Monday, October 28, 2013
Aspiring models, be warned.
Now that the initial launch of the federal "ObamaCare" website has been declared an unmitigated logistical disaster, an odd intellectual property issue has been mentioned by bloggers and political pundits: the rights of the models depicted in the stock photography used on the site.
When HealthCare.gov launched live on October 1, tens of millions of Americans visited the site to view an ethnically ambiguous, attractive 20-something woman smiling back, promising affordable health care. "ObamaCare Girl" is precisely the target demographic that the administration is hoping sign up for health care.
Fox News called the smiling woman depicted in the stock photograph "mysterious," writing that "she smiles back at countless frustrated Americans as they tried to log onto the ObamaCare website." The Washington Times dubbed her "Glitch Girl," and created a pseudo-mystery around her identity.
Since its launch, the website has crashed repeatedly, leading Congressional leaders to demand an accounting for the $300M dollars that have been spent on the website so far, given that few applicants have been satisfactorily able to sign up through the portal.
The unknown model whose face was used on the site may not be pleased with the newfound notoriety, but may have no legal recourse.
"Stock" photography is offered commercially by a wide variety of sources, such as Getty Images, Corbis, iStockPhoto.com and ShutterStock.com. For an appropriate license fee, any user can easily download and use stock images for a variety of applications, including blogs and websites.
When objects depicted in the stock images are inanimate, the only release that is secured by the distributor is a license or assignment from the photographer. Photographers are paid a scaled fee based on, among other things, the number of times that their images are downloaded and used.
However, when models are used in the images, the photographer typically secures a standard "release," which grants the licensees (including the distributors and end users) the right to pretty much plaster the image all over their websites and blogs.
The models essentially agree to release any claims that they might otherwise have for invasion of privacy, or appropriation of likeness under states' laws, in exchange for a nominal sum received from the photographer. In most cases, amateur models are paid very little to nothing per image, and give up all rights to control how their likenesses are used.
In the case of the anonymous woman whose face ended up appearing on a website viewed by millions of annoyed Americans, that notoriety might have been more than she bargained for.
The New York Daily News has noted that the image of ObamaCare Girl has now been removed, only to be replaced by stale graphics.