I Don't Get It, I Never Will Get It, And Apparently I'll Never Be An Artist

I am following with moderate interest www.aphotostudent.com, the blog of one James Pomerantz, a student in the MFA (Photography) program at the School of Visual Arts in New York. My interest is moderated not by any failing of Mr. Pomerantz - who writes well and obviously cares very much about photography - but rather because it is mainly about being a student in a modern fine arts program and, well, "modern," "fine," and "art" to me largely comprise a tripartite oxymoron.

Here's his latest entry:

Roger Ballen in Conversation with Darius Himes Monday November 9th, 7pm

As might be apparent it is about an event where in a modern fine art photographer will be discussing his work with someone. In this case Roger Ballen, the photographer, will be publicly discussing his work with Darius Himes, an editor at an art press. It should be noted that both are quite successful in their respective fields, with Ballen having had a book recently accepted for publication by Phaidon Press and Himes being labeled as one of the 15 most influential people in photography publishing by PDN, the industry trade journal.

So why do I care?

Because if you read the post linked above, you will come across such gems as:

"His most recent work (to be published by Phaidon Press in the Spring of 2009) has pushed this further still, often eradicating the human figure altogether to create intense and loaded subjective spaces that produce intense arenas of disease."

What does that even mean? "Intense arenas of disease?" Used to describe black and white pictures of plates of apples and somebody's feet? (Said apples not being particularly unwholesome-looking, nor said feet particularly ravaged by pathology, just a bit grimy.) How much Kool-Aid do you have to drink to come up with that kind of stuff? Also, five demerits for multiple uses of the word "intense" in a single sentence. Somebody has Grammar Check turned off.

I hasten to add that Mr. Pomerantz did not write that - it was a quote from Robert Cook, Associate Curator of Contemporary Art, at the Art Gallery of Western Australia. And if I may wax stereotypical for a moment, how does somebody who can write things like that even survive to adulthood in Australia? Perhaps he's an immigrant. But I digress.

The point being, Mr. Ballen, who is certainly a fine technical photographer and beyond question more experienced and able than I, chooses to use his skills to produce things like photographs of people who look a little genetically questionable wearing scrap wire helmets and holding cats. And for this, he is celebrated, nay, lionized, in much the same way that Michelangelo or Bach might have been in an earlier, less sophisticated time. (Or, to tip the con, much the same way that Picasso or Pollack were not so very long ago.)

Now, here's the thing. I am well aware that a metaphor can be framed in almost any fashion. But if you do not use contextual elements to anchor the metaphor, you are not framing a metaphor, you are throwing things at the wall and hoping something sticks. To impose my own unsophisticated metaphor on the situation, any intelligent preschool child can tell you that if you have to explain a joke, it's not funny. Granted there are many things I might find funny (or insightful) that a preschool child would not. It's entirely possible that I am but a Preschooler of Art. But if so, that is a mighty high bar to set: I have two college degrees, a postgraduate degree, am ridiculously well read and altogether too clever by half, and I still look at most of these things and say, "Yes? And?"

I can go from dirty feet with apples to "arenas of disease," with a little prodding. But I can just as easily go from dirty feet with apples to "the dignity of poverty in epicurean repose." It's the Emperor's New Art: "Only a foolish person cannot see the idea inherent in the work!" Well, human beings are really smart and really good at rationalizing, so there's no pile of dreck that can't have some meaning tormented out of it ex post facto. However, at that point "art" becomes deliberate obfuscation: if you want to tell me something, use symbols we both associate with the basic concept you are trying to discuss. Making up new words when there is already a perfectly good word that means exactly what you are trying to say is pretentious at best and dictatorial at worst.

Now, that doesn't meant that abstraction or surrealism can't be perfectly valid artistic metaphors. One could create an "arena of disease" with a photograph showing nothing but smiley, happy people sitting round, say, a dinner table on which a young child has been laid out as the main course. (*eyes up and to the left*) But the key to such communication is the discontinuity. A picture of a feeble-minded person wearing a scrap-wire helmet and holding a cat is nothing but discontinuity. Other than, "The world is a strange place, innit?" it does not consistently communicate anything in a common symbology. (Not that that's not a valid observation, but it never stops there.)

I have Mr. Pomerantz's blog on my bloglist, but I tend to save up and read it every week or two rather than daily (he doesn't post daily, but I don't read as often as he posts.) This is because I have to be in the right headspace to deal with the topics that he discusses. Again, this is no disrespect to Mr. Pomerantz, who appears at times to have a bit of fish-out-of-water feeling about the process himself and who chronicles it with integrity and merit. In my normal mindset, as soon as such is put in front of me, I merely dismiss it with boredom. I need to be a little introspective - at least willing to grant the benefit of the doubt. So far the benefits are unclaimed, but from time to time it is good to stretch one's mind even on topics one finds intrinsically suspect.

M More after the jump - click here!

It Really Is A Shame

Here is a link to a post on the Copyright Action forum called, "The Real Cost of Being Sued By Getty [Images]."

http://copyrightaction.com/forum/the-real-cost-of-being-sued-by-getty

A small company used one unlicensed image "about the size of a postage stamp" on its website. Getty sent them a bill for unlicensed usage for £1,700 (the image could probably have been licensed for a tenth of that, or a similar image licensed royalty-free for a hundredth of it.)

They relied on advice from "experienced business people," Internet lawyerin', and all the old tired arguments we hear when such issues are discussed 'mongst the crowd.

Net result?

They paid the license fee, they paid lawyers, and they paid Getty's legal bills. They won't disclose the final amount but it is surely north of £25,000, or roughly Forty Thousand US dollars.

It was a small company, the error was inadvertent (and made by a third party web developer) and... it cost them a significant portion of their operating revenue. It could very well end up bankrupting them. Not to mention the enormous stress it placed on multiple employees of the firm as well as diverting time and resources from operation of the business.

Bottom line?

If it isn't yours, don't take it.

If you do, and somebody calls you on it, 'fess up, pay up, and move on. If you admit fault (when you're clearly caught) and offer to negotiate, they'll probably work with you. Start relying on Internet Lawyerin', and, well, you end up where these poor folks did. And that doesn't really help anybody.

M More after the jump - click here!

Little Ways to Change the World

Today I read the obituary of one Marty Forscher, a repairman.

Of course, I read it in the New York Times.

Why was a repairman memoralized in the Gray Lady?

Here's why...

Mr. Forscher opened a professional camera repair shop in New York City right after the Second World War. He had been working on cameras to make money before the war, and during it worked in the Navy photography shop (run by the famed Edward Steichen!)

Mr. Forscher was a native genius and inventor - see the obituary for a small sampling of examples - but in the 1960's, he started collecting discarded cameras from magazines, fixing them, and sending them to aspiring photojournalists in the South for use in documenting the Civil Rights movement. When they were soaked by fire hoses, or smashed by police, he would fix them right up and send them right back. The images produced by the cameras were published all over the world.

The pen is mightier than the sword, but the camera is also a fearsome weapon for truth: by arming these men and women, Mr. Forscher played a small but vital role in their dangerous work. As the evil and the furtive have been learning since Leopold's day, the evil that flourishes in darkness and ignorance will not survive the light. Well done, Mr. Forscher, well done.

See: http://www.nytimes.com/2009/10/11/nyregion/11forscher.html?_r=1&ref=obituaries

Link courtesy of James Pomerantz at http://www.aphotostudent.com/.

M More after the jump - click here!

Licenses, Releases, Copyrights and Contracts: Let's Review

I get a lot of emails about model releases and various confusions about what they are. Herein, a brief refresher on the four Intellectual Property issues that are of the most importance to photographers, models, and other people in the industry.

Please be advised that while I am a licensed and experienced intellectual property attorney (I have been admitted to the bar of the state of Illinois, the Northern District of the Illinois Federal Circuit Court, and to practice before the United States Patent and Trademark Office, as well as appearances before the United States Copyright Office) I may or may not be licensed to practice in any jurisdiction where the reader may reside or have business, and nothing herein is meant to constitute specific legal advice. Always consult a lawyer licensed in your jurisdiction and familiar with the relevant law before making legal decisions.

There are two sets of rights which may attach to any photograph showing a recognizable human being. The first we will collectively refer to as the right of publicity, although in some jurisdictions it is also referred to as the right of privacy, even though technically they are two different things. For purposes of our discussion, the right of publicity (or, for brevity, the RoP) is the right to control the use of your own likeness. This right belongs to the recognizable human being depicted, to whom we shall refer as the model. It is governed by state law.

The other right which may attach to the photograph is copyright. Copyright attaches to the photograph the moment is fixed in tangible form (including either a film negative or an electronic image file in a digital camera's memory.) It is granted by the Copyright Act in the United States, and by similar laws in other countries. In the US, the copyright belongs to the creator of the work. For a photograph, that's the person who pushed the shutter release, whom we shall call the photographer. It is governed by Federal law.

Copyright is the first of the four IP issues when dealing with the question of who may and may not use a photograph. Copyright trumps all other rights: if the holder of the copyright has not granted permission to make any particular use of the photograph, it is almost certainly unlawful to make such use. The oft-misunderstood doctrine of "Fair Use" will almost never apply to any matter relevant to our discussion. If a professional photographer took a picture of a professional model, almost no use the model could want to make of it is a Fair Use. Put it from your minds.

It is interesting to note that in Canada, if a model hires and pays a photographer to take pictures of them, the model owns the copyright. This is a very unusual rule. In the US, the photographer owns the copyright, even if the model is paying the photographer. The only exception would be if the photograph was a "work for hire," a very misleading term which requires far more than that the photographer is being paid. Again, in almost no situation you are likely to run across will the photograph be a work for hire. Put it from your minds.

So. The photographer has a copyright. The model has a right of publicity. They wish to allow each other to make various uses of photographs subject to these mutual rights. What to do?

If the photographer wants to use the model's likeness, he needs a release. A release is just permission to use someone's likeness in a way which otherwise they might be able to prevent as a breach of their right of publicity. Here is the text of the release that Norma Jeane Mortenson, later known as Marilyn Monroe, signed at her first session with the incomparable Bruno Bernard, greatest of the Hollywood glamour photographers:

"Release 7/24/46
I hereby permit Bernard of Hollywood to use the pictures he has taken of me for exhibition and commercial use.

Signature: /Norma Jeane Mortenson/"

With one minor exception, that release would stand up in court in any jurisdiction of which I am aware. You will note, however, that it does not say anything about payment, nor does Bernard's signature or any obligation or promise by Bernard appear. Why? Because a release is not a contract. A release is a release. A release can be consideration ("Consideration" is the legal word for "payment," but it does not mean the same thing as "money.") for a contract. A release can be included in a contract. But a release is not a contract, nor must a model receive any payment whatsoever for a release in the vast majority of cases. You give the permission, the permission is given. It should also be noted that unless the release contains limiting terms, such as a time limit, it is generally held as unlimited in time and space. Releases need to be written in many jurisdictions, but not all. When in doubt, releases should always be written.

Similarly, the photographer may give the model the right to use the copyrighted image for any particular purpose by granting the model a license. Here is the text I use to grant models a license to use photographs for their portfolios:

"I, Marc Whipple, by my signature below grant [MODEL] a license to use the copyrighted photographs I have provided for them on [DISC, EMAIL, ETC] for the purpose of self-promotion. The photographs may not be used for any commercial purpose other than promoting [MODEL]. This license shall be perpetual and throughout the world, but is not transferrable.

Signature: /Marc Whipple/"

You will notice again that this does not talk about money, nor does it require any promise from the model. Why? Because a license is not a contract. A license is a license. A license may be consideration for a contract. A license may be included in the text of a contract. But a license is not a contract, nor must a photographer receive any payment whatsoever for a license in the vast majority of cases. You give the permission, the permission is given. (Note, however, that while whether a release has to be written, and what format it requires, varies widely by jurisdiction, the requirements for a copyright license are standard throughout the US.) Like releases, licenses must contain any limiting terms at the moment they are granted: limits cannot be imposed later. You will note that my license does not allow the model to commercially exploit the images or to allow others to do so.

So again. The photographer can grant a copyright license. The model can grant a release of RoP. Excellent well, excellent well... but what if the parties are not quite this straightforward for some reason? Suppose the model is concerned they will not get the photographs they were promised by the photographer in consideration for posing? What if the photographer is worried the model will not pay for the photographs after they review them?

The parties, wishing to bind each other, must now enter into a contract.

A contract is a mutual exchange of promises, nothing more, nothing less. The promises may be executed immediately upon entering into the contract (such as when you pay cash at the store for goods) or may be delayed until future events occur or do not occur (such as when your insurance company promises to pay you if your car is stolen.) But for a contract to exist, both parties must make a promise, either to do something they are not otherwise obliged to do, or not to do something they would otherwise be entitled to do. Contracts generally do not have to be written (in some cases the copyright law does require written documents,) although of course it can be difficult to prove the terms of a contract that was never written down. An oral contract which contains a promise to later execute a written document (such as a license or release) is perfectly enforceable, if the party seeking to enforce it can prove it existed at all.

Interestingly, it's that latter formulation (the parties promise not to do something that they would otherwise be entitled to do) that governs contractual use of both releases and licenses. The model could use a promise not to sue a photographer for infringement of the model's RoP as consideration for something they want from the photographer (like prints or digital image files.) The photographer could likewise promise not to sue a model for infringement of copyright in exchange for something they want from the model (such as posing time, or a RoP release.)

So, let's take our oft-repeated situation where a model is trading posing time for images they can use to promote their modeling career. The parties should, of course, discuss what they expect (how many images, when they will be delivered, limits on usage by both parties) before the shooting even begins. When the session is over, the model usually signs a release. When the photographer delivers the images, they usually include a license. But if they have concerns that problems may ensue, they should enter into a contract. For instance, here is a short example of a contract which would govern the above sort of exchange:

"Marc Whipple (hereafter, "Photographer") and Jane Doe (hereafter, "Model,") by their signatures below, hereby enter into this Agreement for Photographic Services:

1) Photographer agrees to provide Model with six good-quality digital image files within thirty days of the signing of this Agreement. These files shall be suitable for use on Model's Internet portfolio site and comparable to the other images located there. Photographer also agrees to provide Model a reasonable copyright license allowing her to use the image files for reasonable self-promotional purposes.

2) Model agrees to provide Photographer with a reasonable likeness release which will allow him to make commercial usage of any and all photographs of Model which Photographer has produced.

Signatures: /Marc Whipple/, /Jane Doe/"

Now, this is a highly simplified contract. But it ties back in to our earlier examples. The photographer has to give the model her images as he's agreed, and a license to use them. If he does neither of these things, he's in breach of contract, and the model is not obliged to sign a release. In fact, she can sue him for her photographs, or for damages!

Similarly, the model has to sign the release, if the photographer lives up to his end of the bargain. If she doesn't, she's in breach (she's broken a legally enforceable promise,) and the photographer can sue her to get damages (money) or even specific performance. In other words, the court could order her to sign the release, and find her in contempt - possibly even jailing her! - if she refuses. If she were to try to sue him for breach of her RoP, he could use the unfulfilled contract as a defense, and her suit would likely fail.

A "real world" contract of this sort might have both the release and the license "built in," so that the terms are specified in advance, and just make them conditional upon everybody doing what they're supposed to do. In fact, that's usually how it's done in commercial photography. But this example shows the process as a series of discrete parts.

I hope those interested in the subject find this a useful and hopefully not too-intense introduction to these topics. Interested parties are invited to comment (I will respond here) or email me with questions or comments.

M More after the jump - click here!

Gasp!

Two posts in one day!

Just a quick update. We did go to Calumet, but they were out of pretty much everything. The woman behind the counter (who aside from being just adorable is, more importantly, also a highly-skilled photographer and a most expert salesperson) exclaimed, twice, "Oh, I'm waiting for one of those too!" when asked for something. The only thing we ended up buying was a packet of Brilliant Museum photo paper for my wife to play with. I just looked in my stash and I had a packet, but I already used some of it and I think she wants to do some comparison prints.

So I went on their website and ordered the stuff I wanted. They're switching filter manufacturers (their old manufacturer is Hoya, which produces material in Japan, and their new one is B+W, which produces material in Germany.) So their store-brand filters are largely on clearance - I got a circular polarizer for my wife for less than half price, and a 2-stop ND filter for both of us ditto. The only thing back-ordered was a .6 graduated ND filter I want mainly so my wife can do landscape work with it. They're back-ordered EVERYWHERE, for some reason. Not that I mind waiting, it's just odd. I guess that the recession hasn't hurt demand for 2-stop graduated ND filters. Go figure.

In case you wonder why I need all these ND filters, the regular 2-stop ones are essentially a way to restrict the amount of light that gets into the camera so you can slow down your exposure, or open up your aperture, even in bright light. There comes a point where, if you're outdoors in full sun, even at ISO 100 equivalent sensitivity, you just can't use a long shutter speed and/or a large aperture because the camera just can't handle all the light. This filter is essentially sunglasses for your camera, reducing light intake without affecting color. The back-ordered one is graduated - at one end, it's clear, and at the other, it's 2 stops darker, and from one end to the other it gradually gets darker or lighter depending on which way it's turned. This allows you to shoot things of extremely different brightness without blowing one side out, or making the other side too dark. The classical application for this is shooting landscapes - you hold the filter so that the light end is toward the ground and the dark end is toward the sky. Then you can still have a rich blue sky and a well-exposed ground.

We also went to the Blick store down the road from Calumet (interestingly, both Calumet stores in Illinois have a Blick store down the road) and she got a sheet of silver foil matboard. She looked pretty funny holding it in her lap all the way home, but we were in my truck and I was afraid it would get wet and/or beaten up if we put it in the back. (It has been raining here all day.) She plans to experiment with this for black and white pictures.

M More after the jump - click here!

Stirrings of Life

Well, obviously I haven't been very photographic - or very much of anything - here lately. Mostly I mess around with MMORPG (which shall remain nameless - I don't do endorsements unless I'm paid) and other useless ways to pass the time.

However, I decided that if I have all these pictures around, I might as well try to capitalize them, so I applied to another Internet stock agency. (Which shall also remain nameless until they accept me.) You have to submit a batch that passes human-monitored QC before you're accepted for full upload, and they failed my first batch because one of the images was too soft. I think they're nuts (I won a contest with that photo) but whatever.

I will not be active in their online community, as that never seems to go well for me. I am going to upload pictures and if somebody wants to license them, I'll get money. Well and good. Hopefully I won't kill this one by joining.

I bought a macro lens and fooled around with it some, but otherwise, I get my camera out for family stuff and that's about it. I think the PhotoShelter Collection shutting down hit me harder than I realized at first. (PhotoShelter's other services for photographers are still available and continue to receive good press. If you are a more commercially-oriented photographer, I think they are a good value and work well.) I am largely motivation-free when it comes to photography. Add to that some personal drama (not directly involving me) with the studio space I use and it's just not appealing at the moment.

However, I need to get out and I need to do stuff and this is getting a little sad. (Okay, sadder.) I think I'll go roust out my shopping partner and run to Calumet Photo just for fun.

I resubmitted a new batch this morning, too... I replaced my award-winning photograph with one which Richard Freaking Leakey licensed for a presentation for Science Week in NYC. If they don't take that, I will simply submit pictures of kitties and cute children until they let me in. Then I will upload a massive batch of subversion.

M More after the jump - click here!

Good Advice Then...

... good advice now.

This was taken at the Kankakee County Fairgrounds, in one of the livestock display barns. I wouldn't be surprised this sign was many decades old. Then, of course, the major risk was fire in the hay/straw/wood bedding of the animals, ignited by a flame lighting source or a cigarette.

While there's still a lot of hay, straw, and wood chips, neither flame lighting nor cigarettes were much in evidence. There were, however, much newer signs warning that food and drink were not allowed and that you should not touch your face while in the barn and that you should wash after you left. Bird flu and the Oink, you know. Ah, progress.

M More after the jump - click here!

For Your Consideration.

We took my daughter to the county fair today. Since we got there just as the Midway opened, we had to wait in line to buy tickets. There, apparently sent by the God of Metaphorical Photo Ops, I saw these two.

I call this, "Jackie Spratt and, Um, Jill Spratt."



I don't know (nor would I care to wager) that they are anything other than friends and/or relations. They might have even been total strangers waiting for their kids. The title is not meant to imply a spousal relationship. I just thought it was funny.

Incidentally I don't recall that Jack Spratt's wife had a name. In the nursery rhyme tradition I have called her Jill. I also considered Jane. Incidentally incidentally, you can't read it at this resolution, but the sign reads, under the "Notice" section:

Due to the design of the seating safety device on this ride, exceptionally large people may not be able to ride.

I think Jill is dead out of luck. Sorry, Jill.

Comments invited.

M More after the jump - click here!

No, I Did Not Get Hit By a Bus

Although the dog keeps trying to kill me. He likes to lay in the hall in the dark and see if he can break my legs. So far, he's only managed to hyperextend one of my toes on the laundry hamper, but it's only a matter of time.

I have not had any creative impulse whatsoever for quite some time, I'm sad to say. I mostly just sit around and do geek stuff. I did send a model who's traveling here (or maybe she already did) an email just to see if she'd work with me and she didn't answer, so that didn't help. I can handle most criticism but the kind which implies it's not even worth it to criticize me is kind of rough.

Anyway, here is a letter I got from a nice young lady in Greece and my comments on her questions. You may find it useful. Or interesting. Or at least mildly Amusing.


Hello!!I read your article http://www.marcwphoto.com/starting.html and I thought that you could maybe help me out and answer some qustions.
First of all I'd like to work on swimwear modelling and I'm thinking of building my portfolio soon.
Questions:1)Is it possible to start modelling and still be a good student?

That depends on your bandwidth. If you have the mental energy to try to do both, then yes. I know several models who have finished college degrees, including postgraduate degrees, while supporting themselves partially or wholly through modeling.

2)My portfolio should only include bikini pictures?

If all you ever ever ever want to do is swimwear, then I guess you could have all swimwear pictures and one good headshot, but you might as well at least put a few casual/lifestyle shots in there. It will look awfully strange if it's all bikinis, all the time.

3)Only one photographer helps with the portfolio or can I cooperate with more than one?

If you want your portfolio to have any depth, you're pretty much going to have to get images from more than one photographer.

4)How many pictures can you take in 1 hour?

Me? Thousands, especially if I put my camera on motor drive and hold the button down.

But if you want *good* pictures, the answer is complicated. I've gone the first hour of a shoot and not taken a single frame. I've taken thirty pictures in a two-hour shoot. (And to an old-school film photographer that could STILL be machine-gunning it.) I've taken three hundred pictures in a one-hour shoot. It depends on what you're doing. I would say that unless you're doing seriously complicated concept work, a one-hour shoot ought to get the model at least five pictures she can use, if you're doing trade or paying the photographer. See question three: you don't want or need dozens of pictures from any given photographer anyway. I'll never understand models who want all the images from a shoot. If you get one great image from a session, you're ahead of the game. More than that is a bonus. Unless, of course, you're paying for different looks - then you should expect at least one usable image for each look.

5)Who does the make up,the styling,the wardrobe?

That depends on who's willing to pay for what. I've had the model do it all herself, I've had models pay for stylists and artists, I've paid for stylists and artists, I've had stylists and artists work for trade, I've had clients pay for stylists and artists. (That last is how it works in the "real world" of commercial photography - they're just a line item on the invoice or included in the daily.) If you want pics for your port, either you ask the photographer to arrange makeup and styling and pay for it as part of the shoot, or you arrange for it yourself. If you're doing trade you can often find artists and stylists who also want trade, although they do tend to be less experienced.

6)Do photographers retouch the pictures taken?

Usually, especially if you're paying. However the level of retouching varies wildly, as does the quality. I retouch my pictures very little, but that's because (if I do say so) I know how to take pictures that don't need much retouching. Some photographers are mediocre photographers but have Photoshop skills far exceeding my own. This is great, unless their pictures end up more as photo-illustrations that don't *look* like you. If you show up at a shoot looking radically different than your heavily-retouched pictures, the photographer/client is going to be very upset.

7)I checked model mayhem out for photographers and found some really good ones(and expensive)for bikini shoots but I didn't find someone whose pictues I like here in greece.Should I take some pictures with a not-so-good photographer at first or what else can I do?

If you want pictures to use to market yourself, not-so-good images are worthless. Better to have digital snapshots your friend takes with a point-and-shoot camera than crappy-looking pro pics. Digital snapshots say, "Hey, I'm just starting," and crappy-looking pro pics say, "Hey, I have no idea what good pictures look like and I paid this shmuck to make some bad ones for me." :)

If you listen to nothing else I say, listen to this: It is better to have one good headshot and one good body profile than fifty crappy pictures. Quality is EVERYTHING. Photographers have a saying that you are only as good as your worst picture. It also applies to models.

M More after the jump - click here!

Right of Publicity Produces Win-Win-Tie Result

Woody Allen settles with American Apparel for $5M for using his likeness in an ad without permission:

Woody Allen wins $5 million in lawsuit over his image

Despite the headline's text he did not win the money, it was a settlement on the eve of trial.

Win 1: They blatantly took a still from one of his films and used it in an ad. They claimed Fair Use, in that they added a caption in Hebrew, and that obviously, it was "never meant to sell clothes." However, their logo was quite visible on the billboard they made. A court would have made short work of this argument, I think. Commercial misappropriation is a lot harder to defend than noncommercial, and putting your logo on something, especially when you are known for offbeat ads, kind of gives the lie to the idea that it wasn't commercial usage. Right of Publicity comes out on top.

Win 2: I despise American Apparel, at least I do whenever they are brought to my attention. Their ads are the worst FOTM Terry Richardson/Ryan Mcwhatshisface dreck and their products, at least what I've seen in said ads, are ugly and faux-retro in a lazy mass-market way. What discomfits them refreshes me. Also, they tried to intimidate Allen by putting his ex-wife and his current wife, the victim and subject of a rather scandalous affair, on the proposed witness list. That was pure sleaze, as neither of them could possibly have anything to do with the case.

Tie: I have never liked Woody Allen's movies or much cared for the tiny bit I know about him through unpurposed media input. OTOH, he doesn't seem inclined to put up with people doing him wrong, which I have to admire. So I guess it's okay that he won, although ideally somebody would have hit him with a pie on his way out of the courthouse or something.

M More after the jump - click here!