[jamarley]

Don't get me started on Canadians, they just put a Human RIghts museum, on top of one of the largest archaeological digs in Canada, instead of displaying the artifacts in a museum on the site. Their Human Rights Museum is a Human RIghts Violation.

Human Rights Museum mistreating First Nations heritage: archeologist - Manitoba - CBC News

I guess we all have our moments...

Kind of reminds me of the famous Peoples is Peoples speech from the second Muppet movie The Muppets Take Manhattan.

[Lou Smorels]

Getty did nothing wrong here and the model will be very lucky to prove damages in a court, especially because there isn't a name attached to the ad. Furthermore, the photographer, Jena Cumbo screwed up big time when she submitted the images to Getty. According to a different source: “A lot of people dropped the ball … I didn’t understand my contract [with Getty].” Ms. Cumbo said.

Folks here just need to chill-out and stop getting so passionate over a one-sided story.

[vonBaloney]

Either New York State or Getty or both is liable here -- the publisher is always responsible for making sure they have proper releases, rights, etc. This is also the kind of thing that a standard model release doesn't cover anyway (making the model look bad) -- they must always get permission from the model for the specific ad in that case. Whether or not the photographer understand their contract is completely irrelevant -- if the model didn't give explicit permission for this ad/campaign, then somebody is liable.

[Ms.Information]

[…] a different source[…]

A Brooklyn woman is positively furious that a photo of her[…]

looks like a reliable source

[…]Whether or not the photographer understand their contract is completely irrelevant[…]

i‘m too lazy to look it up myself, with whom does Getty make their contracts? The Person making the pictures or the people depicted? Wasn‘t it the photographer who sold the picture? Wouldn‘t that make her liable? I do not believe, that the government agency can be held liable. Surely the duty to ascertain the proper copyrights lie with the commercial entity dealing in copyrights.

[vonBaloney]

looks like a reliable source


i‘m too lazy to look it up myself, with whom does Getty make their contracts? The Person making the pictures or the people depicted? Wasn‘t it the photographer who sold the picture? Wouldn‘t that make her liable? I do not believe, that the government agency can be held liable. Surely the duty to ascertain the proper copyrights lie with the commercial entity dealing in copyrights.

Oh, possibly the photographer could be liable to the model if they misrepresented something. But that's not really the issue. A photographer can take a picture of whatever they want and whoever they want (in general, with some exceptions) with a contract, without a contract, with or without releases -- none of that matters just for picture-taking. Nothing matters until something is published somewhere, and it is the publisher that is responsible for what they publish. Then it is their responsibility to make sure they have all the proper releases and permissions, etc for what they publish. And anything that can cause an individual to look bad, be stigmatized etc has additional special rules -- a standard "commercial use" model release is not good enough in that case anyway. Even with such a release you can not depict someone as a drug addict, with HIV, as a criminal etc etc without their explicit permission. In other words, you can NEVER use stock photography for this kind of ad without hunting down the model and getting special permission. I don't see any reason why you can't go after the governmental agency in this case, at least indirectly. Rules apply to them also.

[monochrome]

You can go after the government all you want. But you can never win a judgement against the government because the governement is really just all of us acting together for the common good.

[Winder]

That model just struck gold. That will be a very worth while lawsuit and Getty will end up writing a big check.

[Winder]

because the governement is really just all of us acting together for the common good.

Now that is funny......

[Joel B]

You can go after the government all you want. But you can never win a judgement against the government because the governement is really just all of us acting together for the common good.

"The Government is made up of people usually notably ungoverned." -Firefly(tv show)

[Winder]

Folks here just need to chill-out and stop getting so passionate over a one-sided story.

There is only one side to the story that matters. If the model didn't give the photographer, Getty, or the government agency permission to use her image, then she is going to get a big check.

[MRRiley]

i did not say that. being afraid of people who are hiv positive, thinking they are lose and/or careless were the attitudes i referred to when using the three terms.

Regardless of what you think about the use of the image or whether the model was a model or a real person with HIV, my point was...

being HIV+ carries a "social stigma" in this country.

People assume all kinds of things when someone has a communicable disease. And, just like a discussion from a while back here on the forum, about telephoto pictures of people at the beach, the only context that matters in this case is the context where the activity is occurring, in this case New York. The social conventions in Europe regarding HIV simply have no bearing on this particular situation. I applaud that Europe has moved beyond the stigma, though I would be very surprised if it was as gone as you seem to indicate.

As to whether the person depicted was a model or not... as Monochrome pointed out... in this country, when we see an advertisement like this "I'm HIV+" one, we generally interpret it as "testimonial" rather than as a "dramatization" unless there is a prominent disclaimer. In this case there was none so the inference in the ad is that the person depicted actually IS HIV+. In this case, this paints the model in a false light, which is actionable against both Getty and the NYSDHR.

Mike

[MRRiley]

There is only one side to the story that matters. If the model didn't give the photographer, Getty, or the government agency permission to use her image, then she is going to get a big check.

The biggest problem is not so much the lack of a model release, though that will make any damages greater, but that the advertisement "paints the model in a false light." This could amount to "defamation," "libel," "fraud" and any number of high dollar claims.

See: False light - Wikipedia, the free encyclopedia

[MRRiley]

Either New York State or Getty or both is liable here -- the publisher is always responsible for making sure they have proper releases, rights, etc. This is also the kind of thing that a standard model release doesn't cover anyway (making the model look bad) -- they must always get permission from the model for the specific ad in that case. Whether or not the photographer understand their contract is completely irrelevant -- if the model didn't give explicit permission for this ad/campaign, then somebody is liable.

Release for a specific purpose or use is not generally necessary as long as the model is not misrepresented, particularly in a bad light... This is an excerpt from the model release which I use and which conforms to industry standards...

For good and valuable consideration herein acknowledged as received or promised, and by signing this release I hereby give the Photographer and his Assigns my permission to license the Images and/or to use the Images including my likeness in any Media for any purpose (except pornographic or fraudulently defamatory) which may include, among others, advertising, promotion, marketing and packaging for any product or service. I agree that the Images may be combined with other images, text and/or graphics, and cropped, altered or modified at the photographer’s discretion.

Note the part in BOLD RED. This is what protects the model from a photographer, an agency or a publisher's misuse of an image.

Here is the same clause from Getty's model release.

For Consideration herein acknowledged as received, and by signing this release I hereby give the Photographer / Filmmaker and Assigns
my permission to license the Content and to use the Content in any Media for any purpose (except pornographic or defamatory) which may include, among others, advertising, promotion, marketing and packaging for any product or service. I agree that the Content may be combined with other images, text, graphics, film, audio, audio-visual works; and may be cropped, altered or modified. I acknowledge and agree that I have consented to publication of my ethnicity(ies) as indicated below, but understand that other ethnicities may be associated with me by the Photographer / Filmmaker and / or Assigns for descriptive purposes.

Note the almost verbatim language... Getty is gonna fry over this. So will the NYSDHR. The photographer herself should bear no liability since she never foresaw or intended the use in such a misleading advertisement.

[magkelly]

She's not the only one who is upset by this I'm sure. The thing is about HIV ads like this is the people that pose generally are NOT models but real people living with HIV. I have a friend who is who has modeled for a campaign just like this one. Like it or not even in this day and age there is a stigma associated with having HIV. This woman has had people assume she is HIV+. It has impacted her work and her social life already. There are people who won't hire her, who won't date her now because they think she is. Lame? Yeah, but that's the reality of living with this.

FYI, my friend was deliberately fired by his employer at one point when they found out he had HIV. He got diagnosed when I was working with him. He was an excellent manager and up till then they could not say enough nice things about him. But once they found out he was diagnosed with HIV they went out of their way to find a so called legit reason to fire him so that his maintenance care could not impact their insurance costs. IMHO he should have sued them but he's just not the type. He let it go. Me? I would not have. I think what they did to him was nasty and I actually started looking for a new job shortly after because I did not want to work for those people, and btw, that WAS the reason they fired him, the owner unwisely admitted as much to me at a business lunch. Her whole perception of him changed the minute he was diagnosed. It was just sickening.

What she is saying is true. Getty should not have done this. It's just not how a campaign like this usually works and it's disrespectful, not just to her, but also to the people who are HIV+ and the challenges they face to do this. It's not easy coming out of the closet to admit you have this disease. It takes guts to stand up and be a role model and to do a campaign like this. They should have hired real people with HIV to pose for these posters. She has a legitimate complaint though because it's so commonplace for campaigns like this to use real people with HIV that she will be assumed to now have it and it will definitely impact her career and her life in very real way. It shouldn't. But it still will.

[eastman]

...Getty is gonna fry over this...

Not necessarily. The image use violated the contract requirements Getty placed upon NYSDHR. I highly doubt Getty had any direct involvement with the creation of the ad. The image probably was sourced through one of the microstock divisions owned by Getty, so the payment to Getty was likely under $100.

... So will the NYSDHR. The photographer herself should bear no liability since she never foresaw or intended the use in such a misleading advertisement.

The only responsibility is on the ones who used the image improperly. NY requires releases for anything other than news and editorial, and they didn't have one.