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Tuesday, May 3, 2016

Who Owns Your Online Image?

(FTM does, by the way). 
In Other Words
By Chuck Keller 

You may have seen this story that has been floating around online.

The story in a Detroit newspaper claimed that a woman had 14 children with 14 different men. It went on to claim that the Guinness Book of World Records verified the births. Outrageous, right? Did you just pass judgment? Sketchy morals, right?

The only problem is that it is all false. The photo was snagged from a random Facebook page of a mother, father, and their newborn and only child. And their lives have not been the same. They received nasty notes and were the subject of many blogs and discussion threads that vilified the young couple.  The couple reported that people treated them poorly because they were unfairly and prematurely judged. Their name has been tarnished.

I don’t know why the false article was written let alone published, but it had to make it past an editor. I hope. The original article reads like a parody from The Onion, but it wasn’t. That is life in the wild west of the Internet, right?

Unfortunately, this episode reveals just how little of our lives that we control when we post something on social media.

We expect people to be polite and reasonable. It’s like driving. We trust that the drivers in the oncoming lane stay in their lanes. Things happen but by and large people behave.  Photos, comments, stories can be snatched and used for whatever purpose. But why would someone write such an outlandish piece? Why would an audience be so ready to believe? Why didn’t the publishing system catch the problem? Can the writer ever be caught and punished? What does that say about the ethics of that business? Or the person? Can you imagine how a prospective employer will react to finding that story as she does an Internet background search?

So who owns your image? Good question.

My wife’s image is part of a campaign for Hoxworth Blood Center. She gave her permission. She was part of a professional campaign done with professional photographers following professional guidelines and they asked legal permission.  We get calls and notes of where people see her - on billboards, magazines, busses, posters, mobile blood bank trucks, and blood bank events. I admit, it’s fun to see her around town. But here’s the difference, she gave her permission and they have used it responsibly. They are a wonderful organization and we cannot praise them enough.

I recently discovered that an image of my wife and me was used in print promotional material for a different area non-profit. The problem is that we never gave our permission. We would have given it if they had asked, but they didn’t. And that bothers me. It bothers me a lot. And it raises lots of questions.

If your image is online, do you own it? Can anyone snag it to use? What are the repercussions? What kind of damage could be done to a person’s name?

So who owns your image?

Attorney, Ashley Meier Barlow is working on such a case. In this particular case she says that “Kentucky and the many other states have laws that protect the use of someone’s likeness for commercial use.  The laws protect a person’s right to publicity, which essentially protect a person’s right to make money from their own identity, and they therefore prohibit other companies and people from using a person’s identity in advertising and promotional items.  Some states, Kentucky not necessarily included, also protect people from the misappropriation, or theft, of their identity, but in most states the use of the identity has to also involve commercial use…. The laws are gray” as they sometimes are. So as long as an entity does not make money on it, they can use a person’s image.

And to muddle things up a bit, a judge ruled in a 2013 case (Agence France-Presse (AFP) v. Morel) that media cannot use photos from social media (in this particular case, it was Twitter) without permission or giving proper acknowledgment. The court said that just because a photo has been shared online does not mean that it is in the public domain. Just because a business can find an image on a social media platform does not mean that they have the right to use that image. And a new twist is added since everyone has a camera/phone and Internet access.

There there is the story of the $7,500 green pepper.

One blogger snagged an image of a green pepper from online to add to her blog post. She later received a cease and desist letter from the owner of the image and then later was charged $7,500 for using the image without permission. The owner of the image plants images online and waits for someone to right click his image. Then he serves the legal papers. It’s a scam, for sure, but that is an expensive lesson.

So who owns your image?

Fort Thomas native and professional national spokesperson, tv host, actress and model, Amy Simon, is quite sensitive to how a person’s image is presented. She recalls “I was on a shoot in Key West and saw [an image of] my friend on the flyers all over the tables in the place we were shooting.” She remarked, “That's my friend!” The owner, who snagged the photo, “looked shocked that I knew her. He literally took a pic of her without her knowledge and then used it for [his] marketing purposes. But.... She didn't care. I texted her to let her know and she was totally fine with it. Now, this is my living so I am going to get paid for my image.” 

“I have seen my photos on things I didn't get paid for and let my agent(s) know. It could have just been an oversight by the client or agent and that happens. (My agents will look into it and most of the time I will get compensated.) I was on a billboard in the keys. Didn't know it.”

When she saw it she said, "That looks like me. Oh... It is!” 

She explains that “We have a release we sign for ‘usage' it could be one year or up to five. It's supposed to protect us. Usually it does. Sometimes we have to look out for ourselves. I did do a  Bahamas job that ended up on a billboard. I signed off on the usage. I just didn’t know it would be on a billboard but when you sign off on usage it can end up anywhere! I have to admit it was fun seeing that billboard and I am very grateful for the jobs I have had over the years and the great agents and people I have worked with.” 

So even the professionals have to be diligent in protecting their image.

I won’t pretend to understand everything happening in the digital world, but I do have a sense of what is right and wrong. Some experts claim that we now must present ourselves as a brand. Reputation is our brand. Our knowledge is our brand. Our image is our brand. We have become products in the marketplace.  I get that. But I think my word, my reputation, my character is more important than being a brand to be bought and sold. I am not a commodity. If we wish to be considered a high quality “product” (or even better, a high quality person) then we must be vigilant of how we present ourselves and how our image is used.

Chuck Keller is a columnist for Fort Thomas Matters. 

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