4 ms·

You can't say the motivation doesn't matter when the person is clearly ill-intended. He claims he "has suffered and will continue to suffer lifelong damages". N

You can't say the motivation doesn't matter when the person is clearly ill-intended. He claims he "has suffered and will continue to suffer lifelong damages". Nobody knew who this person was before he started complaining about it, how could he "suffer damage" from it? There's no case here and any defense lawyer would have a field day with this.

spoonjim 5y ago
My reason for not caring about his motivations is that a big reason for torts to exist is to discourage bad behavior from others. If you look at the actions of a major American corporation a huge fraction of them are “so we don’t get sued.” The next time a record label thinks about using an exploitative image of a baby for their advertising, I want them to think “oof, remember when we did that and had to pay out $100 million?” Not “oh yeah, remember that was one of the iconic album covers of all time.” Elden himself hardly matters to this... a judge ordering the label to set $100 million on fire (or make a non-deductible charitable donation) would have the same effect.
- sokoloff 5y ago
  The record label secured the rights to use the photo from people legally able to grant those rights. I don’t see a legal quandary at all and, unless you think all minors’ likenesses should not be able to appear in commercial material, I don’t see a moral or ethical quandary. Plaintiff’s destination for their complaint is with their parents, IMO. Same as if adult Mikey objected to being associated with Life cereal or adult Macauley Culkin objected to being in Home Alone. Edit to add: > Elden says his parents never signed a release authorising the use of his image on the album. Iff that claim is true (which should be a relatively straightforward finding of fact) and that fact means that the label didn’t have the rights to use the likeness [the claim doesn’t rely on a technicality of the word “release”, but where the label has a license to use], then I’d say he’s got a case.
  - spoonjim 5y ago
    I see this photo as somewhere in the uncomfortable gray area between Macauley Culkin and child pornography. That's why I don't believe the same rules should apply.
    - burnished 5y ago
      What? In what way is this possibly pornographic? It is really uncomfortable to me that you're just going to casually throw that out there as an axis for this to be measured on.
      - spoonjim 5y ago
        It is a naked picture of a baby clearly used to provoke and advertise. I'm OK with naked baby photos being taken and kept by parents but I don't think it's OK to use a child's naked photo as one of the iconic commercial photos of a generation. I do not think it is child pornography but I think that it is a misuse of a baby's naked photo in a way that a parent should not be able to consent to on behalf of the child.
        burnished 5y ago
        I feel like part of the problem is that your position is changing based on outcome, right, like it became a problem after the fact when it became a commercial hit.
        spoonjim 5y ago
        I don’t think naked baby photos should be commercially licensable at all.
        sokoloff 5y ago
        Not even for biology/medical textbooks or forensics training content or other educational purposes from commercial publishers? I don’t see naked as equaling sexualized and I don’t see the Nirvana cover as the latter either, but I definitely can’t see a total ban on pictures in commercially-sold material being workable.
preinheimer 5y ago
I absolutely think it's possible to suffer as the result of a photo, even if it's not clear you're the subject.
DSMan195276 5y ago
> Nobody knew who this person was before he started complaining about it, how could he "suffer damage" from it? Ehh, that seems like pretty shaky logic. I think it's pretty safe to say that lots of people would be bothered by naked pictures of themselves being posted publicly for all to see, even if they can't be identified by the pictures. That's not to say he's going to win, but I think you're simplifying things a bit too much.
- rockbruno 5y ago
  Sure, but you ignored the part where he's ill-intended. This is obviously not bothering him given that he willingly recreated the picture in the past to milk money out of it.
  - DSMan195276 5y ago
    How is the part I quoted related to whether he's ill-intended or not? Weren't you saying that before anybody knew it was him it was impossible for him to "suffer damage" from it? That's the part I disagree with.
vmception 5y ago
It doesnt matter. You can be exuberantly happy about a photo and still have power over it if that power was not signed away. The power in this case is damages which can be collected due to the ongoing commercial use.

spoonjim 5y ago

My reason for not caring about his motivations is that a big reason for torts to exist is to discourage bad behavior from others. If you look at the actions of a major American corporation a huge fraction of them are “so we don’t get sued.” The next time a record label thinks about using an exploitative image of a baby for their advertising, I want them to think “oof, remember when we did that and had to pay out $100 million?” Not “oh yeah, remember that was one of the iconic album covers of all time.” Elden himself hardly matters to this... a judge ordering the label to set $100 million on fire (or make a non-deductible charitable donation) would have the same effect.

sokoloff 5y ago
The record label secured the rights to use the photo from people legally able to grant those rights. I don’t see a legal quandary at all and, unless you think all minors’ likenesses should not be able to appear in commercial material, I don’t see a moral or ethical quandary. Plaintiff’s destination for their complaint is with their parents, IMO. Same as if adult Mikey objected to being associated with Life cereal or adult Macauley Culkin objected to being in Home Alone. Edit to add: > Elden says his parents never signed a release authorising the use of his image on the album. Iff that claim is true (which should be a relatively straightforward finding of fact) and that fact means that the label didn’t have the rights to use the likeness [the claim doesn’t rely on a technicality of the word “release”, but where the label has a license to use], then I’d say he’s got a case.
- spoonjim 5y ago
  I see this photo as somewhere in the uncomfortable gray area between Macauley Culkin and child pornography. That's why I don't believe the same rules should apply.
  - burnished 5y ago
    What? In what way is this possibly pornographic? It is really uncomfortable to me that you're just going to casually throw that out there as an axis for this to be measured on.
    - spoonjim 5y ago
      It is a naked picture of a baby clearly used to provoke and advertise. I'm OK with naked baby photos being taken and kept by parents but I don't think it's OK to use a child's naked photo as one of the iconic commercial photos of a generation. I do not think it is child pornography but I think that it is a misuse of a baby's naked photo in a way that a parent should not be able to consent to on behalf of the child.
      - burnished 5y ago
        I feel like part of the problem is that your position is changing based on outcome, right, like it became a problem after the fact when it became a commercial hit.
        spoonjim 5y ago
        I don’t think naked baby photos should be commercially licensable at all.
        sokoloff 5y ago
        Not even for biology/medical textbooks or forensics training content or other educational purposes from commercial publishers? I don’t see naked as equaling sexualized and I don’t see the Nirvana cover as the latter either, but I definitely can’t see a total ban on pictures in commercially-sold material being workable.

preinheimer 5y ago

I absolutely think it's possible to suffer as the result of a photo, even if it's not clear you're the subject.

DSMan195276 5y ago

> Nobody knew who this person was before he started complaining about it, how could he "suffer damage" from it? Ehh, that seems like pretty shaky logic. I think it's pretty safe to say that lots of people would be bothered by naked pictures of themselves being posted publicly for all to see, even if they can't be identified by the pictures. That's not to say he's going to win, but I think you're simplifying things a bit too much.

rockbruno 5y ago
Sure, but you ignored the part where he's ill-intended. This is obviously not bothering him given that he willingly recreated the picture in the past to milk money out of it.
- DSMan195276 5y ago
  How is the part I quoted related to whether he's ill-intended or not? Weren't you saying that before anybody knew it was him it was impossible for him to "suffer damage" from it? That's the part I disagree with.

vmception 5y ago

It doesnt matter. You can be exuberantly happy about a photo and still have power over it if that power was not signed away. The power in this case is damages which can be collected due to the ongoing commercial use.