When controversial titles go wrong

#1 I think that if you take a topless photo of a minor and then sell it in a game without their knowledge or consent... man, thats just asking for trouble.

#2 First off she's CLAIMING she didn't give consent, which she very well might have. The fact that she was seventeen negates the legality of the consent. You also have to take into consideration that video and photo's taking IN PUBLIC are legal public domain and that if the girl was 17 and naked on a US beach then she was also in violation of the law as are the people she accused. Also, I find it funny that she is so "Hurt, humiliated, and offended" because she wants to remain active in her "Church" but yet she willingly gave the video or photographic footage according to the developers. It won't be hard for a judge to determine if she was well aware of her situation and was a willing participant. Ultimately her photo's/video will have to be pulled from the game, but I have a feeling she's not going to get any damages settlement from this whole thing. And she might even end up charged with a crime because they have proof positive that she commited a crime. I think a backfire in her face would be fair and ironicly appropriate as well.

#3 For both parties, it would have been much less hassle to simply pay a model, huh?

#4 Gonzo, are you sure about the public law? I've seen situations where peoples faces where blurred out because they would not give consent to use them.
Sure maybe they could have used them anyway but maybe they didn't because of the legal ramifications.

Just because someone else is breaking a law, doesn't mean they don't win court cases.

For example, my friend Tony was chasing a kid in 7th grade. The kid runs into the mall and slams the door shut while my friend is taking a swing at him.

Tony ends up putting his hand through the glass and cutting an artery and almost died because of it.

The mall did nothing wrong. The glass was thick, but yet when Tony's mother sued the mall she won. They paid his medical and he ended up having a 50k bond for him, waiting till he turned 21.

He was the one breaking the law. He was attacking that kid. The kid was protecting himself. Yet the court ruled in his favor.

As far as consent goes. If they want to people to participate, then generaly people sign off on a waver of some sort. To protect themselves against something like this.

If you ask me, it was stupid on there behalf. I work in a business that deals with adult material at times and you would not believe the measures taken to prove someones age. It was careless and I would not be suprised if they lost the case

#5 Release forms are your friends.

Making use of public places is a sticky business. If no one is the current focus (say a beach full of people with no one person more prominent than another), then you're pretty much golden. If anyone is the current focus, then consent must be obtained. At least that's how I understood most of the filmmaking laws (which differ from state to state and county to county, so speak to your state film commission).

But if you get likeness releases, then you're good to go.

#6 I think 'Public Domain' is a little bit of a misnomer, too, since it implies the photos/video don't have an enforceable copyright. They do.

As for the rest of it, The google phrase in this instance is 'Right of publicity' - that's the right to prevent commercial exploitation of your name or likeness.

As David says, it varies a lot from state to state, and in general it's a pretty weak right - very tough to win cases with.

Celebrities occasionally use it against papers like the Enquirer.

#7 Well, Gonzo is pretty much right about the video/pic in public thing. The problem is that people can still sue, and release forms are used to blunt any trial attempts(which usually cost the defendant huge sums, while the plantiff's lawyer works on a commision of damages awarded, usually around 30% or so- which is why lawyers volunteer to win these huge class action suits for asbestos and stuff).

All I have to say about this is that between how they handled this and how they tout themselves as the "Daniel Boone" of video games, I don't think they'll be around much longer... ;)

#8 Well...

I can't say I approve of the videogame. And it was stupid of them to not follow correct legal procedures for what they were doing.

It does make me nervous, though, because the Videogame industry is well-known now to be a really huge, multibillion-dollar-a-year business, and there's not a lawsuit attorney alive who wouldn't love to get a piece of that action. And don't give them too much credit for being smart enough to tell the difference between a megacorp like Sony and a little indie developer who works as an assistant manager of a McDonalds during the day to pay for his game development efforts when they start thinking about lawsuits.

Cover thine butt.

#9 I am personally awaiting the counter-suit t at will see her (or her family) get sued for an even bigger sum of money for her breech of contract and lieing on a legal contract when she agreed to be a part of this project. I am sure that the game companies will get the last laugh her at expense since she is trying to play hard ball with the big leagues.

Logan

#10 Sense of focus is a huge matter of interpretation as well. If you're scanning a bunch of people in a park as your background footage and no one really seems to be the focus other than your actors, you may seem like everything's perfect. If there's a really fat woman in a tank-top and shorts in the background, you're audience may clue into that and focus on her even if you didn't notice or care that she was there. Suddenly you get to debate a highly subjective focus issue. You may have not intended to have a focal point that does indeed exist to "common" eyes. Much of it comes down to intent, though. If you have the park setting with the large woman in the background and you principle actors are talking about fat ex-girlfriends, it could easily be seen as intentional and detrimental to the background woman's character. By simply placing a bad frame, you're pushing focus to her.

Arguing a case about intent where you're making money off of underage nudity would be rather difficult, though. Arguing focus in such a case would be difficult as well.

Unfortunately, a lot of the law is extremely subjective in this area. Hollywood errs on the side of safety and unleashes hoardes or people to get extras to sign consent forms or shoo away people who won't sign. They also work with the city in question to have legal justification to clear the area. Indies, unfortunately, don't have the same power or influence (or money), so we have to get by as best we can. But taking ten minutes to throw out release forms to everyone in the park can save your ass, and Kinkos is a lot cheaper than possible complaints in the future.

#11

Quote:I am personally awaiting the counter-suit t at will see her (or her family) get sued for an even bigger sum of money for her breech of contract and lieing on a legal contract when she agreed to be a part of this project.

I doubt that that's going to happen, since she's underage and can't sign a contract, much less be held accountable for lying on one. What I'm waiting for is both the developer and her to get hit with charges of distributing child porn, which is what this ultimately turns out to be with her being underage. I read an article about an underage girl who sent a naked picture of herself over the 'net to someone, got caught, and then got charged with distributing child porn, even though she was the subject of the picture that she distributed. It may not be a direct parallel, but it's close enough for both parties to be scared(if they had brains, which I highly doubt).

Pretty sure that the developer's intention wasn't anywhere near that, and she is probably waging the suit because her parents found out somehow and flipped, but the courts still look dimly on it. This might get uglier for all parties before it's over with, and the only possible saving grace I can think of for this case is that she was in public when it happened, and they can't charge everyone in the crowd for looking, and that can be used to mitigate the charge. But still, there's probably a risk of this charge being leveled by the state...

#12 It would be interesting to know if the developers documented proof of age. It's standard practice, but who knows if they did so.

If she provided fake ID, didn't she commit fraud? If the developers checked for ID, how does this effect the case against them?

#13

Quote:Gonzo, are you sure about the public law?

I'm not a legal attorney but I'm pretty sure based on the fact that i've read numerous reports about people suing because they were caught naked and put on the web without their consent. In all cases that I've reviewed so far they all lost their case because it was determined that they exposed themselves in public and any photos/videos taken in public are "Public Domain" and therefore not subject to normal image rights that one would have had they posed in a private situation and been exploited without consent. Take Girls Gone Wild for example. They make a fortune off naked girls without having to pay them jack squat. Catching them exposed at Daytona or Mardi gras is nothing more than free footage they can legally sell as long as the exposed girls are 18 or older. Now if they take a girl onto their private bus and photograph her then they have to obtain consent and possibly pay her if she demands it before consenting because they are taking photos in a private situation and not public.

Also note that even big stars do not get special treatment for public domain. A recent case that illustrates that perfectly came when Barbara Streisand tried to sue a company for 10 million and ended up being thrown out of court and being ordered to pay the people she sued $177,107.54 for the trouble she caused them....

www.californiacoastline.org/streisand/lawsuit.html

Quote:since she's underage and can't sign a contract, much less be held accountable for lying on one.

I'm not so sure that is correct. Anyone can be held responsible for damages to a buisness, property, or personel. Although it would ultimately be a burdon the parents of the teen have to swallow, someone(even underaged) can be sued for lying on a contract. Although I would agree that in this case the publisher was negligent for not verifying the age with even the most basic of state issued identifications such as an ID card or drivers license and ultimately would probably lose on the issue for that reason. If she had a fake ID that she gave them and they have a photocopy of it, then she would lose in a heartbeat and her parents would be forced to pay the resulting judgement. Keep in mind this is all speculative in relations to what evidence is available in this case. We'll certainly learn more over time.

Quote:I think 'Public Domain' is a little bit of a misnomer, too, since it implies the photos/video don't have an enforceable copyright. They do.

Only in RARE situations do they have rights when it comes to a public photo. 99% of photos and video taken in public are immune to such frivilous suits. I personally have been on TV twice and in both cases it was in public and by the local news stations, and I can tell you for a fact that not only did I not have to sign a release, I was never even asked for permission to use my interviews. As best I cant tell they were using the simple fact that I stopped and talked on camera as all the consent they needed from me.

#14 Let me clarify: 'Public Domain' is a fairly specific term that refers to copyright law. Since we're not talking about copyright law, it's not a good term to use, and is misleading.

Better?

#15 "For any commercial use of photography (not generally for photojournalism) signed model releases are essential for pictures of people."

"Any publication of nude pictures without proof of permission would almost certainly be viewed as a 'defamation of character' that could leave you open to heavy damage claims."

-- photography.about.com/od/legalissues/


EDIT --

She was in a public place, but the photos taken are explicitly for commercial use. This is not the same as being on TV or having your picture in the newspaper.

She was underage when the picture was taken, supposedly.... plus, she didn't give permission, 'cause if she did, there would be a signed release. She probably had no clue what the picture was for... so I think, overall, she has every right to sue and win. Think about it, what if you were nude in a public place for whatever reason... would you want someone to come take pictures of you without permission and then put it in a game and sell it commercially? Probably not.

#16 News and documentaries have very different rules than entertainment when it comes to likeness rights.

#17 She was underage when the picture was taken, supposedly.... plus, she didn't give permission, 'cause if she did, there would be a signed release. She probably had no clue what the picture was for... so I think, overall, she has every right to sue and win.
There was a signed release, but she's claiming it's not valid because she was under-age. Based on a quick view of the game's web site, it is very likely she knew how it would be used.

Think about it, what if you were nude in a public place for whatever reason... would you want someone to come take pictures of you without permission and then put it in a game and sell it commercially?
But they had permission and she likely knew what it was for. I don't recall seeing anything saying whether or not she received any payment for it.

#18 From the article:
"Plaintiff is still a teenager and wishes to attend college, develop her career and be active in her community and church," the lawsuit said.


So she made a bad decision while partying on Spring Break and is not able to deal with the results of her decision. Obviously *someone* has to be sued because these days no one should ever take responsibility for their actions.

#19 Ken Paulson: Amen!

#20 Can't a girl party during spring break, take her top off, and not have to worry about ppl taking her picture and using it in a pervert game? :/

So you're saying... if you're gonna take your top off, you have to live with the consequences of that, whatever they may be... i see, fair enough, i guess. :)