portraiturebyBrent wrote:
It doesn't help that in the comments section of the story there's this post:

"I am a retired professional photographer. The issue here is "copyright" laws. The woman owns the copyright because the photographer never got a signed release from her."

Damn good thing a professional photographer chimed to set everybody straight on copyright laws.

LOL...yeah I saw that too.

portraiturebyBrent wrote:
It doesn't help that in the comments section of the story there's this post:

"I am a retired professional photographer. The issue here is "copyright" laws. The woman owns the copyright because the photographer never got a signed release from her."

Im sure he's a regular on MM.

portraiturebyBrent wrote:
It doesn't help that in the comments section of the story there's this post:

"I am a retired professional photographer. The issue here is "copyright" laws. The woman owns the copyright because the photographer never got a signed release from her."

Damn good thing a professional photographer chimed to set everybody straight on copyright laws.

Morons aplenty, it seems.

- The retired pro is a moron;
- The photographer is an unethical moron;
- Chipotle is/are unethical morons

portraiturebyBrent wrote:
It doesn't help that in the comments section of the story there's this post:

"I am a retired professional photographer. The issue here is "copyright" laws. The woman owns the copyright because the photographer never got a signed release from her."

Damn good thing a professional photographer chimed to set everybody straight on copyright laws.

Morons aplenty, it seems.

- The retired pro is a moron;
- The photographer is an unethical moron;
- Chipotle is/are unethical morons

portraiturebyBrent wrote:
It doesn't help that in the comments section of the story there's this post:

"I am a retired professional photographer. The issue here is "copyright" laws. The woman owns the copyright because the photographer never got a signed release from her."

Damn good thing a professional photographer chimed to set everybody straight on copyright laws.

Eagle Rock Photographer wrote:
Morons aplenty, it seems.

- The retired pro is a moron;
- The photographer is an unethical moron;
- Chipotle is/are unethical morons

50% of all the people are below average.

Fotopia wrote:
Reading comprehension  continues to be a major factor in the forum discussions.

Least of all, this discussion.

BTW, I did NOT read the above article, but I did read AN article on the matter that says her lawyer came up with the amount of the suit as his/her estimate of the total profits of the Restaurant chain for the period in question, and that the suit requests additional sums for profits between suit filing and resolution. Now I don't know that Colorado law supports damages to that extent, but the total sum is guaranteed to get just about anybody's attention, isn't it?

Michael DBA Expressions wrote:

Least of all, this discussion.

BTW, I did NOT read the above article, but I did read AN article on the matter that says her lawyer came up with the amount of the suit as his/her estimate of the total profits of the Restaurant chain for the period in question, and that the suit requests additional sums for profits between suit filing and resolution. Now I don't know that Colorado law supports damages to that extent, but the total sum is guaranteed to get just about anybody's attention, isn't it?

That must have been one of hell of a photo/model...

JQuest wrote:
Not quite sure why the photographer is being sued here. Can someone who actually knows explain why that would be? My understanding is that as the copyright holder of the image he can sell it if he wishes, and it would be up to the end user to then ensure that they had the correct usage rights for whatever purpose they wished to use it.

If the photographer misrepresented to Chipotle the usage rights when he sold it then it would seem Chipotle would have a suit against him, however that information isn't available in the article. So I fail to see how him taking a picture in a restaurant of a patron would make him culpable for that image that Chipotle obtained and then used commercially.

My legal knowledge is just above zero ... But I think that if she sued Chipotle, she can name him as a co-defendant.

I agree that even if he took the photo while she was in the bathroom, I still don't see how she could sue him directly - it seems all civil issues are with Chipotle.

But again ... Just above zero.

Zack Zoll wrote:
Yeah, it's not a 2 billion ruling. She can ask for whatever the heck she wants - the system has to treat the case he same way.

If anything, asking such an obscene amount will only serve to make a judge/jury think she's crazy before it even starts. I assume Chipotle is worth almost exactly 2 billion, and that's why she's asking that?

There are several reasons for asking huge amounts and several apply here.

Eagle Rock Photographer wrote:
It is expected that the shooter would be sued. Shooter and Chipotle will likely blame each other.

Depending on a hold harmless and indemnity clause of course, as well as any warrantee he offered them. That won't directly protect Chipotle but it could and would give them a cause of action against the snapper. Chances are, however, that, figuratively speaking, he doesn't have two dimes to rub together, so that makes the company the deep pockets defendant here.

The interesting feature of this is one that I have mentioned in discussions before on street shooting, to which this has some similarity. The photographer, as reported in this instance, actually asked for a release and was refused. That puts him in a different position vis a vis liability than if he had not asked at all.

I am still somewhat in the dark, as we all are, as to if the woman can establish any commercial value in her image in the first place much less justifying the amount she is asking for. The reason for the specific claim to do with the alcohol is also a curious one to be mentioned so prominently. it would be interesting to have a bit more insight into that.

Studio36

EDIT: As to the amount of the claim, this point was mentioned in a couple of on-line reports of this case, and is a probably correct assessment of what seems to be going on here: "Apparently Caldwell believes that a single picture of her is 100% responsible for all of the success of the restaurant." In a case such as this, even if she is successful, no court would entertain the amount she is asking for if it is the full profits figure for the period of time they used her image. The normal formula that is applied is that she would be entitled to something but that something would be limited by, and related only to, the amount of profit that she could prove was directly attributable to the use of her image. It is frankly going to be quite impossible to prove the 2.2Bn claimed amount in full.

EDIT 2: After giving this some thought I am also interested to know the context in which the image was used. Though the claim is that the use was "commercial use" the more pertinent and direct question might be was it in fact, and in reality, and importantly in law, a "commercial use"?. What other images, if any, were used alongside or with it? Was there any text associated with the usage, or endorsement attributed to the person(s) pictured? Was the use on a product, only on the web, in print, or just some or all of these ways, and in what context? And there are a number of other questions that come to mind as well. I see no obvious privacy implications in this but aside from the commercial appropriation claim, yet to be proven, was there something else in play such as an accusation of defamation or the revelation of private facts involved. In short this has a long long way to go yet.

studio36uk wrote:
It is frankly going to be quite impossible to prove the 2.2Bn claimed amount in full.

True but they are going to offer to settle for less than the amount in the suit so aiming high gives her attorney a better pay check in the end.

studio36uk wrote:
It is frankly going to be quite impossible to prove the 2.2Bn claimed amount in full.

NewBoldPhoto wrote:
True but they are going to offer to settle for less than the amount in the suit so aiming high gives her attorney a better pay check in the end.

Typically this will settle somewhere in 6 figures I would guess.

Studio36

Hunter  GWPB wrote:
There is no mention of this in the article, a conjectured reason for the added alcohol to be offensive, would be the possibility that she belongs to a religious organization that abstains from the use of alcoholic beverages.  Thus the photo connects her to alcohol.

One possibility, yes. That did spring to mind. It would be interesting to know the background to it. Whether it's that or something else. She could, for instance, possibly, also be someone with past issues with alcohol where such an image diminishes her or her reputation in the eyes of those who know her and of her history.

There are a number of possibilities here, I think.

Studio36

studio36uk wrote:
EDIT: As to the amount of the claim, this point was mentioned in a couple of on-line reports of this case, and is a probably correct assessment of what seems to be going on here: "Apparently Caldwell believes that a single picture of her is 100% responsible for all of the success of the restaurant." In a case such as this, even if she is successful, no court would entertain the amount she is asking for if it is the full profits figure for the period of time they used her image. The normal formula that is applied is that she would be entitled to something but that something would be limited by, and related only to, the amount of profit that she could prove was directly attributable to the use of her image. It is frankly going to be quite impossible to prove the 2.2Bn claimed amount in full.

I would like to believe (and kinda hope) that an experienced judge will see that $2B figure and would assume that the woman is just trying to get an outrageous payday.  I would think that many frivolous lawsuits start in a similar manner (I'm not saying that this particular case is frivolous -- the woman has some legitimate concerns).

Again, there's some critical information we are lacking:  did the photographer tell Chipotle that there was a model release?  Did the restaurant ask for one?  Did the photographer, in fact, license his photo to the restaurant?  etc.

Looknsee Photography wrote:
....
Again, there's some critical information we are lacking:  did the photographer tell Chipotle that there was a model release?  Did the restaurant ask for one?  Did the photographer, in fact, license his photo to the restaurant?  etc.

That's what I'm thinking too.

Did the photographer hand Chipotle a signed mode release which might have had her name forged on it by him?  If so, would Chipolte then be guilty since they are the deep pockets in this one?  This could happen to stock photo agencies too if photographers hand out falsified model releases.

Then there is the matter of who altered the shot to add the liquor?  if it was the photographer, double pinch?  Or did Chipolte alter his photo which would be a copyright matter separate from the model release unless he signed it over to them to do so?

Fwiw, I got stuck on a week long jury trial where some realtor took off with the guy's $200K loan deposit and built his own house with the guy's money.  Told the guy "His loan wasn't approved and the $200K was non-refundable being an out of region bank."  Guy sues scummy realtor guy.  They dropped the charges against the scummy realtor guy who stole the money while we we in deliberations.  Turns out the realty agency fired the guy, yet they had no paperwork saying they did so and we got the impression they were out the coin, and being deeper pockets too.  Never heard the outcome as we were "Thanked for our service, and you are all dismissed" by the judge.  Amazing.

Hunter  GWPB wrote:
There is no mention of this in the article, a conjectured reason for the added alcohol to be offensive, would be the possibility that she belongs to a religious organization that abstains from the use of alcoholic beverages.  Thus the photo connects her to alcohol.

Perceptive.

Zack Zoll wrote:
Yeah, it's not a 2 billion ruling. She can ask for whatever the heck she wants - the system has to treat the case he same way.

If anything, asking such an obscene amount will only serve to make a judge/jury think she's crazy before it even starts. I assume Chipotle is worth almost exactly 2 billion, and that's why she's asking that?

Chipotle made their profits public. She is claiming that they made 2.2 billion $ off her photo from 2006 to 2015. Which is the total sum of estimated profits. Pending even more money for 2016.

Zack Zoll wrote:
My legal knowledge is just above zero ... But I think that if she sued Chipotle, she can name him as a co-defendant.

I agree that even if he took the photo while she was in the bathroom, I still don't see how she could sue him directly - it seems all civil issues are with Chipotle.

But again ... Just above zero.

Chipotle is the one with money. It is ridiculous to sue someone for more than their net worth because you will never get the money.
In my experiences the publisher is ultimately responsible for any and all releases for the intended usage. Chipotle is the one who edited the photo to include alcohol. Chipotle is also responsible for making sure they have a release not the photographer. It is kind of a grey information but chipotle is claiming the photographer should have got a release when selling them the image. But wait they edited the photo which in my mind even if the photographer got a release Chipotle would have to get another release with the changes in it.

tcphoto wrote:
The model should have a payday but nowhere near $2.37B. If she didn't sign a Model Release and the image was used in a Commercial manner, both the photographer and Chipotle will likely pay proportionally. I will guess that it will be settled out of court for about .0001 or so of what she is asking.

She's a bit vulnerable to a fast settlement. I have looked at the list of filed documents in this case so far, though I've resisted the temptation to pay Pacer for full copies, and she has filed a request for a waver of the court fees pleading poverty to do so. This one has quick settlement written all over it.

Studio36

studio36uk wrote:

She's a bit vulnerable to a fast settlement. I have looked at the list of filed documents in this case so far, though I've resisted the temptation to pay Pacer for full copies, and she has filed a request for a waver of the court fees pleading poverty to do so. This one has quick settlement written all over it.

Studio36

She is looking for quick money!

studio36uk wrote:

She's a bit vulnerable to a fast settlement. I have looked at the list of filed documents in this case so far, though I've resisted the temptation to pay Pacer for full copies, and she has filed a request for a waver of the court fees pleading poverty to do so. This one has quick settlement written all over it.
Studio36

And you can expect the settlement to be confidential.

studio36uk wrote:
She's a bit vulnerable to a fast settlement. I have looked at the list of filed documents in this case so far, though I've resisted the temptation to pay Pacer for full copies, and she has filed a request for a waver of the court fees pleading poverty to do so. This one has quick settlement written all over it.
Studio36

Eagle Rock Photographer wrote:
And you can expect the settlement to be confidential.

That is a given.

Studio36

Caitin Bre  wrote:
But wait they edited the photo which in my mind even if the photographer got a release Chipotle would have to get another release with the changes in it.

A good release would say the model has no right to even see the finished product and her image can be manipulated etc...

studio36uk wrote:
Caldwell is reportedly representing herself in the suit.

"Leah Caldwell’s lawsuit, filed on Dec. 27 in U.S. District Court, alleges that Chipotle Photoshopped her image and added bottles of alcohol in the photograph.

Caldwell said, she saw a photo of herself in a Chipotle restaurant in Florida. The photograph, according to the complaint, was hanging on a wall inside the Orlando eatery on Dec. 21, 2014.

In California, the statute of limitation in publicity-rights cases is two years, so she might not be able to pursue this case because she first noticed the image in 2014, said attorney Douglas Mirell, who represents high-profile celebrities in image-use cases.

She would also need to show that a percentage of Chipotle’s earnings were directly attributed to her image."