Rumours of my demise have been greatly exaggerated (my airplane is now a go-to image for crash articles)

172andyou said:
I am not presuming that. No.
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If I were to take a picture of you as you walked down a public thoroughfare, would you contend that you have no right to limit my commercial use of the image because I myself took it?
 
DJTorrente said:
If I were to take a picture of you as you walked down a public thoroughfare, would you contend that you have no right to limit my commercial use of the image because I myself took it?
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The examples I see in this thread are editorial, the legal use of which differs from commercial.
 
Baked Potato said:
The examples I see in this thread are editorial, the legal use of which differs from commercial.
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I disagree. The first use of the image was editorial. Thereafter, the image was licensed by AP -- for a fee -- to unrelated arms-length third parties, who then used the image for their own unrelated purposes.

Taking just the most recent example, the picture is not used to illustrate a story describing Katmarino departing on his round-the-world journey. Instead, it is used in juxtaposition to a Spanish language story about a plane crash in Oregon, killing three people. The picture is not the accident aircraft. The story is about a Cessna 421; the image is a Cessna 172 (I don't think I need to detail the differences to this audience). The picture was taken years before the accident, at an airport having nothing to do with the accident. The story describes three people who died; the aircraft in the image had only one occupant, who was not one of the three. There is nothing about the image that illustrates the events described at any level beyond the most remote abstraction.
 
DJTorrente said:
I disagree. The first use of the image was editorial. Thereafter, the image was licensed by AP -- for a fee -- to unrelated arms-length third parties, who then used the image for their own unrelated purposes.

Taking just the most recent example, the picture is not used to illustrate a story describing Katmarino departing on his round-the-world journey. Instead, it is used in juxtaposition to a Spanish language story about a plane crash in Oregon, killing three people. The picture is not the accident aircraft. The story is about a Cessna 421; the image is a Cessna 172 (I don't think I need to detail the differences to this audience). The picture was taken years before the accident, at an airport having nothing to do with the accident. The story describes three people who died; the aircraft in the image had only one occupant, who was not one of the three. There is nothing about the image that illustrates the events described at any level beyond the most remote abstraction.
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Just because they are licensed does not mean that they are not being used for editorial purposes. All of the examples I see are editorial and would not be classified as commercial use. The distinction between the two is not determined by who the original owner is.
 
Baked Potato said:
Just because they are licensed does not mean that they are not being used for editorial purposes. All of the examples I see are editorial and would not be classified as commercial use. The distinction between the two is not determined by who the original owner is.
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Fine. Against all the reasons I listed that the image use is NOT editorial in nature, what makes you believe that it is?
 
Salty said:
In general, there is no expectation to privacy when your property is in a public space. It's one of those inconvenient downsides to the first amendment, but I'd rather deal with the downside than give up the first amendment.
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Expectation of privacy is a fourth amendment consideration; not a first amendment consideration.

If I took your picture in a public place, then used that image to sell millions of dollars of my product, and didn't compensate you for it, I think you'd be upset.
 
DJTorrente said:
Fine. Against all the reasons I listed that the image use is NOT editorial in nature, what makes you believe that it is?
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3.2 Editorial Use.
AP is a not-for-profit news cooperative in the business of gathering and distributing news content. Accordingly, the substantial majority of Content licensed by AP via the Site is solely for Editorial Use. “Editorial Use” means " the use of Content for editorial purposes in connection with reporting on persons, places, matters, topics or events that are newsworthy or of general public interest. For avoidance of doubt, any use that is a Commercial Use (as defined in Section 3.4.c) will not constitute an Editorial Use. Unless additional usage is expressly authorized in Your Content License, Your Content License authorizes You to use the Content solely for Editorial Use.

From:

AP

newsroom.ap.org newsroom.ap.org
 
DJTorrente said:
Expectation of privacy is a fourth amendment consideration; not a first amendment consideration.

If I took your picture in a public place, then used that image to sell millions of dollars of my product, and didn't compensate you for it, I think you'd be upset.
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whoosh. taking a picture of your property when it is in public is a first amendment consideration.
 
Baked Potato said:
3.2 Editorial Use.
AP is a not-for-profit news cooperative in the business of gathering and distributing news content. Accordingly, the substantial majority of Content licensed by AP via the Site is solely for Editorial Use. “Editorial Use” means " the use of Content for editorial purposes in connection with reporting on persons, places, matters, topics or events that are newsworthy or of general public interest. For avoidance of doubt, any use that is a Commercial Use (as defined in Section 3.4.c) will not constitute an Editorial Use. Unless additional usage is expressly authorized in Your Content License, Your Content License authorizes You to use the Content solely for Editorial Use.

From:

AP

newsroom.ap.org newsroom.ap.org
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Do you mean to tell me that the AP thinks they haven't done anything wrong and don't owe their subjects compensation? I suppose that settles it, then. :rolleyes:

That text is from the AP's license to its customers. It is not law or regulation.

Besides, just because the AP (or you) choose to call the use "editorial" doesn't make it so. Even at that, in what way does a picture of Katmarino's aircraft "report[] on persons, places, matters, topics or events that are newsworthy or of general public interest"? The people, place, matter, topic and events described in the story have nothing to do with Katmarino or his aircraft. I think you just made my case for me.
 
DJTorrente said:
Do you mean to tell me that the AP thinks they haven't done anything wrong and don't owe their subjects compensation? I suppose that settles it, then. :rolleyes:

That text is from the AP's license to its customers. It is not law or regulation.

Besides, just because the AP (or you) choose to call the use "editorial" doesn't make it so. Even at that, in what way does a picture of Katmarino's aircraft "report[] on persons, places, matters, topics or events that are newsworthy or of general public interest"? The people, place, matter, topic and events described in the story have nothing to do with Katmarino or his aircraft. I think you just made my case for me.
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Accuracy is a different issue and is not the determinate factor over whether or not something is classified as editorial or whether it is commercial.
 
DJTorrente said:
That text is from the AP's license to its customers. It is not law or regulation.

Besides, just because the AP (or you) choose to call the use "editorial" doesn't make it so. Even at that, in what way does a picture of Katmarino's aircraft "report[] on persons, places, matters, topics or events that are newsworthy or of general public interest"? The people, place, matter, topic and events described in the story have nothing to do with Katmarino or his aircraft. I think you just made my case for me.
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So your theory is that the AP, which has operated for 178 years, has been outside the law all this time and it's just a matter of someone suing them for royalties for a photo of their airplane to get their attention?

I suppose that's one way to read the situation.

Another is that photos in public have been protected for almost as long as there have been photos and that commercial use really only starts to be limited by doing things like implying an endorsement of a product by putting someones image next to it. And, even then, the photo isn't the issue, the endorsement is.

Taking photos in public and selling the photos is very broadly protected. Hell, if it was a simple as you seem to think it is, the entire paparazzi industry would collapse in a heartbeat.
 
Salty said:
whoosh. taking a picture of your property when it is in public is a first amendment consideration.
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Well, video game makers should make you CEO. They're clearly squandering hundreds of millions of dollars in license fees in order to acquire the right to use images of sports players to sell their video games. The fathead market alone would be huge.
 
DJTorrente said:
Well, video game makers should make you CEO. They're clearly squandering hundreds of millions of dollars in license fees in order to acquire the right to use images of sports players to sell their video games. The fathead market alone would be huge.
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and again I say "whoosh"
 
DJTorrente said:
Well, video game makers should make you CEO. They're clearly squandering hundreds of millions of dollars in license fees in order to acquire the right to use images of sports players to sell their video games. The fathead market alone would be huge.
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Now this would be commercial use.
 
172andyou said:
So your theory is that the AP, which has operated for 178 years, has been outside the law all this time and it's just a matter of someone suing them for royalties for a photo of their airplane to get their attention?

I suppose that's one way to read the situation.

Another is that photos in public have been protected for almost as long as there have been photos and that commercial use really only starts to be limited by doing things like implying an endorsement of a product by putting someones image next to it. Taking photos in public and selling the photos is very broadly protected. Hell, if it was a simple as you seem to think it is, the entire paparazzi industry would collapse in a heartbeat.
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The paparazzi industry is reporting on the facts of the matter that occured -- "Paris Hilton appeared at this club last night wearing this dress, and here's a picture!" Or "Here's a picture of Paris Hilton out clubbing last week". That's what makes them editorial.

By contrast, none of the stories after the first one where it was taken get any closer to "N9953H" than "Aircraft".
 
DJTorrente said:
The paparazzi industry is reporting on the facts of the matter that occured -- "Paris Hilton appeared at this club last night wearing this dress, and here's a picture!" Or "Here's a picture of Paris Hilton out clubbing last week". That's what makes them editorial.

By contrast, none of the stories after the first one where it was taken get any closer to "N9953H" than "Aircraft".
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You win! Call the AP! It's time to shut the joint down. Well, it's been a good run...
 
Technically, he could probably sue for the erroneous usages, but how would he show any damages?
 
Baked Potato said:
Well, sure. Because I said so, but also federal court rulings.
cdas.com

Marshall Thompson v. Getty Images: Determining a “Commercial Purpose” | Cowan, DeBaets, Abrahams & Sheppard LLP

A boutique firm dedicatedto media, entertainment, and the arts
cdas.com cdas.com
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A District Court in Ill. dismissed as to Getty, based on the particular text of the Illinois statute. The court declined to decide whether the downstream use was or was not a commercial or editorial use. It also refused to transfer any such liability of from the downstream user to Getty.

In Nolan v. Getty, 2014 N.Y. Slip Op. 30564 (N.Y. Sup. Ct. 2014), the trial court refused to dismiss the case against Getty, who cited Thompson. Different state, different statute, different outcome. Neither answered the final issue we are arguing over.
In this case; whether Nolan is a model, whether in fact a written release was signed by Nolan, whether Civil Rights Law §§ 50 and 51 required Getty to investigate the existence of a release signed by Nolan, whether the First Amendment protects Getty's exploitation of Nolan's image without Nolan's written permission, whether Getty's conduct qualifies as use of the image for either advertising or trade purposes, and whether Getty is able by agreement to shift to the end-user and the photographer the burden of obtaining Nolan's written consent, all must await further development of the facts, either by way of summary judgment or trial.
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DJTorrente said:
A District Court in Ill. dismissed as to Getty, based on the particular text of the Illinois statute. The court declined to decide whether the downstream use was or was not a commercial or editorial use. It also refused to transfer any such liability of from the downstream user to Getty.

In Nolan v. Getty, 2014 N.Y. Slip Op. 30564 (N.Y. Sup. Ct. 2014), the trial court refused to dismiss the case against Getty, who cited Marshall. Different state, different statute, different outcome. Neither answered the final issue we are arguing over.
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The case you cite concerns the image being used for an advertisement, which illustrates the difference I'm trying to explain.
 
Salty said:
Technically, he could probably sue for the erroneous usages, but how would he show any damages?
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A reasonable question. Does this mean you're retracting one or both "woosh"? ;)
 
FWIW: Per federal law, there is no expectation of privacy in any public location. So anyone can take any photo they want in that scenario. However, when it comes to a person's "right of publicity" or the right to control their likeness used by others, it is covered only at the State level and not the federal level. So in the OP example, he would need to check the "right of publicity" laws in the state that picture was taken, determine the amount of damages he incurred (key part), then find the photographer and file a civil suit against him for those damaged provided there were no time limits involved. And unless the damages are excessive, doubtful attorney would take it on. Been there.
 
Salty said:
none
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Somehow your assessment of my position went from Rule 11 violation and disbarment hearings to 'He's got a point, but a tough case on damages', but you didn't move an inch?
 
DJTorrente said:
Somehow your assessment of my position went from Rule 11 violation and disbarment hearings to 'He's got a point, but a tough case on damages', but you didn't move an inch?
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The point is that without damages there are, uh, no damages.
 
Regardless of legal leverage, a polite email to the publication explaining that the picture they used caused your associates to reach and ensure you were still alive might result in a different picture being used. You could also mention that many other publications have used the same picture of the same aircraft for stories of fatalities before, and that it's a nuisance.

They may do nothing, but I doubt it would hurt to ask.
 
2-Bit Speed said:
Regardless of legal leverage, a polite email to the publication explaining that the picture they used caused your associates to reach and ensure you were still alive might result in a different picture being used. You could also mention that many other publications have used the same picture of the same aircraft for stories of fatalities before, and that it's a nuisance.

They may do nothing, but I doubt it would hurt to ask.
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It might help. It might be even more likely to help if you added a note for a fictitious courtesy copy at the bottom of the letter, something like:
cc: Legal Associates of Wallawalla, Inc.​
 
Sorry that you died brother. But at least you got bet-uh. Could have worse, could have been turned into a newt.
 
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