Quote:
Originally Posted by xfactor
Hey Guys/Girls-
I had something come up yesterday and I was wondering how I should approach it. RedXtreme and I had a picture taken in Hawaii at the Pro Bowl in which the photogragher it profitting pretty well from. He has sold it to Maxim Magazine and now to Hellsberg Diamond/KC Star. My question is I know that a public domain photo can be sold by the photographer but that photographer sold it to Hellsberg Diamond who turned that into advertisement. The problem is I haven't given anyone permission to use photo for anything and especially not to a company making money off an image of us. I looked up laws on this and from what I'm understanding you can use a photo in editoral but not advertising without permission. Any thoughts?
|
What you have is a tort claim called "unauthorized use of likeness for a commercial purpose". Sometimes, this is phrased that they have violated your "rights of publicity" (your right to control the commercial use of your name or likeness). The elements that you would need to prove at trial would be 1) That the Defendants used your name or likeness, 2) for a commercial or exploitative purpose and, 3) they did not have your permission.
There are some limitations on your ability to make this type of claim. If you are seen as too big a celebrity, then it is sometimes argued that you have no privacy interest in your image (this is the minority of states' view and with the money at atake will probably soon disappear completely). If you are not a celebrity then it is sometimes argued that you have no rights of publicity because your likeness has no value (this is also a minority of state's views and seems to be shrinking).
It appears
Missouri does recognize this right (in the common law tradition of the courts, but not explicitly by statute) and the fact that the use in this case (to help sell diamonds) is so obviously and completely profit oriented, if I were a MO civil atty, my ears would perk up and I'd want to hear the details.
I'm not going to say that you have a viable case, that, as others have suggested here is something that you should talk to a local attorney of your choice about. But you SHOULD take the time (and if necessary an hour or two's worth of a consulting fee from @ $120-$300) to have the case properly evaluated. There are many more questions I would have (calculating potential damages and costs of litigation would be tricky I would think), but it seems to me like a case where you might net some decent settlement that might help you out with some bills for a while.
In any event, if you had to take it to trial, I would love empanelling that jury. Chiefs fan v. Diamond Merchant. It's almost as good as the one case i had one time with "little old lady with dog with amputated leg v. Fed Ex".
This is a pretty good link I found with some more general info:
http://www.citmedialaw.org/legal-gui...keness-another