Graphical Manipulation - Beheaded and Sold?

popdookey asks: "Can a known image of me be beheaded and marketed as someone else without my permission? I just returned home to Georgia and discovered that my head had been replaced on a favorite photograph that was now being used to promote sandwiches. It was a great photo of a few of the old-time employees and founders of a very successful restaurant franchise taken in front of its original location. The faces of the employees have been replaced with those of the wealthy but absent owners to create a more marketable and nostalgic image. It is great advertising, but 92.3% of that body is mine as was 100% of its contribution. Is this legal without my permission, and if so, wouldn't this lead to historical fraud?"

Comments

This has got to be the strangest Ask Slashdot.

[amarodeeps]

Except for the one I was about to post.

amarodeeps asks: I've had reconstructive surgery more than five times in the last two years, owing to an episode of explosive diarrhea gone bad (I'm a competitive explosive diarrhea vaulter, ranked twelfth in the world). Yesterday, I found out that my left cheek (not that cheek!) was used by a doctor in an ad to promote his plastic surgery practice. Is this legal? Should I be getting royalties? How should I approach this, do I need a lawyer? Should I really be asking this question on ask slashdot in the first place?? Thanks!

I can help..

[manavendra]

...if you let me know how you found out precisely 92.3% of you was on this modified picture...

I love computers!

Hi. I'm Troy McClure

[Anonymous Coward]

Hi. I'm Troy McClure. You might remember me from such headless TV advertisements as "Don't Stand Up at Cedar Point" and "Sleepy Hollow Mattress Sale This Weekend"

face it pal

[jeffy124]

all your head shots are belong to us

Re:Correct me if I am wrong, but...

[meta-monkey]

IAAPPAIKTIAAFJ (I Am A Professional Photographer And I Know This Is An April Fools Joke)

Yes, you have to have a model release in order to use someone's likeness for commercial purposes. However, they have to be identifiable. Since the guy's head is removed, he's not identifiable, so there's no legal violation.

Examples: I can take a photo of you and publish it on my personal website. I cannot take a photo of you and publish it on my business website (korphoto.com if you're interested :) ) as an advertisement (implicitly or explicitly). I can take a photo of you such that you are unidentifiable (from behind, cropped to remove your head, silhouetted, etc) and use that for commercial purposes or in advertising.

You should talk to a lawyer

[aburnsio.com]

According to a FindLaw primer on employee rights, you may have an action to sue your former employer for using your photograph without your permission. You should contact an employment lawyer in your area; you might be able to get a settlement from your former company to justly compensate you for your photo being used without permission.

Key questions you need to answer:

1) Did you sign a written consent form allowing the company to use your photograph?

2) Do you have the original photograph to use as evidence that you are in fact the one in the picture?

3) Do you have current contact information for the other employees in the photograph that have been similarly misused?

4) Do you know when the ads first appeared, how long they have been running, and in what medium (newspaper, TV, magazines, web, etc.)?

5) Do you have samples of the advertisment in question that could be used as evidence?

6) What jurisdiction applies? If the ad was shown in California you may have more protections for use of your photograph; Georgia only appears to have such restrictions for serious crimes like child pornography.

Your action does not concern "fraud", per se. Fraud, legally, is decieving others for gain. What you need to focus on is the state statues that require an employee to provide written consent before that employee's photograph can be used for marketing purposes.

For more details, see a general discussion on the issue from FindLaw:

Many states prohibit employers from using an employee's photograph for commercial purposes (such as in an advertisement or in a company brochure) without your written consent. Cases have been won by female employees who discovered their likeness on such materials but did not authorize their employers to use them.

For instance, see California Civil Code Section 3344-3346. I'll quote a small portion of this section which directly applies to your situation:

3344. (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.

The company is likely to argue that, because your head is not visible, you cannot be readily identified under 3344(b)(2):

(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

The company may also insist that your likeness is not "essential" to the advertisement, per 3344(c):

(c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the fai

Get over it, Jared.

[Lendrick]

I just returned home to Georgia and discovered that my head had been replaced on a favorite photograph that was now being used to promote sandwiches.

The terms of your contract specifically state that we can use your likeness in any way we want, including photoshopping some other dude's head onto your body.

Thank you,
The Subway Legal Department

Likenesses are protected

[torinth]

You are generally protected from your likeness being used for commercial promotion purposes. This is largely to protect you from unwillingly becoming the spokesperson for a Herpes treatment. However, if they chopped off your head, I bet you'll have a hard time saying that it's your likeness.

The fallback argument is that whoever took the original picture holds copyright, and the head-chopping promoters may not have secured rights properly. Track down the photographer and see if they knowingly released the photograph to these people.

My advice

[hey!]

Get a laugh out of it, then let it drop.

Otherwise you are going to have to get a lawyer, and consider what you could win (if anything) in a court of law. It's probably not going to be worth your while, the most likely thing is that they'll stop using that photo or photoshop in a completely different body. How does that benefit you? What will you get out of the whole affair other than wasting a few months of your precious time?

Personally, I think there are upsides to this. Suppose this chain becomes the next KFC, you'll have a funny story to tell out of the whole situation, which is probably more than you'll end up with by hiring a lawyer. Hell, I'd probably send them a letter mentionining I'd saw the photo and telling them it's Ok with me as long as they don't use my face.

For one thing think of the pickup lines, "I don't know about you, Ali's Felafel Pit really wanted my body."