Getty Images Can Use Chi-Lites Image to Promote the Sale of its Images


When a person feels that they have been wronged and seeks redress, there is sometimes debate as to which person or entity is really responsible. In a recent case against Getty Images (US) Inc., the judge agreed that the defendant had been wronged, not by the company being sued.

Marshall Thompson is the only surviving original member of the Chi-Lites, a rhythm-and-blues group from Chicago. Thompson filed a lawsuit against Getty Images for allegedly profiting from his likeness without having first obtained his permission.

The U.S. District judge, Matthew F. Kennelly, dismissed the lawsuit but he did give Thompson a few days to file an amended complaint.

In the original complaint, Thompson alleges that Getty Images violated the Illinois Right of Publicity Act (IRPA), which prohibits the use of an individual’s identity without that person’s written permission. According to the complaint, Getty Images violated the IRPA when it posted several images of Thompson online and offered to license them to customers.

In his written opinion on the case, Judge Kennelly pointed out that Getty Images’ website stated that the pictures of Thompson were to be licensed “for editorial use only”. Such a restriction would require customers who obtained licenses for the pictures to also obtain the appropriate rights and clearances before using the images for commercial purposes.

Such language absolves Getty Images from responsibility if one of its customers used the pictures for commercial purposes without first obtaining Thompson’s written permission to do so. In his opinion, Judge Kennelly maintains that, according to “Thompson’s theory, liability would attach to a photographer who licensed his photograph to a publication that then printed the photograph for a commercial purpose”. The judge concluded that this “is not a reasonable interpretation of the statute, as it would extend liability much too far and chill speech protected by the First Amendment.” This is an example of the fact that, when considering whether or not a law has been breached, judges must also take into account how their decision might impact other laws and statutes already in existence.

Judge Kennelly further rejected the argument that Getty Images had violated IRPA by using the photos to promote the sale of a product (that product being the photos themselves) without Thompson’s permission. Judge Kennelly concluded that IRPA only extended so far as to prohibit the use of a person’s image to promote another product. However he ruled promoting the sale of the photograph itself is not covered under IRPA.

In his written opinion, Kennelly noted a similar case in which a stock photography library had used the image of the late musician, James Brown, to sell a product. Brown’s estate had then stated a claim under IRPA and the Illinois Appellate Court had sided with the estate. Judge Kennelly admits that the decision reached by the court in that case was “arguably contrary” to his own ruling. However, he also noted that he found the Illinois Appellate Court’s ruling “unpersuasive” and believed that, should the case get so far, the Illinois Supreme Court would agree with his view of the law.

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