|This should be one we all need to follow|
Dating sites sued over a photo
The outcome of this case is one we all need to follow as how this plays out has some serious issues with our company moving forward with a new project.
There are several ramifications to this.
Most important, using an image of a person, living or deceased, without permission is simply wrong. That aside...
The company could try to claim plausible deniability citing it was a third party ad over which they had no control.
But this brings up the issue of a site owner being responsible for the site's content. The owner elected to use these ads, third party or not, so where does their liability begin. Does this mean you will be held responsible for any ad which you contract such as AdWords, which someone is offended by or contains unauthorized images?
So this leads to indemnification. Should you enter into an advertising contract where the advertiser does not indemnify you against damages resulting from their ad? Of course, there are damages beyond the material. How would the publicity affect your site and reputation?
Bottom line: This is just one more example of a risk any site takes when they allow third party content on their site. If the outcome is negative, then it may put a crimp in third party advertising and content usage.
Right now, I do believe that potentially showing bad ads could be a risk.
In the end, though, I do not believe that web-sites will be held immediately responsible for random ads, but will be found to fall under the DMCA safe harbor, if they are ads randomly pushed. (See [chillingeffects.org...] :
|Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable. |
Similar to the safe harbor for web-sites, hosting providers, and ISPs, for ads that are randomly pushed to a web-site, I think sites can claim to be deemed a "service provider", and get the initial free option of taking action to simply seize and desist. As in filtering out those ads from appearing. The infringement claim then goes against the entity that created the ads, where it really belongs.
Singular ads, where you have a direct agreement with a third-party to show very specific, known-up-front ad content, I think more due diligence is needed to make sure there is no violating content.
It is a fine line.. Sort of similar to the difference between sites that allow random user content to be uploaded, which might be in violation, and sites such as Pinterest, which more than just allowing random content directly provide the tools for its users to "steal" content and images from web-sites. Which surely mean that they know there is a very high likelihood of being a violation.
One of the reasons I do not believe that Pinterest in its current form will survive for long. Suits from companies such as Petty Images and others will stop their practices.
Notice, BTW, that in this case the ad producer can very likely be seen as getting off free.
Long before we started having discussions about digital photo copyright, professional photographers have always had certain rules to follow. It is part of the basic training of any photographer, that unless it is a random photo part of a news report, the photographer always need a signed "model release" form. To be kept on file as the image is sold.
A news-reporter gets a pass from photographing people in a protest march for example if part of the reporting, but often can be sued, if the non-released photo suddenly is sold to a stock-photo site or an advertising agency. The person's "right to their own image".
What the story does not tell us is where the photo came from. The soldier obviously posed for a nice photo, and as such was a sort of willing participant. The question for the source (stock-photo, ad-company, photographer) to answer was the context. Did he merely pose for a visiting photographer doing a news-story about for example the Afghan war, or did he in fact sign a model-release (maybe without thinking about what his image might really be used for, and maybe as his whole team signed forms en-masse without thinking).
Also into play is maybe an issue of whether this soldier was photographed as part of his normal "paid-for-by-taxes, public job". Potentially putting the image into the public domain. (I do not know.)
That is the bottom-line of whether this is a case of infringement. Does the original photographer have the required model-release or other type of legal release. There is not much likelihood that the soldier's now suing parents would have enough knowledge of what went on in Afghanistan until the court case shows it.
The secondary issue then becomes whether a potential infringement passes all the way from the selling photographer, through stock-photo site, though ad-creators, to all involved web-sites. :)