UPDATED: Performance Artist Claims Burger King Stole and "Digitally Raped" Her Face

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.

 

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39 Comments

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.

David Norman's picture

Just a nit, but it's "fellatio."

Jaron Schneider's picture

I clearly don't use that word enough.

Lee Morris's picture

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.

Jim Wells's picture

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.

Karma Wilson's picture

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.

Lee Christiansen's picture

If the image is not licenced to Burger King, (sounds as if it wasn't), then I smell lots of £££ - and quite rightly so.

Not only have performance & copyright issues been ignored, but along with the model's rights, BK have also portrayed her image in a detrimental way and one that could affect future work.

I ope BK have deep pockets because a good lawyer will have a field day with this one. I'm guessing compensation to the photographer and model will be based on the advertising / print budget and damages. Amazing BK could have been so unbelievably stupid.

Matt Rennells's picture

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...

Matt Rennells's picture

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.

Nick Viton's picture

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.

Jaron Schneider's picture

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.

Matt Rennells's picture

Thanks for the "hat tip" and update to the article.

Jaron Schneider's picture

Gonna update again and actually link to your FS profile :)

kevin nnnnn's picture

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.

Karma Wilson's picture

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

Karma Wilson's picture

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.

Karma Wilson's picture

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.

Mike Pomazal's picture

This might help understand the legalities: Watch from 19:30 to about 23 min

https://www.youtube.com/watch?v=cGRvXB0d3dw

Karma Wilson's picture

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.

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!

Karma Wilson's picture

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)

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