Wednesday, September 19, 2007
Farmer files lawsuit over use of his picture
The complaint seeks $7.5 million in damages from the photographers and the companies that used the image.
Courtesy of Roanoke County Circuit Court
Botetourt County farmer Andrew Marsinko says this photo of him was used on a birthday card without his permission.
Andrew Marsinko didn't know that a photo taken of him with a goose had been used in a slightly naughty birthday card until complete strangers started poking fun at him.
Now the Botetourt County poultry farmer has responded with a lawsuit intended to cook the goose of everyone involved.
The complaint filed in Roanoke County Circuit Court seeks $7.5 million in damages from the photographers who took the photo, the companies that offered the photo as a stock image and the companies that created and sold the card.
The central issue revolves around whether Marsinko signed a release allowing his photo to be used for commercial purposes. In the lawsuit, he says he didn't.
"That's not something you want to wake up and find out's been done," said Roanoke lawyer David Harrison who represents Marsinko.
The front of the card features Marsinko in a cowboy hat holding a goose on one knee, with a balloon that reads, "Since it's your birthday, you decide -- Would you rather get spanked ..." The inside reads, "Or goosed? Happy birthday!"
Lawsuits disputing whether someone signed a release to allow the use of his or her image are not uncommon, said Nancy Wolff, a New York lawyer who specializes in copyright issues. "I've even had signed releases where the model says, 'That's not my signature.' "
Laws that articulate a right not to have one's image exploited vary from state to state. In Virginia, using an image for advertising or trade requires a signed release.
Marsinko's situation is different from that of a subject whose photo is taken for a newspaper. "It wasn't a newsworthy event and they didn't have his permission," Harrison said.
In the realm of people fighting to keep control of their images, Marsinko has some high-profile company. Earlier this month, celebrity heiress Paris Hilton filed a federal lawsuit suing greeting card giant Hallmark for $500,000, saying her privacy was invaded by a card that depicts her as a waitress.
For his part, Marsinko has national credentials in the poultry industry. He's been included in the American Poultry Association's Exhibitor's Hall of Fame and serves as the northeast director of the International Waterfowl Breeders Association.
The portrait was taken at the 1996 State Fair of Virginia by Washington, D.C., photographer John Burwell, who had been hired to take promotional photos for the fair.
The lawsuit accuses Burwell and his wife of selling Marsinko's image to Jupitermedia Corp., a stock image provider, without his permission. The image eventually wound up on a card sold by Boulder, Colo., company Leanin' Tree Inc., according to the suit.
In 2006, the card was sold throughout the United States and Canada, unbeknownst to Marsinko until he attended an animal auction in Mount Hope, Ohio, where people ribbed him. According to the suit, one person asked him, "When did you give up women to hug a goose?"
On Sept. 19, 2006, a friend of Marsinko's who runs a feed store showed him the card with his image on it. He contacted Leanin' Tree, which contacted Getty Images Inc., which had purchased the rights to the image from Jupitermedia. Getty Images asserted that Marsinko had signed a release authorizing the image's use, which Marsinko says in the lawsuit is not true.
Throughout the rest of the year, as Marsinko traveled to auctions and livestock shows across the country, strangers continued to poke fun. According to the suit, one person told him, "Good picture of the goose. Can't say much for you." Another asked him, "Were you really that stupid to put this card out?"
The lawsuit accuses the defendants, including the Burwells, Jupitermedia, Getty Images and Leanin' Tree, of defamation, unauthorized use of a picture, conspiracy and attempted conspiracy, and reckless infliction of emotional distress. The Burwells and Jupitermedia declined to comment. Officials with Getty Images and Leanin' Tree could not immediately be reached for comment Tuesday afternoon.
"Our investigation indicates that if any one of the defendants had acted responsibly, this harm would have been prevented," Harrison said. "It is our hope that there will be a significant court judgment against these defendants so that in the future, companies in the industry of supplying and using stock photographs on the Internet will know that misconduct has a cost."