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Culture

by Mike Masnick

Wed, Oct 6th 2010 9:36am




Filed Under:
album covers, bruce mccandless, dido, publicity rights


Astronaut Sues Dido For Using His Photo In Album Cover

from the ah,-publicity-rights dept

Ben alerts us to the news that astronaut Bruce McCandless is suing the musician Dido for her album cover on her 2008 album, "Safe Trip Home," which uses a NASA photo of McCandless in space:
Now, it's notable that McCandless is not claiming copyright over the image -- which is good, because he almost certainly doesn't own the copyright. Either the photographer who shot the image does or (more likely) the photo is owned by NASA which should make it public domain (though, potentially not). It appears that instead, McCandless is claiming a violation of his publicity rights, which we've noted has become all too popular a legal strategy these days. It's quickly getting up there in popularity as a "new form" of intellectual property -- and one that is perhaps even more questionable than patents and copyrights.

If this really is a publicity rights claim (and, if anyone has the actual filing, I'd love to see it, and post it here see update below), it's difficult to see how much of a claim he has. It's not as if he's identifiable in the image, or that anyone will see it and think: "Hey, I'll buy this album because I know astronaut Bruce McCandless endorsed it." That's ridiculous. Most people will have no idea who the astronaut is, nor will they even care. This seems like yet another blatant money grab, made possible due to the ever increasing (and dangerous) belief that we own "rights" to imaginary concepts.

Update: Thanks to all of you for sending me the filing. It's posted below, and it's pretty much what you'd expect. Standard publicity rights claim:

68 Comments | Leave a Comment

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  •  
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    Thomas (profile), Oct 6th, 2010 @ 8:38am

    One small lawsuit for man,

    One giant leap backward for mankind.

     

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  •  
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    Christopher Gizzi (profile), Oct 6th, 2010 @ 8:53am

    More Importantly...

    Dido released an album in 2008? I thought she faded into obscurity.

    Oh...

     

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    Ben (profile), Oct 6th, 2010 @ 9:05am

    McCandless is identifiable in the photo in that he is the only astronaut to have free floated, untethered to any spacecraft, but it's a stretch to assume this is common knowledge...

     

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    •  
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      Chronno S. Trigger (profile), Oct 6th, 2010 @ 9:48am

      Re:

      That's never happened before? But pictures like that are so common, I thought it was just something NASA did.

       

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        identicon
        Jon B., Oct 6th, 2010 @ 10:12am

        Re: Re:

        That's a pretty famous iconic image. If you don't know who's in the image, it's easy to figure out.

         

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          MrWilson, Oct 6th, 2010 @ 10:17am

          Re: Re: Re:

          Just because you've seen it before doesn't make it famous. Just because I've not seen it before doesn't make it obscure. Do you have some study that shows how many people have seen the picture and would remember seeing the picture to be able to claim that it's famous?

           

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          Chronno S. Trigger (profile), Oct 6th, 2010 @ 12:01pm

          Re: Re: Re:

          Your comment made me curious as to how hard it would actually be to find this information if I didn't already know. You know what I came up with? The damn image is a stock image. Novastock owns it. Bruce McCandless has even less of a claim over this.

          I also learned that he is flying an Untethered Manned Maneuvering Unit (UMMU) first used in 1984. Unless this guy is also him. I can't tell, the radiation shield makes it hard to see a face.

           

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            Mudlock, Oct 6th, 2010 @ 12:09pm

            Re: Re: Re: Re:

            From the text directly below the image on stock image:

            "If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person."

             

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              Chronno S. Trigger (profile), Oct 6th, 2010 @ 12:23pm

              Re: Re: Re: Re: Re:

              That's part of my point. It's not a person in the picture, it's a suit floating in space. The UMMU has been used by others, so are we absolutely sure that's him there? As others have pointed out, there are no distinguishing marks nor is there that camera he claimed to have.

              It's like freaking out that Muhammad is in a bear suit and it turns out to be Santa.

               

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            Mike Masnick (profile), Oct 6th, 2010 @ 4:59pm

            Re: Re: Re: Re:

            Your comment made me curious as to how hard it would actually be to find this information if I didn't already know. You know what I came up with? The damn image is a stock image. Novastock owns it. Bruce McCandless has even less of a claim over this.

            I believe it's a NASA image, which should mean it's public domain. Novastock, or any stock repository, should not be able to claim ownership on it, even if they can probably sell it.

             

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      R. Miles (profile), Oct 6th, 2010 @ 10:35am

      Re:

      Liar. That was Tommy Lee Jones in that movie about that one astronaut's life.

      What was that movie called again?

      Oh yeah! Space Cowboys. It also starred John Wayne, Jim Rockford, and that guy who is on the internet, screaming... what's his face.

      I couldn't resist this opening.

       

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      identicon
      Anonymous Coward, Oct 6th, 2010 @ 11:45am

      Re:

      Its stretched from earth's surface to high altitude orbit.

       

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      matt, Oct 6th, 2010 @ 9:06pm

      Re: Ben

      I think he was the first, but not the only, free float.

       

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        Anonymous Coward, Nov 14th, 2010 @ 4:09pm

        Re: Re: Ben

        but he was the only one to ever free float that far from the shuttle... and this was the only time photos were allowed to be taken too.

         

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      Anonymous Coward, Oct 6th, 2010 @ 9:46pm

      Re:

      Crazy. I guess there's no way that image could have been any other astronaut with the tether and/or space station photoshopped out...

      Nuts.

       

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      Pat, Oct 7th, 2010 @ 6:49am

      Re:

      Wrong, he was only the first to do that in the MMU. There have been others.

       

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    Travis, Oct 6th, 2010 @ 10:00am

    ROFLMAO

    Are you serious? That photo could have been photoshopped for all anyone knows. There's no obviously identifiable evidence that that IS Mccandless to begin with. This could SO be laughed out of a court room. America seriously needs to clean up it's court room.

     

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      Anonymous Coward, Oct 6th, 2010 @ 11:43pm

      Re: ROFLMAO

      More than that, it's an astronaut suit that's in the photo. They all look the same regardless of who is in it. In fact, I'm sure that McDipshit can't even prove that it's her in the photo and not another astronaut without detailed information from whoever shot the photo.

      It would be like me suing someone for using a picture of my house when all they used was picture of a completely unidentifiable brick wall.

       

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        Jimm, Oct 8th, 2010 @ 2:02pm

        Re: Re: ROFLMAO

        you are forgetting that it has been established that a photographer onboard the shuttle took the picture of *him*. it's the only one like that, so it's easy to establish that it is a photo of him, regardless whether you can see the face or not. he was the only one wearing *that* suit and *that* time in *that* situation.

         

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    Danny, Oct 6th, 2010 @ 10:10am

    Whe's Danny?

    See that blue planet in the background? I am there, I am just very very small. Think I can get some publicity rights compensation out of this too?

     

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    Anonymous Coward, Oct 6th, 2010 @ 10:31am

    Actual Compliant

    http://reporter.blogs.com/files/cacd-031010991534.pdf

     

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    Christopher (profile), Oct 6th, 2010 @ 10:52am

    Public figure.

    He's a public employee on a government mission. He needs to understand that the public funded his little trip, and STFU.

    -C

     

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    Shadow Six (profile), Oct 6th, 2010 @ 10:58am

    Jurisdiction?

    Hmm I thought that, as in most cases, where the photo was taken has Jurisdiction? As in, if you photo some celeb in Fla. they have no case in California.

    I think I remember reading that...

     

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      Anonymous Coward, Oct 6th, 2010 @ 9:24pm

      Re: Jurisdiction?

      I'd imagine that in a case like this jurisdiction would be where the album (using the photo) was printed. Or else you could do something like wait for George Clooney to be filming in France, snap a picture of him, and then use in your ads in the US.

       

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      Anonymous Coward, Oct 6th, 2010 @ 9:25pm

      Re: Jurisdiction?

      I'd imagine that in a case like this jurisdiction would be where the album (using the photo) was printed. Or else you could do something like wait for George Clooney to be filming in France, snap a picture of him, and then use in your ads in the US.

       

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    FormerAC (profile), Oct 6th, 2010 @ 10:58am

    I knew astronuts tended to be arrogant pricks, but really?

    "acted in concert with the other defendants with a design, and for the purpose, or injuring Plaintiff and unlawfully benefiting some or all Defendants"

    So they sat down and had a meeting and decided to intentionally screw him over?

    "36. Recognizing the tremendous value of McCandless' persona, Defendants have sought to link their business and products to him and thereby reap the benefits, for themselves, of the public's good will toward McCandless."

    This gave me a good laugh. Sure, they decided to use that picture because of the public's good will toward him. Get over yourself you arrogant little shit.

     

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      FormerAC (profile), Oct 6th, 2010 @ 11:06am

      Re:

      ON another note, I just downloaded a 640x480 jpg of the album cover (wait, do I owe him money for that?. At 640x480, the image on my 22" monitor is larger than the actual CD cover and McCandless himself is less than 1/2" tall. I am not able to make out patches, name plates, or any distinguishing marks, not even the camera he says is around his shoulder.

      I enlarged it 400% and was still unable to make out anything that would identify him. Beyond that size the image becomes to pix-elated that it becomes impossible to tell what color the suit is, let alone who is in it.

       

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      jc (profile), Oct 6th, 2010 @ 1:33pm

      Re:

      "Recognizing the tremendous value of McCandless' persona"

      I have no idea who the hell this astronaut is ... but at least now I know he has a HUGE ego.

       

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      Phil, Oct 6th, 2010 @ 6:14pm

      Re:

      blah, blah...acted in concert.... injuring Plaintiff.... unlawfully benefiting...public's good will...blah, blah, blah


       

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      Phil, Oct 6th, 2010 @ 6:17pm

      Re:

      Almost certainly, the "Plaintiff" never said any of the words in this complaint. This suit very likely never would have happened without a lawyer telling him "You know... You stand to make some money since they never asked your permission to use your picture." The lawyer took it all from there, and the words in that complaint are lawyers words, designed to satisfy the lawyer's objectives.

      Why can't people who are bright and talented find something more productive to do with themselves?

       

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    identicon
    Joe, Oct 6th, 2010 @ 11:40am

    Publicity for Dido!

    Well, at least he's giving her some publicity. I'm going over to Amazon right now to listen to the samples from this album.

     

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    wallow-T, Oct 6th, 2010 @ 12:14pm

    The issue has come up before in the context of postage stamps. The rule is that no living person is to be depicted on a USA postage stamp. However, there have been pictures of suited astronauts on stamps honoring the first American spacewalk, the first steps on the moon, etc. etc. The argument at the time was that it was the achievement which was being honored by the stamp, not the individual astronaut -- whose likeness was invisible inside the uniform of the space suit and helmet.

     

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    TweetDeckTV (profile), Oct 6th, 2010 @ 12:15pm

    Dildo

    Bruce... You have just succeeded in giving Dido a lot of free press. Nasa states: If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person. Nice job, Bruce...have a cigar. http://twitpic.com/2v6yex/full

     

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      Mike Masnick (profile), Oct 6th, 2010 @ 2:21pm

      Re: Dildo

      Nasa states: If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person.

      Note the *may* infringe. It is not necessarily the case, and I think Dido et al have a pretty strong case in response.

       

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    Dave92f1 (profile), Oct 6th, 2010 @ 12:49pm

    It's a picture of US government property

    It's a photo of a NASA-owned spacesuit. Anybody could be in there. Or nobody.

     

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    Toby, Oct 6th, 2010 @ 7:24pm

    overlawyered.com

    at least now I know he has a HUGE ego.

    ...and is apparently having trouble making rent.

    Almost certainly, the "Plaintiff" never said any of the words in this complaint

    But he signed off on it. He's responsible for it.

     

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    Anonymouse, Oct 6th, 2010 @ 7:51pm

    photo

    Maybe they should just put the little black bar over his eyes so you can't recognize him! :-)

     

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    Hugo Rabson, Oct 6th, 2010 @ 8:07pm

    Wikipedia

    The document cites Wikipedia (#41). 'Nuff said.

     

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    identicon
    Ed H., Oct 6th, 2010 @ 8:30pm

    "If a recognizable person appears..."

    To quote NASA's Copyright Notification page:
    If a recognizable person appears in a photograph, use for commercial purposes may infringe a right of privacy or publicity and permission should be obtained from the recognizable person.

    I would argue that an astronaut in a space suit with a mirrored visor is *COMPLETELY* unrecognizable. There is no possible way that anyone could prove that the person inside that suit is the astronaut in question.


    Here is NASA's page for the photo in question:

    http://grin.hq.nasa.gov/ABSTRACTS/GPN-2000-001087.html


    Here is a MUCH higher resolution photo of (supposedly) the same astronaut in an MMU, taken a day earlier:

    http://grin.hq.nasa.gov/ABSTRACTS/GPN-2000-001156.html

    Even on that one, it is impossible to identify the astronaut, as the visor is completely mirrored, and space suits do not have visible name tags on them. (This second one is probably the most famous "astronaut floating free in space" photograph ever; and has been used commercially *MANY* times.)


    Hell, I bet the plaintiff didn't even know it was a picture of him for a long time.

     

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      Kailyn, Jul 9th, 2012 @ 9:13am

      Re: "If a recognizable person appears..."

      The pictures are different. If you look at the placement of the feet and slant of the body to the official NASA photo. They are not the same! Is there even a body in there?

       

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    Jamie, Oct 6th, 2010 @ 10:07pm

    read fifth claim

    Yes, I don't think he should be entitled to anything either, but if anyone bothered to read the whole complaint, they'd see that the "Fifth Claim for Relief" states that the album producers actually did agree to pay him some money for his image/permission. He states then that they reneged on the contract. I'd say this is more about a broken contract than an outright money grab.

     

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    Eric James, Oct 6th, 2010 @ 10:42pm

    He has no rights

    The photo in question was taken using American Taxpayer dollars while working in the employee of US Government. Any pictures taken during his employee belong to the American Taxpayers and he obviously had no expectation of privacy during the misson. If any photo's exist of him taking a dump a freedom of information request would make anyone able to use those pictures. Period!!! Give me a break.

     

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    relliker, Oct 7th, 2010 @ 12:16am

    Can't claim.

    He was photographed in a "public place". He can't claim any violation unless he owns the property (i.e. the vacuum).

     

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    Stiggle, Oct 7th, 2010 @ 3:09am

    What rights?

    NASA's own copyright notification states:
    "It is unlawful to falsely claim copyright or other rights in NASA material. "

    So McCandless is unable to able to claim 'other rights' on NASA's picture.

     

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    M4rr0s, Oct 7th, 2010 @ 3:58am

    I think the only way they would have a case is if they could somehow prove that McCandless is identifiable in the picture. Which I'm sure will be the angle the lawyers will take.
    Nasa states: If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person
    It sounds like McCandless is quite a narcissistic person. He seems to think he is very important and known - when in fact I think its a small minority of people that could identify him in the picture. Couldn't I cut him out and photoshop a different tiny astronaut in? I think thats why they made the over the shoulder camera comment. Just a very odd case, with no clear objective other than case. Write this one off to greed?

     

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    sulfide, Oct 7th, 2010 @ 5:24am

    Now we know he's a true american

    Legal action against anyone and everyone for any reason what so ever, even if it's completely stupid! You go man! Or how about you go get a life :(

     

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    identicon
    Taylor, Oct 7th, 2010 @ 6:37am

    Getty's License is Clear - No CD's or DVD's

    Well - I did go to Getty Images and the license for this image states it can't be used on CD's DVD' Video, Etc. and should only be used for Editorial use. http://www.gettyimages.com/Price/PriceRMPopup.aspx?ImageIDs=3240511&CartIDs=&Source= adp&BrandIDs=526&IsPriced=0 I guess Sony marketing should have looked into that. Not Dido's responsibility or Getty Images.

     

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    Roger Fierry, Oct 7th, 2010 @ 7:20am

    actually you can not...

    ...just take a picture, and do what ever you want. Dido and her producer are making money with that album cover. How can anybody claim the photo owner, NASA, or the astronaut has no right to it? I now exactly who is he, from the other hand I dont give to much attention who is Dido. Will you be happy is somebody will take her music and do whatever claiming "it shall be public" ?!

     

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    William Harrison, Oct 7th, 2010 @ 9:58am

    Lol

    Alex, I'll take washed up nobodys for $500.

    Grats Dido on the bump in album sales

     

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    darryl, Oct 7th, 2010 @ 10:04am

    So its ok to rip someone else off as long as its another American !

    Someone should write a blockbuster movie, that will be very popular and makes millions of dollars, then they should use Dido's music for all their sound tracks, and make lots of profit from her work. But make sure they dont pay, or acknowledge her efforts.

    After all, its so much easier to steal something you want than to do it yourself.

    And if you guys honestly believe that because its government funded the results of that funding are public owned or belong in the public domain.

    You think the technology the US governemt developes with your tax money is being made freely available to anyone ?

    NO ofcourse not..

    What if this Dido person was not from the US, would it be bad then that US tax payers are paying for someone else who did not pay tax in your country to benifit from something that cost you collectively quite a bit of money ?

    Oh, but its another American, so its ok to screw over your countrymen, because you all get screwed.

    Once again, this is just another example of something trying to take advantage of the works of others, with no credit given to the original artist.

    Im sure Dido would be just as upset if it was done to her, with her works.

    Im not from the US, so if I used that photo, and as I do not pay US taxes would that be OK ?

    No it would not, just as its not ok for you to expect a right to anything producted by taxpayers money.

    One day you might work out the world does not work that way, and it would really suck if it did.

    You dont pay taxes to give you a right to anything you think tax payer money goes too. Really that is quite insane thinking.

    The government has all kinds of personal information about you, would you like all that information to be in the public domain ?

    If you follow your ill-logic, that would be what is expected after all, the taxpayer pays for the gathering of that information. So why not make it all public ?

    No, the world does not work that way.

    Are you that type of person, that says when you are pulled over by the police for speeding, "I pay my taxes, so therefore im your boss". To the cop..

    I really hope so. LOL

    No you pay taxes to keep social order, for services and advancement of your country. Its not a bank where you pay in and after awile you can decide what from them you want to take for yourself..

    I wonder sometimes if you guys have actually experienced the REAL WORLD. Or just live in some fantasy land where everything is done just for your personal pleasure and confort ?

    Little wonder the US is struggling so badly these days !.

     

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      Anonymous Coward, Oct 10th, 2010 @ 10:22am

      Re: So its ok to rip someone else off as long as its another American !

      Wow, big jump there? Your cognitive abilities seem to be lacking.

       

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    Peter, Oct 7th, 2010 @ 10:05am

    What a total douchebag. NASA should have left him in space or better yet, fired him off in the direction of the sun.

     

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    Grillo, Oct 7th, 2010 @ 10:06am

    I use that image too

    It's funny but I use the same picture in a poem that I wrote in one of my blogs.

     

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    Gman, Oct 7th, 2010 @ 12:43pm

    Smithsonian article from 2005

    funny - he didn't seem to think he was identifiable in the image 5 years ago when he talked to the Smithsonian. I wonder what changed his mind? maybe his 401K took a hit in the past couple of years.

    "The subject's anonymity, he says, is its best feature: "I have the sun visor down, so you can't see my face, and that means it could be anybody in there. It's sort of a representation not of Bruce McCandless, but mankind."

     

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    Geoff Strickler, Oct 7th, 2010 @ 2:34pm

    Douchebag?

    I'm wondering who is the bigger douchebag? Someone who would sue over photo in which no part of his face of body is visible, he has no visible identifying marks, and his entire image is a tiny part of the picture, and the photo is almost certainly public domain, or the lawyer who would file the suit for him.

    Just my opinion.

     

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    Mitch Featherston, Oct 7th, 2010 @ 4:34pm

    Hoped it was a joke

    I can't even begin to take this action seriously. It's not a joke, but it should be. How can the astronaut think he's going to win this case???

     

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    Jesper Fermgård, Oct 7th, 2010 @ 5:26pm

    Sue them all!

    30 years from now i'm going to be the at the same age as Bruce.
    Please kill me if greed and stupidity makes my day!

     

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    identicon
    Brian, Oct 13th, 2010 @ 3:09pm

    I'd love it if NASA sued this dirtbag.

     

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