One of the members of performance artist YouTube channel RV Wonderspunk is claiming that fast food chain Burger King not only used her photo in an unintended and sexually charged way, but also did so without asking permission or paying for the image. Aside from the fact the photo is allegedly stolen, this is an example of how far from original intent some can take an image.
UPDATED 08/08/2014 11:52 AM PT:
Fstoppers reader Matt Rennells very astutely found a link to the photo file on Shutterstock that Burger King used in the ad. Shutterstock has an excellent policy of requiring a signed model release from the photographer, and that is in play here as it clearly states that they do have one.
What this appears to be is more a case of a model not really understanding the implications of stock photography and the freedoms companies can take with an image if they purchase rights to it.
ORIGINAL STORY:
According to the video, the photo in question was taken along with a set of others in a non-serious, harmless way, absent of any sexual meaning.
Burger King allegedly found one of the images from that day's set and decided to use it for an ad that rather openly implies... well... fellatio.
Burger King found my photo online from a series I did of various facial expressions and contortion poses, and with no due regard to me as a person, profited off reducing me to an orifice for their penis sludge; publicly humiliating me in the process. It was shown online as well as on bus stops and the walls and place mats of their restaurant.
When asked for comment from the press Burger King claimed the campaign went down well, however after some research I discovered The Advertising Standards Authority of Singapore (where it was released) received several complaints and the campaign had to be prematurely removed.
This is a top International food chain the world is watching that has a code of ethics they're required to adhere to for that reason by law but did not in how they went about using my image.
Now due to the coverage its received (Time Magazine's Top Ten Tasteless Ads, Business Insider, Buzzfeed, Gawker, Psychology Today to name a few) it's part of the public domain. Just recently it was the topic of discussion in a media studies class of 500 students at the University of Toronto - where I live... and posted to the class Facebook discussion page.
If what is being alleged here is true, I'm not entirely certain that the photo actually is part of the public domain. As far as my understanding of copyright goes, until the model and the photographer give consent, it's illegal to use it for monetary gain. That said, at this point it might be difficult to stop, much like the Stolen Scream.
Isn't the only thing that matters if she signed a model release and if the image was stolen or if it was licensed to Burger King? If she signed a model release and the photographer sold the image seems like she's out of luck.
Just a nit, but it's "fellatio."
I clearly don't use that word enough.
I saw the ad and didn't get it at all until she said in the video "blow job". For once I have clean mind.
Not sure this is that offensive though.
I am with Lee Morris on this one. I didn't think "blow Job" until she said it. With the price tag on the add, I keep a clean mind until directed a different way. She is way to touchy on this - its a stretch
My mind went that way immediately since the article says "raped my face". It wasn't hard to make that connection. But had I seen the ad outside of the context I might not have gone there. I think she is being a bit touchy though.
The close up was more ambiguous but as soon as I saw the full ad with the "super seven incher" and "it will blow your mind away" it was clear. Since it's actually used in college media courses as an example of sexually charged advertising, and was voted one of the five most tasteless ads of the year it was released, I think it's safe to assume that the intent was less than classy...ha ha.
However, the takeaway for me is that huge corporations using open stock photos are making a mistake. Knowing personally some of the ad budgets spent by these companies for the ad space, the design team, the production managers, etc, the thought that they wouldn't hire a competent professional photographer to take original content is baffling. If you do things right from the first, this kind of thing can't happen. The model knows right out of the gate how the photo will be used. She signs the dotted line, and this is no more than a tasteless ad. Litigation wouldn't be a question. It reminds me of when the two cell phone companies bought the same stock of the same girl in the same poses for their internet ads a few years back. Hello?
As an aside, who wrote this ad? It's either "it will blow your mind" or "it will blow you away". Cliche merge for the win! lol
Please explain, "... the model knows right out of the gate how a photo will be used".
First off, I have yet to run across an assignment where a model was even asked her opinion, let alone consulted with after the photoshoot in regards to art direction or campaign comps. A super model/actress and agency representing him/her is a different story all together of course. Also consider, campaigns change over time or do derivative materials from the original shooting. What if this was the second, third... or hairbrained idea from the CEO's niece they went with?
Sorry, but the average model release does not include any clauses that he/she needs to be notified of any changes to a campaign or photo usage. However, some do include clauses by his/her agency regarding sex toy advertising, innuendos and the like. Similar to those in the stock agency agreements come to think of it.
From a quick online search, the images from that shoot are on Shutter Stock. I used the search terms, "open mouth, profile" and it was one of the first results. According to Shutter Stock it is listed as an image with a signed model release. She has really no claim here. Since she's a "performance artist" I'm guessing all of this brouhaha is just trying to get her more exposure and promotion. Here's the link: http://www.shutterstock.com/pic-16861087/stock-photo-profile-portrait-of...
There's also an image of her bent completely over at the waist looking back through her legs grabbing her ankles. That image is way more "sexual" than this image of a sandwich by her mouth.
Good find. If BK marketing in Singapore can prove they purchased the image through Shutter Stock, then they're in the clear, no?
The plot thickens.
It was this reason alone that i wrote "allegedly." I thought it was a large possibility that she just didn't understand how stock photography works.
Thanks for the "hat tip" and update to the article.
Gonna update again and actually link to your FS profile :)
wow we are desensitized as a culture, to say a woman is being "touchy" about her(or any woman's likeness) being featured in an ad with the primary text being "IT'LL BLOW" followed by "super seven incher" and an obviously phallic representation of food... its very naive to think this wasnt the intention of the team that made this ad... whether she signed a release is another story but im still always surprised by the support of these repressive ads :/
Is the ad tacky? Sure. I'm sure that it was the intention of the design team to make a giant penis sandwich. However, the issue is she is throwing a fit because she doesn't like how her photo was used even though she signed a model release. A lot of models don't like how their photos are used and there is no law that models have to approve every appearance of their photo. Stating these things doesn't mean one supports BK.
I read somewhere, not sure if it's true, that the release was standard and stated specifically that if the photos were to be used in tasteless or defaming ways an extended release needed to be signed off by the model. However, like I said, I read it in passing and do not know if this is true or not.
This is the model release from Shutterstock. Looks like the photographer can do whatever they want.
https://submit.shutterstock.com/legal/pdf/en/adult_model_release.pdf
I am out the door or I'd look it up myself, but I'm curious what the buyer/user agrees to when they buy the image.
I'm calling shenannigans on the model. In the video she seems rather upset that her photo was used in a sexual manner. However...
She had no issue with this image http://www.shutterstock.com/pic-16861081/stock-photo-midsection-of-young...
Or this one http://www.shutterstock.com/pic-16861078/stock-photo-young-caucasian-wom...
Or this one http://www.shutterstock.com/pic-16861120/stock-photo-portrait-of-young-b...
It's just like a prostitute (male or female...). They WILL do pretty much anything provided you pay the right fee.
They didn't pay the fee.
I also read somewhere that the stock company's release specifically said if the photos were to be used in any way that may defame the model, including sexually, they must get an extended release signed. Not sure if that's true or not.
Thank you Karma 💗 yes, there are clauses specifically prohibiting this sort of use, understandably. Could you imagine if companies could take liberties like photoshopping whatever phallic product they're trying to sell near female orifices to suggest sex acts without even being certain she is over 18, let alone if she'd consent to it? A standard commercial release is not a free-for-all...unless you're a billion dollar corporation, apparently and "release" it in Singapore...but "oh oops, we also put it on the company's website and now it's gone viral."
This might help understand the legalities: Watch from 19:30 to about 23 min
https://www.youtube.com/watch?v=cGRvXB0d3dw
So, I found this story interesting as I always do when large companies get burned for buying cheap stock and not investing in original content. The model release thing has been mentioned. A model release was signed. The photographer is clear, and SS is clear. The model can't go after either of these two for sure, nor can BK.
However, the model is not mentioning the photographer being at fault, but BK. Indeed, there is mention against using images in a defaming manner in their TOS, which I've pasted below. Now, to me it seems that ShutterStock would need to pursue this, not the model. The breech, if there is one, was with SS and BK, and I doubt SS has interest in pursuit.
I do think the model went overboard in her response, especially since so much time has passed before she came forward. I think the ad was tasteless and, well, bad in a lot of ways (the writer particularly should be embarrassed). But I also think the model pursuing this is only good for professional photographers offering original content. It just gives one more story of "stock gone wrong" and encourages the use of media that is tailored and not so generic for high profile companies. :)
SS TOC______________________________________
13.
Use an Image in a way that depicts any person therein in a way that a reasonable person might find offensive - this includes, but is not limited to the use of Images: a) in pornography, "adult videos" or the like; b) in ads for tobacco products; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements or promotional materials for pharmaceutical or healthcare, herbal or medical products or services, including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products; and f) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content. You may not use an Image containing the likeness of a person if such use implies that the model engages in any immoral or illegal activity or suffers from a physical or mental infirmity, ailment or condition. Shutterstock offers licenses that allow for certain "sensitive" uses prohibited by this Standard License. Please contact Shutterstock Support for more information.
_________________________________________
Yeah... my apologies for replying above before reading the whole thread.
"Now, to me it seems that ShutterStock would need to pursue this, not the model. The breech, if there is one, was with SS and BK, and I doubt SS has interest in pursuit. "
Yup.
The breach is shoving a seven incher in my face to suggest a BJ which inspired an entire smear campaign with guns and dicks in my face. Sorry y'all, clearly a model speaking up about being reduced to a cum dumpster w/out her knowledge or consent irks you...take whatever psychological issues are being stoked by me having a voice on this to your therapist..or better yet, repent to the females in your life to sort out and break the generational misogynistic mindset being handed down thru your bloodlines.
Hi I love you
Model release signed, no laws broken. Not even an issue. That is until a model doesn't understand what she's signed...bless her for thinking that bk have to ask and pay her to use an image taking from a stock site. I expect she's very naive to the situation and will be a harsh lesson to her to understand that a seemingly 'innocent' image can be used in many diffenernt ways and contexts. Having said that she claims it was an part of a series of facial expressions...I don't really understand what this expression is? I mean if I took that image I'd would probably guess that it would be used in the context that bk did - because she sure as hell does not look shocked!
Naive? LOL. She's getting tons of exposure and she's a performer. There is no such thing as bad press. She's not naive, she's just working it I think. :)
Yes, naive. She maybe getting 'exposure' but calling out other businesses and aligning it to rape is totally unprofessional and naive. If she had an issue with the way the image has been used don't bitch and whine about it on the internet, deal with it professionally. Especially when you're in the wrong (apparently)
I would not ever hire her after this. She may be naive, courageous or just a fool, I don't know. But so far, she means only trouble. I truly feel sorry for her if she is genuinely hurt. Such is life. Learn from it.
Sigh...I guess we can't choose our lot in life, unless you're a billion dollar corporation, then you can choose the lot of others.
As for the use of the word "rape", perhaps I was triggered. People seem to have a problem with my reaction. Perhaps I've been raped and perhaps this was way worse, the bullying, the public humiliation, the never-ending justice battle. Having to accept that a large reputable company is allowed to behave this way and there is nothing I can do. What's the "right" reaction? Being made to feel like I'm some sort of embarrassment to feminism is part of the problem inherent in the feminist fight. People have such strong opinions on something that never happened to them, how can they know what it's like until it's their face being photoshopped by the public into renditions like these, and their voice being ignored when trying to get help?:
http://i.imgur.com/VpgvDfa.jpg
https://www.flickr.com/photos/winwineee/13408315273/in/dateposted/
This textbook definition of rape, I'd say it applies:
rape noun (1)
Save Word
\ ˈrāp \
Definition of rape (Entry 1 of 4)
1: unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception
— compare SEXUAL ASSAULT, STATUTORY RAPE
2: an outrageous violation
3: an act or instance of robbing or despoiling or carrying away a person by force
As for the use of the word "rape", perhaps I was triggered. People seem to have a problem with my reaction. Perhaps I've been raped and perhaps this was way worse, the bullying, the public humiliation, the never-ending justice battle. Being told I have to accept that a large reputable company is allowed to behave this way and I have to just suck it up. What's the "right" reaction? Being made to feel like I'm some sort of embarrassment to feminism is part of the problem inherent in the feminist fight. People have such strong opinions on something that never happened to them, how can they know what it's like until it's their face being photoshopped by the public into renditions like these, and their voice being ignored when trying to get help?:
http://i.imgur.com/VpgvDfa.jpg
https://www.flickr.com/photos/winwineee/13408315273/in/dateposted/
This is the textbook definition of rape, I'd say it applies:
rape noun (1)
Save Word
\ ˈrāp \
Definition of rape (Entry 1 of 4)
1: unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception
— compare SEXUAL ASSAULT, STATUTORY RAPE
2: an outrageous violation
3: an act or instance of robbing or despoiling or carrying away a person by force
It's my understanding that you can't use stock images in a way that could be considered pornographic. I didn't think Burger King was who they had in mind when they wrote that into the contract—I stand corrected.
I believe the contracts are worded 'cannot be used in a pornographic manner' not 'cannot be used in a way that could be pornographic' and this advert isn't pornographic...it connotes a sexual act but it isn't pornographic.
Its almost certain that there is a model release and BK had complete rights to execute this ad campaign. It's not that the image is unique or special, and could be replicated by anyone. I'm sure the model quickly realized that threatening to sue and cause a fuss about this advertisement was the perfect opportunity to get loads of free publicity all over the world. She labels herself as a "performance artists" and this is certainly will be the most recognized performance she will ever give.
Perhaps on a grand scale, unfortunately you may be right.
The "performance" you speak of, I mean. In having to speak out about the truth of this situation.
Her channel is down now, and there's a message that says "This account has been suspended due to multiple or severe violations of YouTube's policy against spam, gaming, misleading content, or other Terms of Service violations. " I think she got too many views and Youtube shut it down thinking it was spam.
Wow, Youtube killed her account and shut her down. Interesting.
Yes, I had to appeal to reinstate it. I was in good standing until I had to speak out about this.
If you pose profile and make and O face, the only thing you should expect is for stuff to be photoshopped in front of your mouth.
Yeah, like.."wow!! Amazing deals!" Something like that? Or "Flexible phone plans!" in the several contortion shots I was asked to do?
That's the direction I thought companies might take..a "seven-incher" shoved in my face to suggest a BJ? Resulting in an international smear campaign I was not expecting...
the model possibly assumed having ownership to her likenesses even after signing a release, obviously totally wrong unless it was in the model release to have partial ownership.
Here are 4 reasons i feel no sympathy for this Model.
1.) http://www.shutterstock.com/pic-16861069/stock-photo-young-caucasian-wom...
2.) http://www.shutterstock.com/pic-16861078/stock-photo-young-caucasian-wom...
3.) http://www.shutterstock.com/pic-16861114/stock-photo-side-view-of-young-...
4.) http://www.shutterstock.com/pic-16861120/stock-photo-portrait-of-young-b...
If those arent enough reasons for someone to lose the right to say Facerape and the quote by Amy Jellioce, i have one final thing to say...
It is common knowledge that more innocent photos, taken OF and BY normal people have been shopped into alot worse situations. Not to mention, if you are truly afraid of being the item of a sexual innuendo, try not to pose mouth open in shock, at a side angle, or bent over holding your ankles with a cheeky grin. Just sayin.
You cant complain if you sign a model release and your image gets sold to shutterstock. No one from shutter stock has to go, Oh, 'Jane Doe's open mouth image has been bought. lets inform her it could become a SmutChampagne.' Especially if you're posed like you walk in knowing its gonna be for the cover of a soft core porno or the image on a vibrator package.
My bad. I didn't realize we live in a world where companies can go around shoving whatever phallic product they're trying to sell near womens' orifices to suggest sex acts. For a profit. Without the woman's knowledge or consent. And without even being sure if she's over 18. Also, thank you to those sharing the "sexual" poses the photographer asked me to do, to further your point that we still live in the dark ages.