How Bralzilian woman got on Budapest posters?

free stock photos made an interesting legal scandal

Hungarion version

Poster of Hungarian State Opera’s Christian Season
Photographer unknown
Source: Hungarian State Opera House

Copyright and personal rights aspects are also interesting and important in this story the Hungarian State Opera House got into drawing photo theft accusations.
The Brazil resident Turkish face of their newest campaign  accuses them with unauthorised use of her image. The institute defends itself claiming they have the permission to use the photo from a stock site. The situation is however more complex and unclear.

Background story
Based on the Portugese news site Extra some Hungarian news sites like 24.hu, Index and HVG wrote about the photo theft story of the Opera House. Unfortunately some of these sites never did publish the Opera’s response despite it’s additional angle on the story. However it still doesn’t clear up the situation entirely.
The articles quote the Turkis woman living in Brazil used as the face of the campaign. She was surprised to be informed by a tourist friend visiting Budapest her face appeared on a series of posters around the city. The subject of the photo thought her picture was grabbed from her Facebook profile and she plans to make legal demands for the rights breach to use her photo without proper permissions.

Opera denies responsibilty
In their response to 24.hu and Index the State Opera tells the award winning agency designing their creatives used a free to use picture from community stock photo site Pexels.com. The institute claims they didn’t make any mistake. They think probably the mistake was made by the person uploading the photo to the stock photo site. They support their position with the fact of the photo and the photographer’s account being deleted from the site since. The articles quote their statement, “Hungarian State Opera House received no legal complaints in regards to the photo, but based on the facts above any such claim would be unfounded”.
Their short and confident denial could be included in my collection of basless excuuses of photo thieves. Of course if I would start uploading their photos to a free photo sharing site (totally illegally of course) they would quickly change their stance about how much this argument overwrites the original photo rights and need of permissions.

The situation is more complicated
To use a photo legally everyone needs the permission of the copyright holder. By default the copyright holder is the creator of the photo. If there is a recognisable person on the photo then the permission of the photographer is still necessary, but not enough in itself. In such cases the permission of the identifiable person is also required to rightfully use the image.
Strictness of the need for a model release varies depending on countries and situations. In many countries for example photos taken in the public don’t require permission form persons on the photos (of course it won’t hurt to have one even if not mandatory). However there is total unity in regulations across the globe: for commercial and advertising purposes it is always mandatory to have the model release from the person in the photo in addition to the photo. Without a model release noone can use a photo for commercial use.

Original and poster photo
Left: Elif Ozer’s original Facebook photo
Right: Opera advertisement
Source: Extra.globo.com

The situation gets further complicated by the fact the photo is not only published by the Opera, but they also changed it. They added a religious symbol to it. Earring of the model was replaced to a cricifix. It may seem to be a harmless change, right? Religion is however very important to many people (in theory to the Hungarian State Opera too who advertises it’s Crhistian season with the poster in question) it is a very important ideological matter. To use a photo in an altered context like this can be harmful for people with a different ideology. (In a reversed situation what would Christian people say if their photos would be changed to show them to appear as muslims or atheists without their knowledge or consent for an ad campaign?) In such sensitive situations it is much needed, but at least very much suggested to have the model release for the specific use. Just like in the case where the stock photo of a model is used to show her being AIDS positve. This also makes it very important to carefully read and consider details of each contract before signing them.

One single photo destroyed her life
Click the image for more details!

Middlemen require more attention
If a middlemen grant permissions for photo usage (like an agency or stock website), then they should provide the required permissions from the photographer and the model as well.
More serious photo agencies do it. They include the model release (and also the property releases for products and trademarks in the pictures, but it is not connected to this story). Serious stock agencies require photographers to submit the model releases along with images. In case there is no model or property release for an image that would require one they either don’t publish it, or some may make them available with a warning to users to make an informed decision about the possible need of such a release and to allow them consider the dangers and legal consequences of not having one.

Be warned about unkonwn sites
There are an ever growing number of websites offering cheap or totally free photos with “unlimited” licences. However these sites not always perform their well intended operation with the needed attention. One of the reasons is they don’t charge anything thus they don’t have funds to perform any legality checking and filtering of their content. On a site where anyone can freely upload any photos they want to share any user can upload even copyright protected photos of others – and the fact they do upload photos to such a site doesn’t qualify a legally binding permission to be able to freely use it as the uploader can make an invalid legal statement.

This makes it the interest of the users to get photos with well documented permissions with commercial uses, especially when it is about the choice of face for advertising for a serious institute’s expensive ad campaign. Not only because it is embarrassing to use free photos for an ad campaign worth millions. More so because it can be dangerous legally.

Pixabay terms waive liability
“Please be aware that depicted items in the Images such as identifiable people may be subject to additional copyrights, property rights, privacy rights, trademarks etc. and may require the consent of a third party or the license of these rights – particularly for commercial applications. Pixabay does not represent or warrant that such consents or licenses have been obtained, and expressly disclaims any liability in this respect.”

Pixabay waives liability
To make it clear this is not just my opinion. The site in this story Pixabay terms of use make it clear that photos with identifiable people on them may need additional permissions not granted by the site. They even emphasize it in their terms this is especially true for commercial uses. You find their exact wording on and below the image to the left.

Always read contracts carefully before signing them!
Click image for details!

Who is responsible?
In such a legal case court would hardly accept the reasoning “we downloaded the photo from this site, but by now it was deelted”. Even if the site tells you have permission to use the photo for free after it was downloaded from the site. In this case you not only don’t have a permission but you cannot even prove that the photo was ever listed on the site to allow downloading it.
Hungarian State Opera House, their ad agency, creative studio and the stock site now may point to each other to pass on liability. However in a court case the contracts between the parties (and their liability waivers) will decide who will have to compensate for damages. It will be an interesting procedure to unravel who is the last ink in the chain of liability waivers who cannot pass on responsibility for others.

A free photo can be expensive
Either there will be a court case or it stops at the current level of articles written from partial informations, the Opera House already lost quite some of it’s reputation because they got into such a photo theft story. Even if they published a statement to shed better light on the institute that didn’t reach everyone who read the bad news about them. If they have to go to court they may loose even more of their prestige and they may even face financial losses too. It is worth to consider how much a free photo is worth for a company?

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