This stock image of mine, shot about 2.5 yrs ago and now part of a Getty Images Royalty Free collection, accompanies a NY Daily News Article entitled:
Survey Finds Average Woman Has Eight Sex Partners – And Is Drunk For At Least Five of Them.
Luckily my stock model was very understanding and she laughed this off. But seriously – Isn’t this Sensitive Use? How do stock agencies police this for RF? Do they even bother?
Just regarding whether this could constitute “defamation”: A lot depends on the context of how the image was made vs. how it was used. No offense, but this is an image obviously shot for stock, and is clearly a fictional situation, and its content is very much in line with the subject of the article. Also, the headline doesn’t say “this woman drinks and sleeps around!” – they were careful enough to say “the average woman”, which any sensible person would instantly infer to mean that the woman in the photo isn’t a specific woman who does this, necessarily. No one looking at this image would say, oh, that’s my friend Mary and I’m scandalized that the article is suggesting that she drinks and sleeps around! Anyone who knows this woman knows that she models, that the photo was meant to be fictional, and she knows what she was depicting when she agreed to create this narrative and signed the release. Another way to look at it is when crafting this image, what do you imagine the caption would be? Is it defaming to suggest the woman in the photograph is about to sleep with this man, whom she may or may not be in a relationship with, and that she drinks alcohol? If she’s in this picture, not really, right? It might be defamation only if it wasn’t a posed picture and her privacy rights were violated by printing it. So in this case the idea that it would be defamation doesn’t make sense – how is it defaming when the possibility of what the article is about is right there in the content of the shot, and it’s a released model in the shot? It would be a totally different thing if they used a generic portrait of a woman and pasted it over the face of this model, for example – the portrait model might have a legitimate grievance in that case (even if she signed a release), but the act of cutting & pasting like that is a breach of stock photo use-license agreements, so, theoretically, the stock agent could seek damages from the end user in such a case. But it’s highly doubtful that stock agents bother to police their customers to such an extent that the image they sold for $5 was used only in the proper way.
I should add that if the image had _not_ been shot for stock but ended up in a stock library because of some amateur/art student photographer posting it on Flickr and then not explaining to the woman what a model release really means, then things would get murky. But the model would have to be willing to take the photographer, the end user and the stock agency to court, and the first question the lawyers would ask her is “did you sign anything?” And if she admitted to signing a release, no one would touch the case with a 10 foot pole.
What else would it sell for?!!!
I agree that there probably isn’t a defamation case in this. I had said as much on Greg’s facebook page before I had read RS’s post here. I also agree that there also probably isn’t much that the agency can do in terms of policing this kind of use for royalty-free material. It may be an indication that the agency should more judiciously assess what material is released into the royalty-free category. Personally, I wouldn’t press them too hard about it; if that category allows them to publicize the collection in a way that will allow them to better market the part of their collection that does generate income for us (I’m among Greg’s models), I’d be a little hesitant to put to many constraints on them.
That said, we’re conversely under no constraint preventing us from taking the _Daily News_ to task for their lack of taste and integrity. The New York Daily _NEWS_? Give me a break. How about the New York Daily _DISTORTION_. If you follow the link to the story, you find that the study was done by a British cosmetics company, hardly the most August of research institutions. The source of the _Daily News_ story is a story that appeared in the _UK Daily Mail_. Let’s look at a sentence from the UK paper’s article and see how headline in the NY paper amps up the story. The third paragraph in the story in the UK paper reads: “Researchers, who surveyed 3,000 women aged between 18 and 50, found the average woman has slept with eight men, but was drunk with at least five of them.” Now look at the _Daily News_ headline. First, consider how the headline exploits a quirk of English grammar. Yes, it’s perfectly grammatical to use present tense to refer to an activity that spans a lifetime. If your grandma has sat in the second pew at church every Sunday for 60 years, she might say: “I sit in the second pew;” and it’s perfectly grammatical to use the present tense in referring to the cumulative total of sexual partners, as: “Over the course of a lifetime, the average woman has sex with 8 different partners.” So, while grammatically correct, the _Daily News_ headline clearly creates the false impression that the study is telling us that the average woman has 8 sexual partners at the same time (or perhaps in some kind of routine rotation, sort of like a pitching staff in baseball).
The distortion is reinforced by the very fact that the phrase is used as a headline. If a woman has had 8 partners by the time she’s 34 (the median age of the study), that’s hardly dramatic enough to warrant a headline. The use of that statistic as a headline prompts us to perceive the more lurid interpretation of the phrase. Further, the headline leaves out the age range of the study participants, and the model appears to be about 22 or so. Even if we adopt the more forgiving assumption that her partners are in sequence rather than in rotation, her age suggests that she’s consuming a new guy at a pace of about one every 6 months.
The liberty taken with verb tense produces a similar distorted impression of the study’s findings about alcohol use. Finally, the _Daily News_ headline leaves out the fact that the study took place abroad. Tthe wording of the headline and the choice of stock photos combine to reflect the actions of a journalist bent on creating the impression that the girl next door is a booze-swilling tramp. This is the stuff of pulp fiction, not news.
Hmmm. This site format doesn’t allow posts to be clearly separated into paragraphs. Perhaps I should have broken that up into a series of posts for easier reading.
To answer your question Thomas, there are a number of things that such a stock photo might be used for. Maybe an ad for sleepwear, perhaps a feature story about a couples retreat. When I look at him, I imagine it could be something relating to soldiers returning home from the battle front. It would even, in fact, be more suited to the _Daily News_ story had the headline more accurately reflected the content of the story.
@ Ted: Couples retreat? Coming home from battle? How about Derek Jeter coming home to his girlfriend. COME ON!?! Soft, pink, porn like lighting, bad styling, and cheesy props (it might be the lens, but why does it look like the bed is pushed up against the door? Is it a pay by the hour hotel?). Really, defamation? That’s such a joke.
Richard: You’re doing a bit of tilting at windmills, arguing against a point I didn’t argue for (re defamation). You do make an interesting point about the door. Looks like the photoshop work doesn’t quite measure up to the quality of the original photo. Doesn’t negate anything I said about the liberties the _Daily News_ takes with their headline; but it is an interesting technical point about a flaw that may affect the viewers perception of the mood, whether the viewer is conscious of it or not.