremy Kelsall]

Originally Posted by TheRichJerksNet

And those that use fake/junk traffic means to get an article on the most viewed list of EZA ...

James

Yeah, because that is against the law...

[debra]

Originally Posted by TheRichJerksNet

And those that use fake/junk traffic means to get an article on the most viewed list of EZA ...

James

I take it that your still ticked off about that post. No stress...he confusion lies within this forum still...what goes around;comes around.

And on an up note...

I saw that show. I just love Judge Judy too. I found it quite intertaining. The whole time I was thinking about Josh Anderson and the way he throws the hammer down when this exact same issue shows up on the forum.

[garyv]

Originally Posted by TheRichJerksNet

And those that use fake/junk traffic means to get an article on the most viewed list of EZA ...

James

Not quite the same - That's just called working the system.

[Brad Gosse]

Thats why insurance companies hate webmasters and designers. Try to get a commercial policy for one of those businesses. Where I live the answer is no at any price.

Lucky for me that's not my main business.

[davezan]

Originally Posted by Killer Joe

It's important to remember that JJ is just reality TV, and those "cases" do not establish 'case law' nor are they intended as anything but entertainment.

Since no fines are paid by the losing party, but by the shows' producers, they can come to any conclusion that they deem 'worthy'.

KJ

Yup. Her show's more like arbitrating or mediating disputes, rather than establish
any kind of earth-shattering case law.

Nothing beats mainly boring yet real-world civil disputes. At least, some lawyers
tell me they're boring for the most part.

[gotcha]

Guess I better get permits for all my images now!

[GuerrillaIM]

These issues usually arise when you put the model in a compromising situation. Like if you put up a picture of a model with a slogan "I've Got AIDS!".

If this had been a flyer for a holiday company and women was PS onto a beach then its less likely to cause problems.

[actionplanbiz]

Ya Photographers need forms. thats always good policy

[Zanti]

So maybe I'm missing something on this. Are most of you saying if I go to any of the free or paid photo sites that offer royalty free photos that I would need to also get a signed release from the subject of the photo before I could use the photo on my site?

Also, that it does not matter if said site only requires a credit be given in someway to the photo site to use the photo?

Which would therefore mean that any photo used from a photo site, I would have to id and locate the original subject and obtain a release to use the photo?

If that's the case, do any of you use any of the stock photo agencies for your site photos?

Z

[MichelledGrace]

A question here:

I found a photo on stock.xchng - the leading free stock photography site and I used it on one of my Google Sniper websites, portrayed as myself.

Is it illegal? I'm not defaming the model in any way at all.

[GuerrillaIM]

Originally Posted by MichelledGrace

A question here:

I found a photo on stock.xchng - the leading free stock photography site and I used it on one of my Google Sniper websites, portrayed as myself.

Is it illegal? I'm not defaming the model in any way at all.

Putting across any sort of opinion as if it is the models without their consent can get you into trouble.

[MichelledGrace]

Originally Posted by GuerrillaIM

Putting across any sort of opinion as if it is the models without their consent can get you into trouble.

But there are terms that allow me to use it freely(royalty-free).

As long as I don't defame the model, I think it's OK?

I've got to bring it down ASAP if even portraying the model as myself is illegal.

The actual use of the model on my website is this:

I wrote a personal story, and I'm portraying the model as if the model wrote and create the website.

Should I take it down?

[Kurt]

Here's a point I think that's been missed: Because a photo is on a site that allows usage, doesn't mean the photo itself has those rights.

Any of us can download (steal) photos that aren't our own, then upload them to any of the free photo sites, then say anyone else can use them. However, we never had legal rights to do so.

Just because images are on sites that say we can use them, doesn't mean we can really use them.

I'd be very cautious to ever use people as models in pics from these free sites.

[Dave777]

A little more related food for thought on this money making issue and topic...
Recognize That Cute Picture Online? - Forbes.com

Dave

[Killer Joe]

Originally Posted by MichelledGrace

The actual use of the model on my website is this:

I wrote a personal story, and I'm portraying the model as if the model wrote and create the website.

Should I take it down?

This is not legal advice, but in most instances you will be in clear violation by doing this. Generally, you do not want to represent the model as doing anything other than what the photograph implies. And most photographs imply the model is getting their picture taken.

Implying endorsements or creating the assumption that the model is acting, or saying, or portraying a person they are not would need the permission of the model.

It's one thing to use a photo of a smiling person holding a briefcase as a representation of a happy business person, as an example, it's quite another to use the picture to depict that person expressing a stance on an issue, or to put captions that depict that individule as anything but a model without their consent.

Bottom line...you would need the permission of the person whose image you are using to stay within legal bounds for what you are currently doing.

KJ

[seasoned]

Originally Posted by MichelledGrace

A question here:

I found a photo on stock.xchng - the leading free stock photography site and I used it on one of my Google Sniper websites, portrayed as myself.

Is it illegal? I'm not defaming the model in any way at all.

It IS illegal! You are saying you are who you aren't, and tying them to your company. What if someone hauls you into court, that COULD defame the model, etc...

[seasoned]

Originally Posted by Kurt

Here's a point I think that's been missed: Because a photo is on a site that allows usage, doesn't mean the photo itself has those rights.

STILL, the photo site should have to tell WHERE they got the photo, and possibly have to pay.

[Kurt]

Originally Posted by seasoned

STILL, the photo site should have to tell WHERE they got the photo, and possibly have to pay.

Steve,

What's to stop someone from uploading graphics to Flickr from a CD they bought? How does Flickr know where the images came from?

Just because the person that uploaded the pics to Flickr, doesn't mean that person had the rights to upload them in the first place, which is my point.

[mohammad111]

Originally Posted by seasoned

STILL, the photo site should have to tell WHERE they got the photo, and possibly have to pay.

I totally agree with you. This is just insane that they give us photos and tell us to "Go ahead a use them" but when we do we get sued and we have to pay money for that.

I think that the real culprit is the Photo Sharing Site. If they say you can use it and you actually can't then that's their fault.

I don't know what you think but that's what I think.

[Kurt]

Originally Posted by mohammad111

I totally agree with you. This is just insane that they give us photos and tell us to "Go ahead a use them" but when we do we get sued and we have to pay money for that.

I think that the real culprit is the Photo Sharing Site. If they say you can use it and you actually can't then that's their fault.

I don't know what you think but that's what I think.

If you use it, you should be able to tell where it came from. This isn't just my opinion, it's also the law.

IMO, the "fault" is with the people that upload things that they don't have a right to give away.

[Floyd Fisher]

Was going to ask for a youtube link to the case....stupid me.

[KristieDean]

Originally Posted by jacktackett

Is this true even for a private individual? Don't I have to either sign a release or a contract for a photographer to use my image?

This just goes to show you need to have work for hire and other contracts in place or signed releases before using intellectual property.

If its not in writing, it didn't happen is an old saying we used in the Government.

best,
--Jack

I would think that they would HAVE to get a release. Otherwise, school photographers could use those students' images without the parent's permission...that's a can of worms.

[KristieDean]

Originally Posted by Aronya

Hi Jack,
Yes, it's true for a private individual. If I take your picture, whether you pay me to do it or not, that image belongs to me. If I give you a copy, you do not have the right to make copies of it without my permission, whether you paid me for the image or not.

Aronya,
That is true that I couldn't make copies without your permission, but I believe you would have to have a release from me to use my image without permission. (unless, of course, your contract says otherwise) Otherwise school photographers would be able to use student photos. That's a big no-no...

[seasoned]

Originally Posted by Kurt

Steve,

What's to stop someone from uploading graphics to Flickr from a CD they bought? How does Flickr know where the images came from?

Just because the person that uploaded the pics to Flickr, doesn't mean that person had the rights to upload them in the first place, which is my point.

Flickr would have to have the name of the person that uploaded them, and THAT moves responsibility up the chain. Flickr CAN'T know where the files came from ORIGINALLY BUT, by knowing where THEY got them, one can trace it down the road.

There is a REASONABLE expectation, REGARDLESS of what anyone else here might accept, that ANYONE posting pictures on a PUBLIC site where they can be VEWED by the public that they KNOW those files may actually be SEEN by the public and thus copied or downloaded! So they are BREAKING THE LAW if they do that with private pictures they have NO right to. Various sites, and probably about ANY big site, spells this out in their TOS.

BTW I am NOT saying the graphic designer should get off! What they did is WRONG in several ways! I am simply saying the SITE and/or whoever uploaded the photo, should ALSO be held to task!

Steve

[SteveJohnson]

The generally-accepted standard for graphic designers using photographs of people is that if the person in the photo is recognizable then you need to have a model's release in hand before publication in any medium.

One small note - the major photo agencies (Getty Images, Corbis, etc.) supply releases as a matter of course.

[TimGross]

Originally Posted by Zanti

So maybe I'm missing something on this. Are most of you saying if I go to any of the free or paid photo sites that offer royalty free photos that I would need to also get a signed release from the subject of the photo before I could use the photo on my site?

There are legitimate stock photo websites and there are others that steal copyrighted work and try to profit from it. It's the user's responsibility to figure out the difference, just like if you see 100,000 PLR reports for sale on eBay for $5 you have to assume that they probably don't have the rights to pass on to you the rights that they claim.

Secondly, even if you pay for an image at iStockPhoto.com or Photos.com (somewhere legitimate), read the fine print, you STILL don't have the right to photoshop the image of someone you've paid for and put them on a stripper pole, or in some other compromising position where it appears that they are endorsing something controversial.

(As always: I am not a lawyer and this is not legal advice.)

[avenuegirl]

Originally Posted by mmurtha

I'm surprised the site owner that posted them on his site didn't get sued as well.

Originally Posted by Steven Carl Kelly

The photographer also attempted to sue the club owner and designer for an additional $5,000 saying they misused the photos from his site. Judge Judy dismissed his suit, however, since she didn't believe that the woman had given the photographer to post the images on his site in the first place. She demanded to see a signed statement from the woman allowing that, but he could not produce one.

I agree the photographer should have had a contract on this. There is an easy form contract provided for photographers and videographers which covers this kind of thing - basically adds that the person shooting may use materials for their own promotion (like samples).

For non professional public pictures you can shoot just about anything if it really is in "public." But even then it does not give the end user rights to alter pictures into a compromising fashion.

For instance, I can see a group of school children walking through the Zoo. I can take pictures of them, and legally I can post those to the web. I can even put those up for sale on my website.

But the end user who purchases/takes them needs to verify if photos are for private or commercial use and a lot of times altering the pictures or stripping them out of their initial context is what can get someone into trouble.

[edynas]

I don't get it. Must be US law to sue everybody but in my mind the photosharing site owner is he one that should be sued and the graphic artist and the nightclub owner are not.

If I get photos from sites like istockphoto.com and the likes and even tho it says I can use them them freely on my website are you all telling me that according to US law I should also trace back the person on the photo and make sure they signed a "i agree my photo is used" because that is the case here....or is it a matter of sue the one that most likely has the most money? The owner of the photo sharing site isn't even mentioned as being a party in this sue you game. Because in my mind the one that should have gotten a signed release before posting it on his site is that person and if I as a designer buy or download a royalty free image I should be able to trust that. Still ruling against the nightclub owner just amazes me

Edwin

[Dana_W]

Originally Posted by willdean

I often wonder how many graphic designers who build websites and flyers are using graphics and photos from the wrong places. There are so many people in the website building business, I am sure it happens all the time.
Hopefully this will not become a big issue.

And what's really ridiculous is that with sites like fotolia or istockphoto you can get high quality images for about a buck. And avoid an expensive lawsuit.

[Gail Sober]

It's all about the model release. That's generally the document where the model/photographer enter into a contract for services and will dictate exactly how, when, where, limitations etc...

Here's the one for istock but usually photographers have a more complex one. You should always, always get a copy of the model release.

http://www.istockphoto.com/docs/modelrelease.pdf

What they did was probably a violation even if they had a copy of the model release in hand.

"by signing this release I hereby give the Photographer/ Filmmaker and Assigns my permission to license the Images and to use the Images in any Media for any purpose (except pornographic or defamatory)"

The designer could have just purchased from a content producer that specializes in that type of material and the appropriate model releases and any legal actions could have probably been avoided.

Not too smart on his part.

[Zanti]

I agree with Edwin and that is the point I was trying to make.

Those of you who say the Judge ruled correctly are you saying that none of use should use photos from istockphoto and other similar photo houses without having a signed release from the photo's subject? And, that use of a photo from istockphoto ect... without a signed release regardless what istockphoto or others say on there sites that they can be freely used is worthless?

Therefore would this mean that any of my photos (that are of me) that I put on istock or other photo houses and are used by anyone who uses istock for images for their site, I can sue, unless they track me down and get a signed release from me?

Just trying to understand.

Does this also mean that if you agree with the Judge that you do not and will not use photos from royalty free photo houses on your sites without a direct release from the photo's subject?

Thanks