Privacy and Publicity Rights Lawyer for New York, London, Paris and Los Angeles Models - Misappropriation of European, U.S., British, and French Models Images Modeling Photos and Likeness in Advertising, Film, Videos and Advertisements. Entertainment Attorney Sebastian Gibson

As a Modeling Lawyer and a California Privacy and Publicity Rights Attorney, it’s my experience that models and celebrities in Miami, Chicago, Houston and around the world have their photos misappropriated and misused every day in commercial settings without their permission or a valid release. Claims can be brought with the help of an Entertainment Attorney from our Publicity and Privacy Rights Law Firm on behalf of any nationality of model or celebrity for the misuse of their photos to advertise products from cosmetics to the bottle service at nightclubs many of them help to promote.

To understand how Atlanta and Boston models and celebrities are being taken advantage of in the U.S., a brief explanation of some applicable law in the U.S. by our law firm must be made. We’ll try to get to how Italian and Brazilian models are being taken advantage of on a daily basis and how a Charlotte or Las Vegas model can sue for damages in states such as California where we have our offices.

First, most American models know that they don’t own the photos a photographer takes of them. Even so, when a Swedish or Norwegian model is photographed or filmed modeling clothes or jewelry on the runway, at a photographer’s studio or anywhere else, they still have considerable say as to how and in what manner their photographs can be used and can sue when their photographs are used without their permission.

Models with New York or Rio de Janeiro modeling agencies who first enter the modeling profession often have a difficult time understanding whey they don’t own any photographs taken of themselves. They have to wonder why a photographer should own a photograph when the subject of the photograph is the model.

The answer is that even though it is the beauty of the model that is the subject of a photograph, it is the photographer who creates the work by determining the lighting, the shutter speed, the pose (although the model may have much to do with this, as well) and who finally clicks the shutter. The photographer has the camera, the assignment, and is using his or her time and often their studio and assistants or who picks the location to make the shots come out as well as they do.

But the photographer at that point only has a photograph he or she may be able to use in a book of photographs or for other personal uses, depending on the state, or which the photographer can sell to others. A photographer may, depending on the state, also be able to use a model’s photograph on the photographer’s web site.

Those to whom he or she sells or licenses the photographs however, can’t use the photograph unless the model either signs a release allowing the photograph to be used for any purpose whatsoever (which would be a much too broadly worded release and which would allow the photograph to be used to advertise things a model would normally not want any association with) or which more restrictively, allows the photographer to license the photograph for specific types of advertising. If an advertiser licenses a use of the photograph and exceeds the license, if any, given to the photographer by the model, the advertiser can be sued. It’s as simple as that.

The problem for most Portuguese, Japanese and most other models whether they’re from Australia or Argentina, is that they aren’t able to track where there photos are used in many occasions or they don’t know what rights they gave their photographers, especially since they are photographed by so many of them, and they rarely keep copies of the releases they’ve signed, relying instead on their modeling agencies to keep track of such things.

Fortunately, when a Canadian or German model does see their photograph misappropriated by an advertiser, in many cases, their damages have increased by the widespread use of the photographs, thereby increasing the amount of damages they can sue for, unless the length of time that has passed exceeds the applicable statutes of limitations. Our Publicity and Privacy Rights Lawyers can determine if the statute of limitations has passed or whether a model can still bring a claim in U.S. courts.

The reverse can also be a problem for a Russian or U.S. model. If a model wants to use a photograph taken of her for her own purposes, say on Facebook or elsewhere to promote herself or himself, the model must (or certainly should) obtain permission from a photographer by means of a usage license. Many models fail to do this and run the risk of being sued themselves.

Some photographers in cities such as Denver and San Francisco use hybrid releases which are both a model release and a usage license. If used properly, the model release language spells out what uses each party, the photographer and the model may make of the photos owned by the photographer that he or she takes of a model from Seattle or from Germany.

But it is the end purchaser of the photo or the advertiser who either fails to obtain a license to use a photograph of the Madrid or Dallas model, or who obtains a license that the photographer had no right to give, or who uses a photograph in a manner which exceeds the authorization given by the model to the photographer, who usually violates a model’s Privacy or Publicity rights and who can be sued for substantial damages.

If a cosmetics company or even a nightclub, for instance, wants to use a photo of a Italy or Canada model to promote their product or an event at their nightclub, the business owner must make sure they don’t infringe on a model’s Privacy or Publicity rights. A Spain or Sweden model has both sets of these rights in most states and while similar, they also have some important differences which can add to the damages a model is entitled to for the misuse of their photos.

Secondly, a model, whether they are from Amsterdam, Vancouver or Moscow, whether they are male or female, an adult or under 18 years of age, should know that they have rights in the U.S., whether they are from Portugal, Asia or from anywhere else in the world. Our Privacy and Publicity Rights Attorneys will evaluate a model’s claim over the phone without charge.

The Privacy and Publicity rights of a model from Japan or New York are separate from copyright rights. Privacy and Publicity rights protect a model’s personal interests in their privacy and the right to control the use of their images. Copyright protects a copyright holder’s property rights in a copyrighted work. The Entertainment Law Firm of Sebastian Gibson also handle copyright and trademark infringement matters in the U.S.

Privacy Rights

A Norway or Denmark model’s right to privacy is violated of course by unreasonable intrusions upon their seclusion, by publicly placing them in a false light or by making public certain facts of their private life they would have preferred to keep private. Police can be called to stop stalkers or overzealous paparazzi. But with today’s proliferation of fan sites, social media and other internet sites, other violations of a model’s Privacy rights are normally difficult to prevent without litigation.

It is the appropriation of a model’s likeness, images and photos that gives rise to a claim for damages by models in the modeling industry. Let’s say a dance club obtains a photo from the photographer of a model and uses it to advertise events and bottle service at an expensive nightclub. Is the nightclub owner subject to a claim for damages? Very possibly.

While the nightclub owner may have obtained a license from the photographer (who owns the copyright in the photo he or she took of the model) if the photographer didn’t have a broadly worded release from the model permitting the photographer to license the use of the photo for the type of advertisement it is being used in, or didn’t obtain the model’s release for the photographer to license others to use the photo for any and all uses, the nightclub owner will be responsible for damages to the model.

Unless an advertiser (in this case, the nightclub owner) obtains permission from the model to use the photo, the nightclub owner is infringing the model’s privacy rights and is subject to a considerable claim for damages. The more money the nightclub makes from advertising events with the model’s photograph, the more damages the model is entitled to. The more times the photo is used, the larger the damages the nightclub owner is liable for.

And if the advertiser uses the model’s photograph in a demeaning way or uses it in such a way as to place the model in a false light, the advertiser or nightclub owner may also be responsible for payment of damages to the model for the additional privacy right of portraying the model in such a false light.

The difference between the privacy rights and the publicity rights of a model can be explained this way. With privacy rights, the model has the right to be kept out of the spotlight when the model wants some privacy. In other words, the model has the right to be left alone and to live his or her life on their terms and in private when they wish. With the publicity rights which the law affords to a model, the model has the right to ensure that any commercial exploitation or usage of the model’s likeness is only with the model’s permission and only for compensation negotiated by the model or the model’s Brazil or Poland modeling agency..

Publicity Rights

As valuable as Privacy rights are to a Hamburg or Buenos Aires model in the modeling industry, a model’s Publicity rights are even more valuable and are more often violated.

A Toronto or Montreal model’s right of Publicity involves the right of a model to protect the model’s likeness from being commercially exploited without their consent, and in most cases, without any compensation to the model. It is thus the right of the model to control and make money from the commercial use of their image.

A model from Sydney or Melbourne has a right to control the use of their likeness in photos taken by photographers and to profit from the use of such photos, videos, film, drawings, paintings, name or even their voice in any advertisement or use of their image to promote anything that will further the commercial success or profits of another, including charities and non-profit organizations since they too are businesses.

So where does this right come into play? In nearly every place a photo of a Danish or U.S. model is used without the permission of a model for that particular commercial use. Whether the photo or video of a model from Europe or America is used to promote a product, a person’s website, an event, a service or an advertiser’s business. If a model’s photo is used without the permission of the model, the advertiser can be held responsible for payment of the profits made from the use of that model’s image, to the model.

Say a cosmetics company obtains photos taken by a professional photographer of a Sao Paulo or Santiago model for use in a cosmetic advertising campaign. The company has in most cases obtained the photos from the model’s Tokyo, Krakow or Berlin modeling agency or the photographer used by the modeling agency, and the model has signed a model release authorizing the use of the model’s photographs for the cosmetics campaign. So far, everything is probably fine.

But let’s say that the cosmetic company decides to expand their campaign to the internet. Already, the cosmetic company may be using the photos beyond the scope of the model’s release.

If the cosmetic company decides to use footage of the Australian or Argentinian model in a video for YouTube that the cosmetic company hopes will go viral, the cosmetic company has almost certainly gone beyond the scope of the license to use the photographs they obtained from the photographer.

And if the cosmetic company decides to use the photos of a Polish model to promote their new jewelry line, the opening of a new store, the cosmetic company has in all likelihood gone far beyond the scope of what the model or the model’s modeling agency allowed them to do.

Publicity Rights cases involve the use of models photographs on products from vitamins to coffee to anything else sold or marketed in the Netherlands or anywhere in the world. It is truly astounding the number of advertisers who use photographs for advertising campaigns without proper releases not only from the photographer but also from the models (or a parent or guardian if the model is under 18) to use their photographs in extensive advertising campaigns which leave them vulnerable to lawsuits for millions of dollars.

While every state in the U.S. has different Privacy and Publicity Rights laws, when an advertiser unlawfully uses a Czech or Spanish model’s photographs in an advertising campaign on the internet or in a national advertising campaign, the model can, in many cases, choose the best state, often California, to sue the advertiser for damages. In a number of states, the publicity rights even survive a person’s death.

Federal lawsuits may also be filed by a model where the use of the model’s identity is used to create a false endorsement under the Lanham Act. While the theory of "fair use" is a defense to a copyright action, it is not a defense to a claim a model has for violation of Privacy or Publicity rights.

A Stockholm, Oslo or Copenhagen model’s claim for misappropriation of a model’s image exists when the model’s photograph, video or film is used in a any type of commercial setting. Once the issue of whether the advertiser had the model’s release for the use in which the model’s photo, film, video or commercial was used, the larger issue of the amount of damages for which the model can bring a lawsuit must be determined. That will depend on a number of factors, most important of which are the profits made by the advertiser and the number of times the photographs, commercials, films or videos have been used.

Claims for damages for violation of a Frankfurt or Milan model’s publicity or privacy rights must be made within certain time limits which vary from state to state. The sooner a model sees that their modeling photos have been used by an advertiser in a manner in which the model never authorized their use, the sooner a model should contact a privacy and publicity rights attorney such as Privacy and Publicity Rights Lawyer Sebastian Gibson. Being entitled to payment for the use of one’s images doesn’t mean that a lawsuit will need to be filed. However, a model will almost certainly need a Publicity rights and Privacy lawyer to convince an advertiser the model is serious about filing a lawsuit unless they compensate the model for the misappropriation of their likeness for commercial purposes.

Not all states recognize both privacy rights and publicity rights. Some states merely recognize the rights under other theories of law such as misappropriation, false representation, conversion and even fraud.

A model’s likeness is a model’s greatest asset. They have the right to live in privacy if they choose and the right to be left alone and out of the spotlight. They have the right not to be put in a false light or ridiculed or portrayed in a manner that goes against their personal beliefs and what they stand for.

Scottsdale as well as Rome models also have the right to control the use of their image in commercial settings such as advertisements. If the model’s likeness is being used in a manner that implies an endorsement or is being used in any manner to sell a product, service or even an idea or concept to others for the benefit of someone other than the model, even a charity, it is being used in a commercial setting. And when a Prague or Barcelona model allows others to use their likeness for purposes they never authorized, or to be used without being compensated, they are giving away their greatest asset - themselves.

The Entertainment Law Firm of Sebastian Gibson in California represents models, celebrities and entertainers throughout the world and specializes in the protection of New York, London, Paris and Los Angeles model and celebrity Publicity Rights and Privacy Rights in the U.S. and in other countries. If you believe your Privacy or Publicity Rights may have been violated by the misappropriation or misuse of your image, photos or likeness in advertisements, film, video or any commercial advertising, call us for a free consultation by phone.