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Graphical Manipulation - Beheaded and Sold?

Cliff posted more than 10 years ago | from the identity-frog dept.

Graphics 40

popdookey asks: "Can a known image of me be beheaded and marketed as someone else without my permission? I just returned home to Georgia and discovered that my head had been replaced on a favorite photograph that was now being used to promote sandwiches. It was a great photo of a few of the old-time employees and founders of a very successful restaurant franchise taken in front of its original location. The faces of the employees have been replaced with those of the wealthy but absent owners to create a more marketable and nostalgic image. It is great advertising, but 92.3% of that body is mine as was 100% of its contribution. Is this legal without my permission, and if so, wouldn't this lead to historical fraud?"

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This has got to be the strangest Ask Slashdot. (3, Funny)

amarodeeps (541829) | more than 10 years ago | (#8736106)

Except for the one I was about to post.
amarodeeps asks:
I've had reconstructive surgery more than five times in the last two years, owing to an episode of explosive diarrhea gone bad (I'm a competitive explosive diarrhea vaulter, ranked twelfth in the world). Yesterday, I found out that my left cheek (not that cheek!) was used by a doctor in an ad to promote his plastic surgery practice. Is this legal? Should I be getting royalties? How should I approach this, do I need a lawyer? Should I really be asking this question on ask slashdot in the first place?? Thanks!

Re:This has got to be the strangest Ask Slashdot. (2, Funny)

Eosha (242724) | more than 10 years ago | (#8736689)

Great. Now you've got me thinking about how "fair use" applies to my ass...

Note to self: avoid prison.

Revealed at last! (0)

Anonymous Coward | more than 10 years ago | (#8736108)

Selling sandwiches? Ah. You must be one of those hideous "Quiznos" trolls in the TV ads that made me swear not to go to that place until 2012 !

Re:Revealed at last! (1)

reanjr (588767) | more than 10 years ago | (#8762319)

I almost ran and cried when I first saw that commercial. I still can't watch it without getting the shivers. There is something deeply disturbing about those... things. They're like dead rodents with human mouths, eyes, and ears grafted on and made to float and move. And kill...

Correct me if I am wrong, but... (2, Informative)

vasqzr (619165) | more than 10 years ago | (#8736131)


For the most part, whoever took the picture, owns it.

Those paparazzi guys make a killing selling photos to the Enquirer and other tabloids.

Re:Correct me if I am wrong, but... (1)

Lonesmurf (88531) | more than 10 years ago | (#8736273)

Nope. Generally you need a model release for professional photography. If this guy didn't give one, then these people shouldn't have used this photo for any public distribution. Case closed. What a stupid question. Why ask here and not go to a lawyer?

Re:Correct me if I am wrong, but... (4, Informative)

meta-monkey (321000) | more than 10 years ago | (#8736395)

IAAPPAIKTIAAFJ (I Am A Professional Photographer And I Know This Is An April Fools Joke)

Yes, you have to have a model release in order to use someone's likeness for commercial purposes. However, they have to be identifiable. Since the guy's head is removed, he's not identifiable, so there's no legal violation.

Examples: I can take a photo of you and publish it on my personal website. I cannot take a photo of you and publish it on my business website (korphoto.com [korphoto.com] if you're interested :) ) as an advertisement (implicitly or explicitly). I can take a photo of you such that you are unidentifiable (from behind, cropped to remove your head, silhouetted, etc) and use that for commercial purposes or in advertising.

Re:Correct me if I am wrong, but... (1)

i.r.id10t (595143) | more than 10 years ago | (#8736657)

One of the exceptions is the "public place" law. Take & post all the pics you want at a parade, the mall, etc.

Re:Correct me if I am wrong, but... (0)

Anonymous Coward | more than 9 years ago | (#8745831)

Yeah, so those upskirt pics of schoolgirls on the escalator are OK then? Phew...I thought I was on the shady side of the law on that one...

Re:Correct me if I am wrong, but... (1)

jovlinger (55075) | more than 10 years ago | (#8739395)

well,

whatabout all those paparazzi pix taken with ultra-long lenses. The celebrati hardly released those pictures, and they were harldy taken in a public place.

So is a public place any place where you can be seen from without tresspassing (or perhaps not even that restriction), or printing in a tabloid not a commercial use?

Re:Correct me if I am wrong, but... (1)

meta-monkey (321000) | more than 10 years ago | (#8739794)

News photos don't count...that's that whole "freedom of the press" thing. As crappy as they are, those tabloids bill themselves as newspapers. So long as what they publish is truthful, or a reasonable facsimile thereof, it's legal. That doesn't stop them from getting sued all the time, though.

Re:Correct me if I am wrong, but... (1)

Rick the Red (307103) | more than 10 years ago | (#8736397)

What a stupid question. Why ask here
Why ask why? Check the date -- you've been trolled.

I can help.. (4, Funny)

manavendra (688020) | more than 10 years ago | (#8736140)

...if you let me know how you found out precisely 92.3% of you was on this modified picture...

I love computers!

Re:I can help.. (0)

Anonymous Coward | more than 10 years ago | (#8736219)

Apparently the average human head is about 4kg - 5kg and therefore is about 8% of your body mass. How this person worked out it was exactly 7.7% is something else though. Maybe they've gone and cut off their own head?

Do they claim 100% of the ass though?

Hi. I'm Troy McClure (5, Funny)

Anonymous Coward | more than 10 years ago | (#8736147)

Hi. I'm Troy McClure. You might remember me from such headless TV advertisements as "Don't Stand Up at Cedar Point" and "Sleepy Hollow Mattress Sale This Weekend"

Re:Hi. I'm Troy McClure (0)

kronak (723456) | more than 10 years ago | (#8739275)

The Full List: http://www.snpp.com/guides/troy.mcclure.html

Re:Hi. I'm Troy McClure (2, Funny)

frAme57 (145879) | more than 10 years ago | (#8740058)

Thank you, whoever you are, for the coffee on my shirt and in my keyboard. I didn't know it would burn so much in my sinuses and nose.

face it pal (3, Funny)

jeffy124 (453342) | more than 10 years ago | (#8736153)

all your head shots are belong to us

AYB grammar nazi (0)

Anonymous Coward | more than 10 years ago | (#8736639)

all your head shot are belong to us

simple (2, Informative)

Ashish Kulkarni (454988) | more than 10 years ago | (#8736191)

If the person who owns the copyright to the photo (that's NOT you, it's the person who took it) disagrees with it, then you can sue the offender. Else, you have to face the consequences ;-)

Re:simple (1)

hak1du (761835) | more than 10 years ago | (#8737680)

Copyright is one concern, but people do have certain rights to their own images. Generally, photographers have people sign releases when they want to user their images in commerce. That may be necessary even if only the body is used.

Why are you asking us? (0, Troll)

JoeD (12073) | more than 10 years ago | (#8736425)

This is a LEGAL question. Go ask a lawyer.

If you don't have a lawyer, look for your local legal aid or lawyer referral service, or ask your county bar association.

Bar association? (1)

bromba (538300) | more than 10 years ago | (#8744488)

Ha! In my county we only have a pub association, you insensitive clod!!!

I know it's too early in the morning (1)

lightspawn (155347) | more than 10 years ago | (#8736836)

but I can't even begin to make sense of this.

I'll try reading it again at lunch.

You should talk to a lawyer (4, Informative)

aburnsio.com (213397) | more than 10 years ago | (#8736945)

According to a FindLaw primer on employee rights, you may have an action to sue your former employer for using your photograph without your permission. You should contact an employment lawyer in your area; you might be able to get a settlement from your former company to justly compensate you for your photo being used without permission.

Key questions you need to answer:

1) Did you sign a written consent form allowing the company to use your photograph?

2) Do you have the original photograph to use as evidence that you are in fact the one in the picture?

3) Do you have current contact information for the other employees in the photograph that have been similarly misused?

4) Do you know when the ads first appeared, how long they have been running, and in what medium (newspaper, TV, magazines, web, etc.)?

5) Do you have samples of the advertisment in question that could be used as evidence?

6) What jurisdiction applies? If the ad was shown in California you may have more protections for use of your photograph; Georgia only appears to have such restrictions for serious crimes like child pornography.

Your action does not concern "fraud", per se. Fraud, legally, is decieving others for gain. What you need to focus on is the state statues that require an employee to provide written consent before that employee's photograph can be used for marketing purposes.

For more details, see a general discussion on the issue from FindLaw [findlaw.com] :

Many states prohibit employers from using an employee's photograph for commercial purposes (such as in an advertisement or in a company brochure) without your written consent. Cases have been won by female employees who discovered their likeness on such materials but did not authorize their employers to use them.

For instance, see California Civil Code Section 3344-3346 [findlaw.com] . I'll quote a small portion of this section which directly applies to your situation:

3344. (a) Any person who knowingly uses another'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 services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.

The company is likely to argue that, because your head is not visible, you cannot be readily identified under 3344(b)(2):

(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

The company may also insist that your likeness is not "essential" to the advertisement, per 3344(c):

(c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee's photograph or likeness.

In a similar case, a Federal Appeals Court in California held [appellate-counsellor.com] that Dustin Hoffman's photo could be digitally altered without his permission. However, in that case the photograph was used for editorial purposes, not commercial purposes, and thus was protected by the First Amendment. Since your picture was used for commercial gain, this case would not apply. This is also a Federal decision and is not directly applicable to the state statute above.

Get a free consultation from a lawyer. If the lawyer doesn't want to take your case, contact the company directly; you may at least have them give you a thousand dollars, or maybe something less tangible like a free lunch with one of the corporate big-whigs pictured in the ad. It might land you a new job.

Re:You should talk to a lawyer (1)

popdookey (253795) | more than 10 years ago | (#8739536)

Fantastic information. Thanks. Your key questions point me in the right direction. My answers: 1. No 2. It's in the owner's office; his mom took the picture 3. Yes 4. Yes 5. Yes 6. Georgia and Alabama. I'll have to see if some of the same provisions exist in Georgia's civil code. Regarding your suggestion of contacting the company: I actually stopped by and visited one of the original founders at their Athens, GA corporate office. He apologized for doing it and gave me two t-shirts. Note: he had very nice knit shirts, but gave me the t-shirts.

Get over it, Jared. (3, Funny)

Lendrick (314723) | more than 10 years ago | (#8737087)

I just returned home to Georgia and discovered that my head had been replaced on a favorite photograph that was now being used to promote sandwiches.

The terms of your contract specifically state that we can use your likeness in any way we want, including photoshopping some other dude's head onto your body.

Thank you,
The Subway Legal Department

You asked /. ??? (1)

Doches (761288) | more than 10 years ago | (#8737195)

...and expected a real answer? All we give is sarcasm!

On that note, who's to say that he didn't improve the picture?

Not your face! (1)

eweiland (89563) | more than 10 years ago | (#8737286)

If your face can't be made out in a photo it can legally be used. It applies to you as the subject or you in a crowd. As long as your face is not displayed or distinguishable, it's okay to use as long as the photographer gave permission to use it even though you know it's your body. IANAL though so check with one.

Likenesses are protected (3, Interesting)

torinth (216077) | more than 10 years ago | (#8737349)

You are generally protected from your likeness being used for commercial promotion purposes. This is largely to protect you from unwillingly becoming the spokesperson for a Herpes treatment. However, if they chopped off your head, I bet you'll have a hard time saying that it's your likeness.

The fallback argument is that whoever took the original picture holds copyright, and the head-chopping promoters may not have secured rights properly. Track down the photographer and see if they knowingly released the photograph to these people.

Possible precedent (1)

AlecC (512609) | more than 10 years ago | (#8737402)

A possible related precedent. A few years ago, Ford Europe ran an ad campaign which featured some genuine employees from their UK plant. Later, they decided to repeat the same ad campaign in Poland. Rather than take a new photograph, they used the old one. But, since Poland has very few ethnic minority workers, they retouched all the black and Indian employees to white. The stink which blew up was massive, and they had to back down and apologise grovellingly. Which suggests that someone thinks that you have some control of how images of your body are used, at least in an advertising context. (And what a stupid false economy it was using the old photo: the cost of taking a new photo with Polish employees would have been trivial).

Re:Possible precedent (2, Informative)

Andy_R (114137) | more than 10 years ago | (#8737833)

"the cost of taking a new photo with Polish employees would have been trivial"

I'm guessing you have never hired a professional photographer?

I figure 3 days for the trip to Poland, 100+ shots of large-format film stock, add in airfare plus shipping costs for lighting and cameras, living expenses for photographer and assistant(s), disruption to plant while you pick out 50 employees and get them to pose, plus buy-out on the rights for the image(s) that you high-res scan and digitally comp together to get a final pic where everyone is smiling and no-one is blinking, and you'll be lucky to have change from $30,000.

Re:Possible precedent (1)

Mr. Slippery (47854) | more than 10 years ago | (#8744382)

and you'll be lucky to have change from $30,000.

To a company the size of Ford, that is trivial. Figure their profit on the sale of a new car is (to pick a number out of the air) $1000. If the offense they generated by cheaping out loses just thirty sales, worldwide, then they're behind what it would have cost to do it right.

My advice (4, Insightful)

hey! (33014) | more than 10 years ago | (#8737993)

Get a laugh out of it, then let it drop.

Otherwise you are going to have to get a lawyer, and consider what you could win (if anything) in a court of law. It's probably not going to be worth your while, the most likely thing is that they'll stop using that photo or photoshop in a completely different body. How does that benefit you? What will you get out of the whole affair other than wasting a few months of your precious time?

Personally, I think there are upsides to this. Suppose this chain becomes the next KFC, you'll have a funny story to tell out of the whole situation, which is probably more than you'll end up with by hiring a lawyer. Hell, I'd probably send them a letter mentionining I'd saw the photo and telling them it's Ok with me as long as they don't use my face.

For one thing think of the pickup lines, "I don't know about you, Ali's Felafel Pit really wanted my body."

Re:My advice (1)

popdookey (253795) | more than 10 years ago | (#8739865)

Very practical advice and insight. Living in Hawaii will make it hard to take legal action in Georgia.

It seems like such a dangerous precedent that I decided to bounce the issue off of the collective slashdot knowledgebase first. Reading the comments leads me to believe that I should have given my permission first.

It is not my intention to gain anything from this. It is my intention to learn what can be done, if anything, to keep it from happening to me or others again. The potential to revise/abuse photographic history is immense.

Oprah's nice legs ... (0)

Anonymous Coward | more than 10 years ago | (#8742851)

I'm not sure if this is an urban myth but I recall a furor, or was it a tempest in a teapot, over a picture of Oprah except that the photographer substituted Ann Margaret's legs. Can anyone tell me if that actually happened and what the result was?

Re:Oprah's nice legs ... (1)

unitron (5733) | more than 10 years ago | (#8744942)

It was a cover of TV Guide and they used the entire body, not just the legs, but she was sitting in the picture so it wasn't shockingly apparent that it wasn't Oprah on a day when she had been dieting and working out.

What was the result? (0)

Anonymous Coward | more than 9 years ago | (#8746147)

Do you know if anybody got sued?

Re:What was the result? (1)

unitron (5733) | more than 10 years ago | (#8757731)

As I recall it all blew over in a few days.

Got a nice printer? Get revenge! (1)

phorm (591458) | more than 9 years ago | (#8747668)

Take the headshot of the person in question, nab a picture of a weight-loss candidate in a bikini/speedo.

Cut/Paste, print with a good inkjet, and at night post the new picture on their window...
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