Astronaut Sues Dido For Using His Photo In Album Cover

from the ah,-publicity-rights dept

Wed, Oct 6th 2010 9:36am — Mike Masnick

Ben alerts us to the news that astronaut Bruce McCandless is suing the musician Dido for her album cover on her 2008 album, "Safe Trip Home," which uses a NASA photo of McCandless in space:

Now, it's notable that McCandless is not claiming copyright over the image -- which is good, because he almost certainly doesn't own the copyright. Either the photographer who shot the image does or (more likely) the photo is owned by NASA which should make it public domain (though, potentially not). It appears that instead, McCandless is claiming a violation of his publicity rights, which we've noted has become all too popular a legal strategy these days. It's quickly getting up there in popularity as a "new form" of intellectual property -- and one that is perhaps even more questionable than patents and copyrights.

If this really is a publicity rights claim (~~and, if anyone has the actual filing, I'd love to see it, and post it here~~ see update below), it's difficult to see how much of a claim he has. It's not as if he's identifiable in the image, or that anyone will see it and think: "Hey, I'll buy this album because I know astronaut Bruce McCandless endorsed it." That's ridiculous. Most people will have no idea who the astronaut is, nor will they even care. This seems like yet another blatant money grab, made possible due to the ever increasing (and dangerous) belief that we own "rights" to imaginary concepts.

Update: Thanks to all of you for sending me the filing. It's posted below, and it's pretty much what you'd expect. Standard publicity rights claim:

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Filed Under: album covers, bruce mccandless, dido, publicity rights

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Thomas (profile), 6 Oct 2010 @ 8:38am

One small lawsuit for man,
One giant leap backward for mankind.
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- Philip Dennis, 8 Oct 2010 @ 11:49am
  
  Re: One small lawsuit for man,
  Ha ha ha i Like that and its true .
  [ link to this | view in chronology ]
- Max, 8 Oct 2010 @ 11:05pm
  
  Re: One small lawsuit for man,
  one giant leap backward for mankind!
  [ link to this | view in chronology ]
Christopher Gizzi (profile), 6 Oct 2010 @ 8:53am

More Importantly...
Dido released an album in 2008? I thought she faded into obscurity.

Oh...
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Ben (profile), 6 Oct 2010 @ 9:05am

McCandless is identifiable in the photo in that he is the only astronaut to have free floated, untethered to any spacecraft, but it's a stretch to assume this is common knowledge...
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- Chronno S. Trigger (profile), 6 Oct 2010 @ 9:48am
  
  Re:
  That's never happened before? But pictures like that are so common, I thought it was just something NASA did.
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  - Jon B., 6 Oct 2010 @ 10:12am
    
    Re: Re:
    That's a pretty famous iconic image. If you don't know who's in the image, it's easy to figure out.
    [ link to this | view in chronology ]
    - MrWilson, 6 Oct 2010 @ 10:17am
      
      Re: Re: Re:
      Just because you've seen it before doesn't make it famous. Just because I've not seen it before doesn't make it obscure. Do you have some study that shows how many people have seen the picture and would remember seeing the picture to be able to claim that it's famous?
      [ link to this | view in chronology ]
    - Chronno S. Trigger (profile), 6 Oct 2010 @ 12:01pm
      
      Re: Re: Re:
      Your comment made me curious as to how hard it would actually be to find this information if I didn't already know. You know what I came up with? The damn image is a stock image. Novastock owns it. Bruce McCandless has even less of a claim over this.
      
      I also learned that he is flying an Untethered Manned Maneuvering Unit (UMMU) first used in 1984. Unless this guy is also him. I can't tell, the radiation shield makes it hard to see a face.
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      - Mudlock, 6 Oct 2010 @ 12:09pm
        
        Re: Re: Re: Re:
        From the text directly below the image on stock image:
        
        "If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person."
        [ link to this | view in chronology ]
        
        Chronno S. Trigger (profile), 6 Oct 2010 @ 12:23pm
        
        Re: Re: Re: Re: Re:
        That's part of my point. It's not a person in the picture, it's a suit floating in space. The UMMU has been used by others, so are we absolutely sure that's him there? As others have pointed out, there are no distinguishing marks nor is there that camera he claimed to have.
        
        It's like freaking out that Muhammad is in a bear suit and it turns out to be Santa.
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      - Mike Masnick (profile), 6 Oct 2010 @ 4:59pm
        
        Re: Re: Re: Re:
        Your comment made me curious as to how hard it would actually be to find this information if I didn't already know. You know what I came up with? The damn image is a stock image. Novastock owns it. Bruce McCandless has even less of a claim over this.
        
        I believe it's a NASA image, which should mean it's public domain. Novastock, or any stock repository, should not be able to claim ownership on it, even if they can probably sell it.
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- R. Miles (profile), 6 Oct 2010 @ 10:35am
  
  Re:
  Liar. That was Tommy Lee Jones in that movie about that one astronaut's life.
  
  What was that movie called again?
  
  Oh yeah! Space Cowboys. It also starred John Wayne, Jim Rockford, and that guy who is on the internet, screaming... what's his face.
  
  I couldn't resist this opening.
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  - Michael, 6 Oct 2010 @ 11:59am
    
    Re: Re:
    Wasn't he strapped to a nuclear warhead rather than free-floating?
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  - Anonymous Coward, 6 Oct 2010 @ 10:31pm
    
    Re: Re:
    John Wayne starred in a movie 21 years after he died
    Now thats impressive and much more of a story
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- Anonymous Coward, 6 Oct 2010 @ 11:45am
  
  Re:
  Its stretched from earth's surface to high altitude orbit.
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- matt, 6 Oct 2010 @ 9:06pm
  
  Re: Ben
  I think he was the first, but not the only, free float.
  [ link to this | view in chronology ]
  - Anonymous Coward, 14 Nov 2010 @ 4:09pm
    
    Re: Re: Ben
    but he was the only one to ever free float that far from the shuttle... and this was the only time photos were allowed to be taken too.
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- Anonymous Coward, 6 Oct 2010 @ 9:46pm
  
  Re:
  Crazy. I guess there's no way that image could have been any other astronaut with the tether and/or space station photoshopped out...
  
  Nuts.
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- Pat, 7 Oct 2010 @ 6:49am
  
  Re:
  Wrong, he was only the first to do that in the MMU. There have been others.
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Travis, 6 Oct 2010 @ 10:00am

ROFLMAO
Are you serious? That photo could have been photoshopped for all anyone knows. There's no obviously identifiable evidence that that IS Mccandless to begin with. This could SO be laughed out of a court room. America seriously needs to clean up it's court room.
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- Anonymous Coward, 6 Oct 2010 @ 11:43pm
  
  Re: ROFLMAO
  More than that, it's an astronaut suit that's in the photo. They all look the same regardless of who is in it. In fact, I'm sure that McDipshit can't even prove that it's her in the photo and not another astronaut without detailed information from whoever shot the photo.
  
  It would be like me suing someone for using a picture of my house when all they used was picture of a completely unidentifiable brick wall.
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  - Jimm, 8 Oct 2010 @ 2:02pm
    
    Re: Re: ROFLMAO
    you are forgetting that it has been established that a photographer onboard the shuttle took the picture of *him*. it's the only one like that, so it's easy to establish that it is a photo of him, regardless whether you can see the face or not. he was the only one wearing *that* suit and *that* time in *that* situation.
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Eriq, 6 Oct 2010 @ 10:04am

The actual legal filing
Here...
http://thresq.hollywoodreporter.com/2010/10/tiny-astronaut-sues-big-musician.html
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Danny, 6 Oct 2010 @ 10:10am

Whe's Danny?
See that blue planet in the background? I am there, I am just very very small. Think I can get some publicity rights compensation out of this too?
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- Chuck Norris' Enemy (deceased) (profile), 6 Oct 2010 @ 10:32am
  
  Re: Whe's Danny?
  Hmmm...the shot looks like it is over the ocean. Any chance you could prove you were sailing that day?
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- Greg G, 6 Oct 2010 @ 10:40am
  
  Re: Whe's Danny?
  That was my first thought, as well.
  
  We all deserve a cut of the judgment if the Plaintiff prevails.
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  - Michael, 6 Oct 2010 @ 12:00pm
    
    Re: Re: Whe's Danny?
    I think I see a Google Street View car down there...
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- PRMan, 6 Oct 2010 @ 1:23pm
  
  Re: Whe's Danny?
  Touché
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Anonymous Coward, 6 Oct 2010 @ 10:31am

Actual Compliant
http://reporter.blogs.com/files/cacd-031010991534.pdf
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Christopher (profile), 6 Oct 2010 @ 10:52am

Public figure.
He's a public employee on a government mission. He needs to understand that the public funded his little trip, and STFU.

-C
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Shadow Six (profile), 6 Oct 2010 @ 10:58am

Jurisdiction?
Hmm I thought that, as in most cases, where the photo was taken has Jurisdiction? As in, if you photo some celeb in Fla. they have no case in California.

I think I remember reading that...
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- Anonymous Coward, 6 Oct 2010 @ 9:24pm
  
  Re: Jurisdiction?
  I'd imagine that in a case like this jurisdiction would be where the album (using the photo) was printed. Or else you could do something like wait for George Clooney to be filming in France, snap a picture of him, and then use in your ads in the US.
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- Anonymous Coward, 6 Oct 2010 @ 9:25pm
  
  Re: Jurisdiction?
  I'd imagine that in a case like this jurisdiction would be where the album (using the photo) was printed. Or else you could do something like wait for George Clooney to be filming in France, snap a picture of him, and then use in your ads in the US.
  [ link to this | view in chronology ]
FormerAC (profile), 6 Oct 2010 @ 10:58am

I knew astronuts tended to be arrogant pricks, but really?

"acted in concert with the other defendants with a design, and for the purpose, or injuring Plaintiff and unlawfully benefiting some or all Defendants"

So they sat down and had a meeting and decided to intentionally screw him over?

"36. Recognizing the tremendous value of McCandless' persona, Defendants have sought to link their business and products to him and thereby reap the benefits, for themselves, of the public's good will toward McCandless."

This gave me a good laugh. Sure, they decided to use that picture because of the public's good will toward him. Get over yourself you arrogant little shit.
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- FormerAC (profile), 6 Oct 2010 @ 11:06am
  
  Re:
  ON another note, I just downloaded a 640x480 jpg of the album cover (wait, do I owe him money for that?. At 640x480, the image on my 22" monitor is larger than the actual CD cover and McCandless himself is less than 1/2" tall. I am not able to make out patches, name plates, or any distinguishing marks, not even the camera he says is around his shoulder.
  
  I enlarged it 400% and was still unable to make out anything that would identify him. Beyond that size the image becomes to pix-elated that it becomes impossible to tell what color the suit is, let alone who is in it.
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- jc (profile), 6 Oct 2010 @ 1:33pm
  
  Re:
  "Recognizing the tremendous value of McCandless' persona"
  
  I have no idea who the hell this astronaut is ... but at least now I know he has a HUGE ego.
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  - Ilfar, 8 Oct 2010 @ 5:37pm
    
    Re: Re:
    That's not earth in the background there, that's his ego... Maybe that's how he thinks everyone recognises him?
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- Phil, 6 Oct 2010 @ 6:14pm
  
  Re:
  blah, blah...acted in concert.... injuring Plaintiff.... unlawfully benefiting...public's good will...blah, blah, blah
  
  [ link to this | view in chronology ]
- Phil, 6 Oct 2010 @ 6:17pm
  
  Re:
  Almost certainly, the "Plaintiff" never said any of the words in this complaint. This suit very likely never would have happened without a lawyer telling him "You know... You stand to make some money since they never asked your permission to use your picture." The lawyer took it all from there, and the words in that complaint are lawyers words, designed to satisfy the lawyer's objectives.
  
  Why can't people who are bright and talented find something more productive to do with themselves?
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Joe, 6 Oct 2010 @ 11:40am

Publicity for Dido!
Well, at least he's giving her some publicity. I'm going over to Amazon right now to listen to the samples from this album.
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wallow-T, 6 Oct 2010 @ 12:14pm

The issue has come up before in the context of postage stamps. The rule is that no living person is to be depicted on a USA postage stamp. However, there have been pictures of suited astronauts on stamps honoring the first American spacewalk, the first steps on the moon, etc. etc. The argument at the time was that it was the achievement which was being honored by the stamp, not the individual astronaut -- whose likeness was invisible inside the uniform of the space suit and helmet.
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TweetDeckTV (profile), 6 Oct 2010 @ 12:15pm

Dildo
Bruce... You have just succeeded in giving Dido a lot of free press. Nasa states: If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person. Nice job, Bruce...have a cigar. http://twitpic.com/2v6yex/full
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- Mike Masnick (profile), 6 Oct 2010 @ 2:21pm
  
  Re: Dildo
  Nasa states: If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person.
  
  Note the *may* infringe. It is not necessarily the case, and I think Dido et al have a pretty strong case in response.
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Dave92f1 (profile), 6 Oct 2010 @ 12:49pm

It's a picture of US government property
It's a photo of a NASA-owned spacesuit. Anybody could be in there. Or nobody.
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Toby, 6 Oct 2010 @ 7:24pm

overlawyered.com
at least now I know he has a HUGE ego.
...and is apparently having trouble making rent.
Almost certainly, the "Plaintiff" never said any of the words in this complaint
But he signed off on it. He's responsible for it.
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Anonymouse, 6 Oct 2010 @ 7:51pm

photo
Maybe they should just put the little black bar over his eyes so you can't recognize him! :-)
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Hugo Rabson, 6 Oct 2010 @ 8:07pm

Wikipedia
The document cites Wikipedia (#41). 'Nuff said.
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Ed H., 6 Oct 2010 @ 8:30pm

"If a recognizable person appears..."
To quote NASA's Copyright Notification page:
If a recognizable person appears in a photograph, use for commercial purposes may infringe a right of privacy or publicity and permission should be obtained from the recognizable person.

I would argue that an astronaut in a space suit with a mirrored visor is *COMPLETELY* unrecognizable. There is no possible way that anyone could prove that the person inside that suit is the astronaut in question.

Here is NASA's page for the photo in question:

http://grin.hq.nasa.gov/ABSTRACTS/GPN-2000-001087.html

Here is a MUCH higher resolution photo of (supposedly) the same astronaut in an MMU, taken a day earlier:

http://grin.hq.nasa.gov/ABSTRACTS/GPN-2000-001156.html

Even on that one, it is impossible to identify the astronaut, as the visor is completely mirrored, and space suits do not have visible name tags on them. (This second one is probably the most famous "astronaut floating free in space" photograph ever; and has been used commercially *MANY* times.)

Hell, I bet the plaintiff didn't even know it was a picture of him for a long time.
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- Kailyn, 9 Jul 2012 @ 9:13am
  
  Re: "If a recognizable person appears..."
  The pictures are different. If you look at the placement of the feet and slant of the body to the official NASA photo. They are not the same! Is there even a body in there?
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Jamie, 6 Oct 2010 @ 10:07pm

read fifth claim
Yes, I don't think he should be entitled to anything either, but if anyone bothered to read the whole complaint, they'd see that the "Fifth Claim for Relief" states that the album producers actually did agree to pay him some money for his image/permission. He states then that they reneged on the contract. I'd say this is more about a broken contract than an outright money grab.
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Eric James, 6 Oct 2010 @ 10:42pm

He has no rights
The photo in question was taken using American Taxpayer dollars while working in the employee of US Government. Any pictures taken during his employee belong to the American Taxpayers and he obviously had no expectation of privacy during the misson. If any photo's exist of him taking a dump a freedom of information request would make anyone able to use those pictures. Period!!! Give me a break.
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relliker, 7 Oct 2010 @ 12:16am

Can't claim.
He was photographed in a "public place". He can't claim any violation unless he owns the property (i.e. the vacuum).
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Stiggle, 7 Oct 2010 @ 3:09am

What rights?
NASA's own copyright notification states:
"It is unlawful to falsely claim copyright or other rights in NASA material. "

So McCandless is unable to able to claim 'other rights' on NASA's picture.
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M4rr0s, 7 Oct 2010 @ 3:58am

I think the only way they would have a case is if they could somehow prove that McCandless is identifiable in the picture. Which I'm sure will be the angle the lawyers will take.
Nasa states: If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person
It sounds like McCandless is quite a narcissistic person. He seems to think he is very important and known - when in fact I think its a small minority of people that could identify him in the picture. Couldn't I cut him out and photoshop a different tiny astronaut in? I think thats why they made the over the shoulder camera comment. Just a very odd case, with no clear objective other than case. Write this one off to greed?
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sulfide, 7 Oct 2010 @ 5:24am

Now we know he's a true american
Legal action against anyone and everyone for any reason what so ever, even if it's completely stupid! You go man! Or how about you go get a life :(
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Taylor, 7 Oct 2010 @ 6:37am

Getty's License is Clear - No CD's or DVD's
Well - I did go to Getty Images and the license for this image states it can't be used on CD's DVD' Video, Etc. and should only be used for Editorial use. http://www.gettyimages.com/Price/PriceRMPopup.aspx?ImageIDs=3240511&CartIDs=&Source= adp&BrandIDs=526&IsPriced=0 I guess Sony marketing should have looked into that. Not Dido's responsibility or Getty Images.
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Roger Fierry, 7 Oct 2010 @ 7:20am

actually you can not...
...just take a picture, and do what ever you want. Dido and her producer are making money with that album cover. How can anybody claim the photo owner, NASA, or the astronaut has no right to it? I now exactly who is he, from the other hand I dont give to much attention who is Dido. Will you be happy is somebody will take her music and do whatever claiming "it shall be public" ?!
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William Harrison, 7 Oct 2010 @ 9:58am

Lol
Alex, I'll take washed up nobodys for $500.

Grats Dido on the bump in album sales
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darryl, 7 Oct 2010 @ 10:04am

So its ok to rip someone else off as long as its another American !
Someone should write a blockbuster movie, that will be very popular and makes millions of dollars, then they should use Dido's music for all their sound tracks, and make lots of profit from her work. But make sure they dont pay, or acknowledge her efforts.

After all, its so much easier to steal something you want than to do it yourself.

And if you guys honestly believe that because its government funded the results of that funding are public owned or belong in the public domain.

You think the technology the US governemt developes with your tax money is being made freely available to anyone ?

NO ofcourse not..

What if this Dido person was not from the US, would it be bad then that US tax payers are paying for someone else who did not pay tax in your country to benifit from something that cost you collectively quite a bit of money ?

Oh, but its another American, so its ok to screw over your countrymen, because you all get screwed.

Once again, this is just another example of something trying to take advantage of the works of others, with no credit given to the original artist.

Im sure Dido would be just as upset if it was done to her, with her works.

Im not from the US, so if I used that photo, and as I do not pay US taxes would that be OK ?

No it would not, just as its not ok for you to expect a right to anything producted by taxpayers money.

One day you might work out the world does not work that way, and it would really suck if it did.

You dont pay taxes to give you a right to anything you think tax payer money goes too. Really that is quite insane thinking.

The government has all kinds of personal information about you, would you like all that information to be in the public domain ?

If you follow your ill-logic, that would be what is expected after all, the taxpayer pays for the gathering of that information. So why not make it all public ?

No, the world does not work that way.

Are you that type of person, that says when you are pulled over by the police for speeding, "I pay my taxes, so therefore im your boss". To the cop..

I really hope so. LOL

No you pay taxes to keep social order, for services and advancement of your country. Its not a bank where you pay in and after awile you can decide what from them you want to take for yourself..

I wonder sometimes if you guys have actually experienced the REAL WORLD. Or just live in some fantasy land where everything is done just for your personal pleasure and confort ?

Little wonder the US is struggling so badly these days !.
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- Anonymous Coward, 10 Oct 2010 @ 10:22am
  
  Re: So its ok to rip someone else off as long as its another American !
  Wow, big jump there? Your cognitive abilities seem to be lacking.
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Peter, 7 Oct 2010 @ 10:05am

What a total douchebag. NASA should have left him in space or better yet, fired him off in the direction of the sun.
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Grillo, 7 Oct 2010 @ 10:06am

I use that image too
It's funny but I use the same picture in a poem that I wrote in one of my blogs.
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Gman, 7 Oct 2010 @ 12:43pm

Smithsonian article from 2005
funny - he didn't seem to think he was identifiable in the image 5 years ago when he talked to the Smithsonian. I wonder what changed his mind? maybe his 401K took a hit in the past couple of years.

"The subject's anonymity, he says, is its best feature: "I have the sun visor down, so you can't see my face, and that means it could be anybody in there. It's sort of a representation not of Bruce McCandless, but mankind."
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Geoff Strickler, 7 Oct 2010 @ 2:34pm

Douchebag?
I'm wondering who is the bigger douchebag? Someone who would sue over photo in which no part of his face of body is visible, he has no visible identifying marks, and his entire image is a tiny part of the picture, and the photo is almost certainly public domain, or the lawyer who would file the suit for him.

Just my opinion.
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Mitch Featherston, 7 Oct 2010 @ 4:34pm

Hoped it was a joke
I can't even begin to take this action seriously. It's not a joke, but it should be. How can the astronaut think he's going to win this case???
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Jesper Fermgård, 7 Oct 2010 @ 5:26pm

Sue them all!
30 years from now i'm going to be the at the same age as Bruce.
Please kill me if greed and stupidity makes my day!
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Brian, 13 Oct 2010 @ 3:09pm

I'd love it if NASA sued this dirtbag.
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