Married Woman Sues Match.com For Using Her Photo In Ads

from the false-endorsement dept

The internet sure makes things tricky sometimes. A married woman named Anne Read Lattimore is suing a photographer and two websites concerning a photograph. Apparently a salon hired a photographer named Roger Kirby to help create a website. As part of this, Kirby photographed Lattimore after she got a haircut from the salon. No documents were signed, but Lattimore apparently gave permission to use the photo on the salon's website. Kirby went further and uploaded the image to Stock.xchng, the free stock photo site owned by Getty Images. From there a few others downloaded and used it -- including Match.com, who used her image in ads on Facebook, implying she was a member. As you might guess, this became problematic when people who knew Lattimore -- who, once again, is married -- saw her picture and were confused about her use of Match.com. In addition, she's suing another site, HealthCentral, which used her photo in a story about coming out as a homosexual. Lattimore notes that she is neither a homosexual, nor has she come out, as the article and photo imply.

It seems like her real complaint is with the photographer who uploaded the images, and suggested they were free and available for a variety of uses. While the license on the stock photo site did say the image could not be used to endorse a product, it's difficult to see how Match.com or HealthCentral could have reasonably known that the photo was of someone who didn't want it used at all. It seems like attaching liability to those sites would open up huge potential liability for third parties using stock images. Of course, you could argue that such sites shouldn't use stock images in the first place, but that's a separate issue beyond the legal questions. In this case, though, she's alleging both defamation and misappropriation of likeness. The law may be on her side concerning the defamation claim (that may depend on the specific state law), but I do worry about the implications if that's the case.


Reader Comments (rss)

(Flattened / Threaded)

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    John Doe, Oct 6th, 2011 @ 4:37am

    You answered your own question

    While the license on the stock photo site did say the image could not be used to endorse a product, it's difficult to see how Match.com or HealthCentral could have reasonably known that the photo was of someone who didn't want it used at all.

    They used a photo from a site whose license says the photo can't be used to endorse a product. That is how they could reasonably know that it was a photo of someone who didn't want it used to endorse a product.

     

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    hmm (profile), Oct 6th, 2011 @ 4:42am

    if match.com is smart

    Then they'll say they're sorry for using an image that WASN'T correct and offer to pay her for her image.

    That makes match.com look good, satisfies the woman as shes then basically a paid artist and everyone (except the lawyers) wins!

     

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    Michael, Oct 6th, 2011 @ 4:48am

    Ultimately, I think the photographer is the one who's going to get it, I bet. He's supposed to have a signed model release to put the photo up for commercial use, and he doesn't. Sounds like he's one of that new breed of "I have a camera I almost kow how to use, so I'm a professional photographer" people.

     

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      DannyB (profile), Oct 6th, 2011 @ 5:29am

      Re:

      While I agree that you have correctly assigned liability exactly where it belongs, the stock photography site could take steps to protect itself by requiring a copy of the model release when accepting a photo that it will resell the use of.

       

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        Vidiot (profile), Oct 6th, 2011 @ 5:55am

        Re: Re:

        True, but the so-called "microstock" business model requires as little participation from the site operators as possible... basically, the submitter ticks a box to indicate they own all the rights and can assign them. Conventional, big-ticket stock houses are more likely to ask for releases. Microstock is always a buyer-beware sort of proposition.

         

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        Anonymous Coward, Oct 6th, 2011 @ 7:27am

        Re: Re:

        I think they already covered that with the EULA where it probably says that the user is responsible for all material uploaded.

         

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    JB, Oct 6th, 2011 @ 5:07am

    Isn't this just blatant false advertising by Match.com though?
    They are making a claim that this woman is a member of their site, when she isn't. Regardless of whether the image was "free to use" or not - they should be sued anyway; just for different reasons.

    Surely it cannot be legal to just trawl the internet for pictures of people and claim they are members of your dating site, enticing others to join!

     

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      Anonymous Coward, Oct 6th, 2011 @ 7:23am

      Re:

      The problem is the photographer who upload the photo not Match.com in this case since they looked at a photostock place to find photos to use for their propaganda purposes.

       

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      Anonymous Coward, Oct 6th, 2011 @ 7:26am

      Re:

      About the false advertisement, probably not, if it were a lot of people would be in trouble not just match.com, but Microsoft, IBM, Ford, Nestle, Motorola, Google, they all used models to make propaganda.

       

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      John Fenderson (profile), Oct 6th, 2011 @ 1:22pm

      Re:

      They didn't claim she was a member, they implied it. This is ubiquitous behavior in advertising: technically accurate, but designed to lead you to believe something that is untrue.

       

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    max.elliott (profile), Oct 6th, 2011 @ 5:19am

    Libel

    I'm going to guess, before RTFA, that the photographer catches the copyright/IP suit, and that the other two catch libel suits. They're not in trouble for using the images so much as attaching her identity, thru the token of her face, to homosexuality and cheating on her husband.

     

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      DannyB (profile), Oct 6th, 2011 @ 5:31am

      Re: Libel

      That may be true. However, they will directly sue the stock photo site, which in turn would then sue the photographer.

      Somewhere along the chain, someone misrepresented what this photo could be used for. According to TFA, it appears to be the photographer.

       

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        ThatAVGuy (profile), Oct 6th, 2011 @ 6:05am

        Re: Re: Libel

        "While the license on the stock photo site did say the image could not be used to endorse a product"

        When they attempt to sue the stock photo site, wouldn't they just reply - hey, your not allowed to use the photos to endorse a product.....?

         

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        Anonymous Coward, Oct 6th, 2011 @ 7:28am

        Re: Re: Libel

        She should sue the photographer because if she tried to sue the website they are probably covered by the safe harbors of the DMCA.

         

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          DH's Love Child (profile), Oct 6th, 2011 @ 8:16am

          Re: Re: Re: Libel

          This isn't a DMCA issue. She's not claiming copyright, she's claiming defamation and misappropriation of likeness.

          Besides, the sites actively used the content in question so they would not be protected. The stock photo site would be protected by DMCA, but not Match.com.

           

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          Anonymous Coward, Oct 6th, 2011 @ 11:16am

          Re: Re: Re: Libel

          nope.

          The DMCA doesn't include any safe harbor from right of publicity claims.

           

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      DCX2, Oct 6th, 2011 @ 7:39am

      Re: Libel

      "cheating on her husband"

      Wrong website. That's Ashley Madison.

      Nothing about Match.com implies cheating on your spouse. The only way you would think "cheating on her husband" is if you knew a-priori that she was married, which you don't.

       

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    Capitalist Lion Tamer (profile), Oct 6th, 2011 @ 5:28am

    Good to know

    Now I've got the info I need to steer my wife away from a hairstyle that says "single and willing to experiment."

     

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    ILL Deuce, Oct 6th, 2011 @ 5:57am

    Faux Pas

    And you guys publish her home address by showing the case front page?? NICE!!

     

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    Anonymous Coward, Oct 6th, 2011 @ 6:04am

    The comment "No documents were signed," says it all.

    The photographer did not have permission to upload her photograph to ANY site and thus could NOT place a license on that photograph which allowed it to be used for ANY purpose.

     

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      Aerilus, Oct 6th, 2011 @ 6:11am

      Re:

      verbal permission is sometimes enough it was a salon so probably more than one person around to hear.

       

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        DH's Love Child (profile), Oct 6th, 2011 @ 8:24am

        Re: Re:

        But her permission was for the salon's website, not for any website to just use willy nilly.

         

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          Aerilus, Oct 6th, 2011 @ 4:39pm

          Re: Re: Re:

          If the salon user was using the photo storage site to store and display images on his site then technically it is for the salon's site any image online can be copied. why is it the salon owners fault that others copied the image if in fact he did ask explicit permission to put it on his website?

           

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      Chosen Reject (profile), Oct 6th, 2011 @ 9:09am

      Re:

      You're almost correct. The photo can be used almost willy nilly. The photographer has the copyright and can publish the image in almost any place he likes. The only time he cannot is when using it to endorse a product. He could put the photo on his blog, flickr, facebook, wikipedia, google bomb the thing if he wanted it to show up everywhere, he could put it on posters and spread it all over town, display it in art galleries, etc. But until a model release form is signed, he cannot use it in a way that makes it look like the woman is endorsing a product or service.

      The details are too boring to get into, which I did once, but I'm not a photographer so I didn't bother to remember all of them. But the gist above is correct. The photo can be used almost willy nilly, but a model release form is needed for certain narrow situations (this being one).

       

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    AJBarnes, Oct 6th, 2011 @ 6:20am

    Just rewards

    You get what you pay for. Match.com wanted to be cheap and get a free picture. Now they find out that free really isn't free. I can't believe with the bazillion dollars they're making on that site they can't afford to pay to license a picture, or take their own danged pictures.

     

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    Eric Goldman (profile), Oct 6th, 2011 @ 6:33am

    Mike, advertisers know they need to get publicity consents from every person they depict in their ad copy. The law is entirely clear about this. So if the facts are as alleged, Match.com is in deep trouble. Eric.

     

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    CN, Oct 6th, 2011 @ 6:51am

    I think in both cases they should know better than to use a random person's image.

     

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    Transbot9, Oct 6th, 2011 @ 7:06am

    You know what? I agree with the person suing

    As a graphic designer, I have to know about legalities like this in order to make sure that I don't do something stupid and get myself sued.

    In my world, stock photography is one of those little white lies that everybody uses to get the job done quickly. No signed model release gets the photographer in trouble real quick. Match.com violated the liscense of the stock photography site (which is usually a contract with the photographer) by imply endorsement and could be subjected to false advertising. The medical site does have a decent chance of being slammed for defimation.

    The defendents all did dumb things - specifically, whoever is responsible for the imagery in the medical company and match.com did lazy, stupid things; the photographer releasing a photo to a stock site without having the model release was a really stupid thing.

     

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    Anonymous Coward, Oct 6th, 2011 @ 7:07am

    SXC (its servers being located in Hungary) is a stock site for free photographs that can be used in a myriad number of ways, but even its Upload License Agreement does have a restrictions regarding what can be uploaded, and its Download License Agreement does have restrictions regarding how photos may be used.

    I know the terms of the two licenses quite well, and it is clear that both the uploader and the "downloader user" have paid short shrift to the respective licenses. What saddens me is that I have used the site as an uploader for many years, and have repeatedly commented to its principals that the licenses are very poorly crafted and leave the site vulnerable. On several occasions I even offered to draft pro bono new versions of each license, precisely to help keep the site out of hot water.

    The licenses do at least contain an indemnification provision, giving it causes of action against both the uploader and downloaders in this case, but that is largely window dressing since photo uploads originate from all over the globe.

    The fact it is a free stock site, not "royalty free" in the sense of not having to pay continuing royalties, might suggest to some that the inventory of photos are of questionable quality, but a perusal of what is available fairly demonstrates that this is hardly the case. Many of the photos easily rival (and exceed) what can be found on sites like Getty.

    My familiarity with the site is because I have been an uploader for many years (never a downloader, and have enjoyed the experience because so many of my photos have been used for national and international ad campaigns. I still get a kick out of finding my photos appearing on ads and displays in the stores of major retailers that I frequent. Of course, I do not upload as a general rule photos of the type that are suitable for the types of uses alleged in the complaint.

    The present matter notwithstanding, it is an excellent source for stock photos, many of which are hi-res that can easily be used in very large projects, up to and including poster size prints.

     

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    JackSombra (profile), Oct 6th, 2011 @ 7:37am

    Quick search shows most likely reason they used her photo (http://www.facebook.com/people/Anne-Read-Lattimore/27412303 )…always thought those people (perfect but also ordinary hair/skin/teeth/smile) in stock images were so heavily photoshoped that one would be hard pushed to recognize the real person. But seems they do exist

    Most of it seems straightforward to me

    Photographer broke the model release with her. Pretty clear cut case with him
    Match.com just got caught doing false advertising, breaking licensing agreements and depending on were/how photo was used her lawsuit for defamation and misappropriation of likeness could be appropriate (if they used it on one of their fake ad’s then they best settle fast)
    As for Health Central, Using an unknown persons photo in an article about coming out as homosexual….they need to be just taken outside and shot for stupidly

     

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    Trails (profile), Oct 6th, 2011 @ 7:55am

    What do we want? Context!

    It seems Healthcentral had her pic http://www.healthcentral.com/common/images/9/969191_model_258869_4.jpg associated with the article "Come Out, Come Out, Wherever You Are" http://www.healthcentral.com/sexual-health/sexuality-256846-5.html

    Can't find the match.com ad.

     

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    Cowardly Anon, Oct 6th, 2011 @ 8:02am

    Forgive my ignorance on this subject, but isn't her including Match.com and HealthCentral similar to when Walmart/Target/etc are included in a patent lawsuit for selling the product that is said to be infringing on a patent?

     

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      Anonymous Coward, Oct 6th, 2011 @ 11:13am

      Re:

      I would say no. Match.com used her picture to endorse their product, which is misleading (since she does not use or endorse the product) and a violation of the license agreement of the picture site. HealthCentral used it in a manner heavily implying she was homosexual.

      The analogy would be more like WalMart making copies of software that was included in a patent lawsuit. Maybe they had no idea that the product they were getting was not properly procured, but they still knew that what they were doing was wildly inappropriate.

      Even if they OWN the copyright, a company should not be able to pull up a photo of a random private citizen and attach it to their product. Or put it in an article that has nothing to do with them. It is both a violation of the person photographed and misleading to the public.

       

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    Anonymous Coward, Oct 6th, 2011 @ 9:34am

    Man, gotta get to Georgia...they grow em FIIINE down there!

     

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    Anonymous Coward, Oct 6th, 2011 @ 12:23pm

    So the photos on banner adds to 'dating' sites are all just lies carefully constructed from stock photos to encourage me to click on them?

     

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    Crabby McClaw, Nov 23rd, 2011 @ 7:34am

    Case dropped

    This suit has been dropped.

     

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    DT, Aug 7th, 2012 @ 10:32pm

    Match has been creating fake profiles for years.....

    They are the most crooked organization known to man.

     

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