4 ms·

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

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.
        nate_meurer 5y ago
        What is your personal threshold for "naked"? Completely naked? Diapers? Nipples showing?
        burnished 5y ago
        If your position is something along the lines of, babies cant consent, young children cant consent, why dont we just live in a world where we dont include them in media so we dont have people growing up having to figure out how they feel about how they were presented to the world... sure, that would be a pretty consistent world view. If its just that you think a naked baby is pornographic then I guess its an entirely different conversation. Its not really clear what motivates your statement here though.
  - vmception 5y ago
    You had good arguments, this is the weakest one of them. The child pornography aspect of this civil suit is just to settle it faster, in order to add gravity to the situation, but it would be counterproductive in actuality. Although likeness is regulated only at the state level, and is the only aspect of this lawsuit, copyright is regulated at the federal level and is the basis for the commercial licenses to exist at all - if this actually was child pornography which requires a category of something considered obscenity, it would be ineligible for copyright which would mean the existing licensors would have no reason to pay for the license at all, and there would be no value to give for the likeness settlement. The rest is your feelings and that is not relevant here.
- vmception 5y ago
  > 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. Its not a moral quandary it is a contractual quandary which the lawsuit accurately details. If his parents didn't sign the likeness then anyone using the image has a liability issue. It doesnt matter if its the photographer, Nirvana, the record label, etc Yes, your edit covers it and I would also say he has a case. Spoonjim has been correct the whole time. Somehow that opinion isnt seen as popular right now but the accuracy is not in question.

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.
        nate_meurer 5y ago
        What is your personal threshold for "naked"? Completely naked? Diapers? Nipples showing?
        burnished 5y ago
        If your position is something along the lines of, babies cant consent, young children cant consent, why dont we just live in a world where we dont include them in media so we dont have people growing up having to figure out how they feel about how they were presented to the world... sure, that would be a pretty consistent world view. If its just that you think a naked baby is pornographic then I guess its an entirely different conversation. Its not really clear what motivates your statement here though.
- vmception 5y ago
  You had good arguments, this is the weakest one of them. The child pornography aspect of this civil suit is just to settle it faster, in order to add gravity to the situation, but it would be counterproductive in actuality. Although likeness is regulated only at the state level, and is the only aspect of this lawsuit, copyright is regulated at the federal level and is the basis for the commercial licenses to exist at all - if this actually was child pornography which requires a category of something considered obscenity, it would be ineligible for copyright which would mean the existing licensors would have no reason to pay for the license at all, and there would be no value to give for the likeness settlement. The rest is your feelings and that is not relevant here.
vmception 5y ago
> 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. Its not a moral quandary it is a contractual quandary which the lawsuit accurately details. If his parents didn't sign the likeness then anyone using the image has a liability issue. It doesnt matter if its the photographer, Nirvana, the record label, etc Yes, your edit covers it and I would also say he has a case. Spoonjim has been correct the whole time. Somehow that opinion isnt seen as popular right now but the accuracy is not in question.