I’ve mentioned previously the importance of model and property releases for commercial work. These releases are contracts and as important as that is for legal protection, they also help all involved manage expectations over how an image will be used.
So how important are these releases? Just ask Chipotle.
Last week I read a report that a woman is suing the chain for $2.2 Billion because they used a photo of her without her permission to promote their restaurants. She is suing for all of their reported profits earned while the photograph was used from 2006 through 2016 (she plans to amend the amount once the 2016 numbers are made public).
It seems that Ms. Caldwell was eating at Chipotle in 2006 when photographer Steve Adams was making photos for the chain. Upon leaving the store, Mr. Adams asked her to sign a model release for the image, but she refused (as was her right). Adams showed the image to his client (presumably alerting them to the fact that he did not have a model release) and they selected it for their campaign. The final image was a composite, in which an adult beverage was added, and it was used in advertising material around the country from 2006 onward. It is Caldwell’s claim that she only became aware of the use in 2014. Since that time, she’s noticed the image repeatedly through multiple markets.
If the facts of the claim are true, Chipotle will almost certainly settle with Ms. Caldwell. That said, it seems doubtful that they will settle for anywhere near the full claim amount because it is unreasonable to argue that the one image alone was fully responsible for the company’s profits during that period. If the facts are correct, then Chipotle (not to mention Mr. Adams) really ought to have known better. An image where a person is recognizable simply cannot be used for commercial use without that person’s expressed consent, and as with all business agreements, that consent needs to be in the form of a legal contract. In our industry, that contract is known as a model release.
While it isn’t a surprise that Ms. Caldwell has chosen to pursue a claim against the company with deep pockets, Adams isn’t necessarily off the hook for damages. Whether or not he and his company are liable probably depends on the details of the written contract (which would include a usage license) between him as the licensor and Chipotle as the licensee. If he falsely claimed that he had releases for all images, then he’s definitely in trouble not only from Caldwell, but from Chipotle as well. On the other hand, if he was transparent about which images had (or more importantly, did not have) releases, then he probably will not share any liability for the incorrect usage. That isn’t to say that Ms. Caldwell might not make his life pretty uncomfortable, just that he’d probably win a claim brought against him if brought to court.
The bottom line is that photographers always need to get signed releases for commercial uses, and if that isn’t possible, they should NEVER share those photos with their clients. There can be no good to come from a photographer showing a client the ‘best shot’ of the shoot if the image cannot be used for the purpose for which they were hired.