BIRMINGHAM, England – The story of Grace Marr, a student at Aston University, holds within it a cautionary tale for any business that employs the services of graphic artists, whether in-house or third-party.
It’s a particularly important warning to heed on the part of adult entertainment companies, considering the images and ads we create often inspire strong emotional reactions from those who view them. As such, our ads and images probably are more likely to result in legal headaches when the circumstances allow for such.
According to media reports, pictures Grace Marr uploaded to her Facebook profile were used without her permission to advertise “a ‘no-strings attached’ casual sex website.” Specifically, three pictures of Marr were included alongside an advertisement for a site where one can find “hot, horny singles in your local area.”
If you’ve been around the adult internet for any amount of time, this sort of thing is nothing new to you, of course.
It has been well known for many years that dating sites often use images of non-members to advertise their sites and services. While it’s not the case that every such advertisement includes some manner of copyright violation (and with respect to images of famous people, potential ‘right of publicity claims’ as well), it’s not exactly a secret that some within the online adult entertainment industry have been known to use a pilfered pic or two in their marketing materials on occasion.
The danger for adult companies is the excuse typically offered by adult companies to each other when copyright violations are found within advertising and promotional materials—you know, the tried and true “rogue designer” line—may not fly with a person wearing black robes and holding a gavel.
A graphic artist, whether an employee or a third-party independent contractor engaged to do a specific piece of work, probably will be considered an “agent” of the company in the eyes of the law.
So what, you ask?
Well, the law of agency generally holds the “principal” (in this case, the company) liable for the acts of its agents, at least to the extent the acts of said agents are undertaken in service of the principal and/or in furtherance of the principal’s interests.
The ins and outs of the law of agency, its exceptions and particulars, are far too complicated to address adequately here, but if you want to get a sense of just how little protection a principal often has against the illegal acts of its agents, here’s a case you should look into (or far better, have your attorney research and explain to you): Curtis v. General Dynamics.
In Curtis, an ad agency employed by General Dynamics created a composite image which included several images of wheelchairs. The agency particularly liked some wheelchair images submitted during the bidding process by a photographer named Melvin Curtis, so the agency instructed the artist who eventually won the contract, Martin Reuben, to base his composite in part on Curtis’ photographs.
This is where where things started to go sour for the not-yet-existent General Dynamics ad campaign, and General Dynamics wasn’t even aware of any of it.
The court found the composite images were too similar to Curtis’ original works, held the images to be a violation of Curtis’ copyright, and found General Dynamics’ vicariously liable for contributory copyright infringement.
Keep in mind the images at issue in Curtis were not the actual images created by the plaintiff—just images that looked too similar to his work, in the context of a composite. If General Dynamics couldn’t beat Curtis’ claims given the facts of that case, even being twice-removed from the actual offending act, how successful do you think your “Sorry. It was a rogue designer, your honor” excuse is going to be in court?
Granted, the facts of every case are bound to be different, and we don’t know all of the facts surrounding how Marr’s pictures wound up in the ad in question. Assuming she’s telling the story straight, though, whatever adult dating site this ad pertained to might be in for a bit of rough treatment at the hands of a rightfully irate young woman—and more to the point, her rightfully aggressive attorney.
The moral of the story has little to do with law and a lot to do with a more fundamental reason for due diligence when it comes to design work used to promote and represent your company: Using someone’s images and likeness without their permission is just a shitty thing to do.
Frankly, if you need to be sued in order to exercise due caution with respect to the use of third-party images in your ads and designs, then you probably deserve to be hit with the full force of the massive book the court will throw at you.
