In Which Krissy’s Picture is Stolen for a Facebook Advertisement

From a Twitter feed I just posted about this, archiving here: 

1. So, a friend on Facebook pinged me with this ad she saw there for a talcum powder lawsuit scheme and said, “isn’t that Krissy?” And indeed, it is — and the picture strongly implies that she’s holding a settlement check.

This is not true, and also, the photo was stolen.

2. The picture, which I took, is actually Krissy holding up our last mortgage check. I wrote a piece about that moment here:

The check is going out, not coming in. Krissy’s happy because we paid off the mortgage, not because she’s gotten a settlement.

3. Also for the record, Krissy is not now nor has even been a party to a suit regarding baby/talcum powder.

4. So how did Krissy’s picture end up on this ad? On a hunch, I typed “Woman Holding Check” into Google Image Search, and well, there she was. Not right at the top, but not that far down the page, either. The jackass making the ad probably made a similar search.

5. Now, obviously by this point, neither I nor Krissy consented to the use of this photo in this ad. Nor is this photo public domain, under Creative Commons, or legally licensed. I took it and retain the copyright to it. Its use is, flat out, unauthorized and illegal.

6. (This use is also definitely not covered under “fair use.”)

7. Leaving aside any strictly legal issues regarding the photo’s use, there are the issues that a) Krissy appears to be endorsing the site the ad links to, b) people who know Krissy might assume the settlement check means she is/was ill, specifically with cancer (she’s not).

8. The person bringing the ad to my attention is a friend of Krissy’s and I had to assure her that Krissy wasn’t part of a suit (with everything that implies). It seems careless and cruel on the part of the ad maker to use that photo and to make people actually worry.

9. I also can’t imagine an ad using unauthorized and illegally obtained photos for commercial purposes actually conforms to Facebook’s advertising policies. It would be nice for the service to have better intake protocols to keep this from happening in the future.

10. tl;dr:

a) A picture of Krissy I took was used in a facebook baby powder lawsuit ad;

b) Neither of us consented to its use;

c) Krissy was not party to a suit/settlement and is physically fine;

d) The ad maker/people using the ad are scum;

e) Facebook, do better.


49 Comments on “In Which Krissy’s Picture is Stolen for a Facebook Advertisement”

  1. there aren’t really any damages that would make it worth suing. basic thing to do is a DMCA takedown. easy to do on your own.

  2. It’s sad that this is part of life on the internet “personna” I am now fighting off a scammer through craigslist. See NY Times article that predicts the demise of the social media as we know it today.

  3. Agree with Jared on the DMCA takedown. We’ve gotten some in the past on the forums I’m an admin on – they are Star Wars related and with the new film coming up some people posted images they shouldn’t have. Guess who got to take them down?

  4. Sorry this happened. Seems a DMCA takedown notice is in order. Not sure chasing after the advertiser is going to be worth the time and effort, unfortunately.

  5. Actually there are significant damages for use in this case (for both John’s copyright violation and Krissy for model use in an unauthorized campaign). The copyright violation alone could be significant, the model use I would have to check the relevant laws and industry standards. For the copyright claim you may remember about a decade ago when the stock photo agencies went after unauthorized uses, individual blogs were being sued for >$200,000 for use (IIRC, a settlement was reached where not-for-profit blogs could continue to use images within certain parameters and with attribution). But yes, both the use of John’s photo without his consent is actionable for a significant amount, and for the use of Krissy as a model in a campaign for which she did not consent for her image to be used. If you doubt this, just look at any photo licensing site (shutterstock, comstock, istockphoto, etc) and the lengthy language about use even for “royalty free” images (especially those with identifiable individuals).

    And as a professional graphic designer, let me reiterate Do Not Use Images from Google Searches without permission.

  6. The problem with DMCA takedown notices is that they are not all that effective, especially with rogue advertisers and rogue websites. I worked as a professional photographer for many years and, to this day, I find copyrighted photos posted without authorization on websites. I contact them and some are truly apologetic and remove the images after explaining that they didn’t realize the photos were copyrighted. Others have just ignored me. When DMCA takedown notices are filed, they occasionally yield results but are more often ineffective. Also, the offending photo can be taken down and then simply reposted, which has occurred at times.

    A better solution going forward is to watermark any photos with copyright information before posting them. Do this in such a way that the notice cannot be removed, obscured or edited out without ruining the picture. That is more of a nuisance upfront, but it usually results in the rogue websites/advertisers looking elsewhere for a different photo instead of stealing our copyrighted photos.

  7. Condolences to Krissy for any annoyance or such this has caused.

    If we’re going with Steve Buchheit’s theme of things that might be actionable without going into actual legal advice, there’s also an argument that Krissy might be well enough known via being the wife of “the destroyer of everything that is good about sci-fi everTM”, a for there to be a possible defamation aspect: does connecting her to a mass lawsuit or cancer damage her reputation &c.?

    Of course, having practised in contentious law for most of my working life, my general perspective is that questions of whether something is actionable are much more fun as thought experiments; the first question in real life is “would it be worth the vast and pervasive irk that one has to suffer through even if one wins?”.

  8. Ask to get paid for the use of her image, she can officially add modeling to her resume! as long as the sum of money she could get justifies the aggravation you already endured. Then provide them with a “proper” photo of her, holding a check, but altered enough that she might not be recognized. just go play dumb buggers with the idiots! Might even be fun!

  9. @Shava: That is only true if she posted the photo in such an account. Just having a facebook account does not give Facebook the right to use any photos of you that it may find anywhere. In addition, that permission is to Facebook, not third parties.

  10. Should we start stockpiling torches & pitchforks so we can storm their HQ, or are you going to bring the Wrath of Scalzi down upon them?

  11. I don’t know why, but all the images in the post are coming up as broken links. In all the other posts on Whatever I can see the images? Does that mean lawyers are involved?

  12. This ad company is garbage and Facebook is garbage for refusing to evaluate any and all advertising in the name of sucking up as many dollars as possible. Mostly people just suck. Sorry, I may be a bit angry today. Sucks that you have to deal with this.

  13. or are you going to bring the Wrath of Scalzi down upon them?

    I sense the imminent descent of the Mallet of (un)Loving Correction.

  14. Yikes! Krissy has ALL my sympathies!

    I’ve had my picture stolen before, but not for profit. A man reached out to me to let me know he’d been close internet friends with a lady living abroad in China… who sent him my public images as “herself”. She’d stopped messaging, had a history of depression, and he was worried about her — and wanting reassurance. Maybe hoping I would know the person?

    I don’t know what recourse I have or what the term would IS for the person whose images are USED to catfish. But it’s an uncomfortable feeling. He still occasionally says “hi” to me, clearly missing his friend and wishing I were who he thought I was.

  15. One wonders whether the lawyer(s) behind the “settlement” had considered their ethical obligations regarding truthful and non-misleading communications with the public, both in general+ and specifically regarding settlement. And, more to the point, whether their regulatory bar authorities might be interested, most obviously concerning Rules 4.1, 4.3, and 4.4. Of course, we can trust those lawyers to have followed their self-reporting obligations for ethical lapses under rules 8.1, 8.3, and 8.4, can’t we?

    IF, of course, this isn’t a scam campaign having nothing to do with a real settlement. But it’s not like there are any of those on F*cebook.

    PS Under Rules 5.3 and 7.3, any lawyers actually involved are responsible for supervising anyone they’re hired, directly or indirecty, to do this communication… and are liable for any violations.

    + Yeah, lawyers tend not to do so well on this one.

  16. @steve_buchheit unless John registered the copyright for his image (a) he can’t sue for copyright infringement until he does, and (b) neither attorneys’ fees nor statutory damages are available for pre-registration infringement (with certain narrow exceptions). And even then the judgment might be worthless if you can’t track down any of the infringer’s assets. Krissy’s right of publicity rights vary by state, but again, you need to be able to locate a defendant and its assets to collect anything.

  17. As someone who curates a private, not-for-profit website dedicated only to providing quality information on a specific topic this strikes me as sheer careless not-give-a-fuckery on the part of both the advertiser and Facebook, and in a perfect world both would get SOME form of a spanking.

    The above-mentioned website accepts guest content provided by people with experience in the website’s topic area. Such folks are not always professionals as either writers or publishers. Sometimes the content they provide includes images. Under those circumstances I ask them to provide evidence that they have the image owner’s permission to a) use the image in conjunction with their text AND (this is IMPORTANT) b) display said image with their text on our site.

    More than once I’ve even helped them contact an image owner, sometimes in other parts of the world, to obtain said permissions. (FWIW, where the image is appropriate to the text and the content of our site I’ve never had anyone act like an asshole about being contacted and only had one refusal, the person was very nice about it. Obvs, where the image is patently INAPPROPRIATE to the content or site topic, I don’t even bother, just use my Godlike Editorial Powers to delete it and replace it with something we have the rights to.)

    That said, there are a LOT of images out there that seem to be “orphans”. It’s a tough call, sometimes. Generally, if the image involves a recognizable human being, the balance comes down on the side of “don’t use it.” If it’s clearly someone’s meticulously-produced (but, alas, unsigned and/or unlinked) artwork, again the balance comes down on “don’t use it.”

    OTOH, when the image is a relatively anonymized photo of a place or an object, one of those “meme” doodads flying free on the Toobz, etc., I may go ahead and use it after a good-faith effort to find the owner, which usually involves an email to the owner of the site I found it on, asking them for the owner’s contact info. Some of that correspondence has been amusing, but it’s frequently unanswered or unhelpful.

    There is a gray area for Photoshop mashups and meme-ifications I do with filters and multiple image elements culled from more than one source. Again, recognizable people, other than in an already public-domain source (advertisements, film trailers, book jackets, etc.) generally get filtered to unrecognizability.

    There will always be some gray areas. I’ve only once been asked to remove an image and I quickly did so and promptly apologized.

    If you’re not willing to do the admittedly very real work and time investment to take reasonable caution in using other peoples’ images, stay off the damn’ Intertoobz, kidz.

  18. This is why I never let pictures of myself get on the internet. Well that and the cameras keep breaking, and in one case spontaneously become sapient then running howling into the night in gibbering horror. I don’t take a great picture, unlike Krissy, who deserves better and also a cheque from the advertisers who stole her image for profit.

  19. I’m going to assume John has already reported this to Facebook. And chances are good that there are people who work at Facebook who read Whatever and hopefully one of them will go poke the folks in charge of the ads approval and get this taken down.

    But the biggest question that I don’t think we’ve grappled with is, how to prevent this from happening to people who aren’t world-renowned authors with massive internet followings? It’s all fine and good to say “Hey, FB, do better”, but there are literally tens of millions of ads on FB at any given time, in nearly every language. Humans can’t check it all. So how do you write programs to check that, say, pictures have appropriate copyright permissions?

    I have no idea, but it’s coming up again and again and eventually it will come to a head for all the big tech companies.

  20. I used to post on a bulletin-board type site a while back (like 7 or 8 years ago), and I would occasionally post a photo I had taken. Never of a recognizable human because reasons, but I would post cat photos, nature pictures and the like.

    Then I found one of my cat photos used on a different site. I had no idea how to get it taken down, so I just went through and deleted all the photos I had ever posted on the BB site, and I have never posted a photo online since.

    I do not have a face-book account. Never have, never will. I don’t twit, insta-thingie, or any of the other stuff that it seems like the world loves to do. And whenever anyone asks me why on earth I remain so stubbornly in the last century, I point to occurrences like this.

    I treasure my privacy, even though I know it is far from assured in this day and age. But with all the companies and individuals actively trying to mine my data, images and words, why make things easy for them by voluntarily putting personal information out there on the web for anyone to grab and make use of? I figure if they have to work harder to get my information, maybe they’ll go after someone whose data is easier to get.

    I am sorry this happened to you and Krissy, and I hope you are able to get the image taken off the ad and hopefully also off Google images. I don’t envy you the hassle, but I know you have the resources to succeed. Since I do not have those resources, I take the approach of just not putting stuff out there in the first place – but that’s not as viable an option for folks who need to use the web as a way to market themselves. Thankfully, old codgers like me don’t need to market anything, so I can be a curmudgeonly old Luddite about face-book and the rest.

  21. Assuming that there’s an actual discernable law firm behind the ad, I’d go ahead and make a complaint to the relevant state’s regulatory body for lawyers. That’s usually either the state supreme court or a state bar association. Because people are often put off by normal activities of lawyers, they sometimes assume that the regulatory bodies are toothless on issues of ethics. That’s not something you should assume, particularly when it comes to matters of practice management like this.

    Most states seem to online reporting forms.

  22. John, I know YOU don’t need the money, but there’s PLENTY of worthy charities that could use the money these folk are wasting by eating and sleeping indoors. So, why not sic a convenient lawyer on them and give all the proceeds to said charities? I bet some would do it pro bono.

  23. You can be confident that Facebook will do nothing. I quit that site many years ago. I urge anyone who wishes to control their data to do the same. Same goes for Google.

  24. Over here in the Netherlands a number of celebrities sued Facebook because their pictures were used in ads for Bitcoin scams. Several victims lost a lot of money, and the celebrities didn’t want to seem to endorse this. Neither did they like being contacted by people who blamed them for this.
    Facebook was ordered to stop these ads. Facebook is now appealing this decision…

  25. This sucks major moose testicles. Bring the hammer and smite those clowns. In all seriousness though, I don’t think FB will do much about it, whether you’re a somebody or a nobody, without a lawyer lightly breathing down their collective necks. I would suggest a two pronged attack though and go after the website as well.

  26. I’m somewhat of a casual reader here. But enough to see that you post an awful lot of personal and family information. Given the lawlessness of the Internet, I am a little surprised at your posts.

  27. My point is that any information posted by anyone on the general Internet, Facebook, Twitter and other platforms that I don’t even know about .. is information that others can easily glean and use for their own purposes. While such information might not really be officially ‘in the public domain’ .. my guess is that one would have a tough time legally challenging this sort of mis-use. But on the other hand, much personal information on all of us with any Internet activity is already there for the taking .. even though we did not explicitly post it. Thanks to Google, et al.

  28. John I was curious, on what steps are you taking, if any, to fix it? Which from comments in here stretches from doing nothing beyond this post to suing them for everything they have.

  29. Scalzi: “e) Facebook, do better.”

    When accused of profitting from selling political ads that contained lies, zuckerberg defended his money grubbing ways, saying: “I don’t think it’s right for private companies to censor politicians and the news.”

    Because stopping false advertising is “censorship” now, right?

    Asking facebook to do better is in the same realm as asking a psychopath to “think of the children”.

  30. And a commentor here, hng23, says:

    “And this is why I have not, nor will I ever join any iteration of social media.”

    hng23, you are here on social media, right now, today!

    John, when you say “my lawyer is on it” that’s all I need to hear. Good luck, and take Facebook for all you can, money is all those folk understand, and a lot of money will make a mark that they will remember. I know you don’t need more money, but it is the only language they actually care about.

    At least Krissy looks good in the stolen photo!

  31. For J R above, disagreeing with hng23, to say that blogs are social media, I disagree with you.

    Why? Because blogs predate social media. Hence blog use has really fallen off: The blog high tide was years ago. (I remember when folks “had to” blog every day, lest their readers abandon them in droves)

    When our host noted this fact (as he has more than once) a commenter said that while those with nothing to say have left blogs for social media, those few with lots to say are still blogging… although, like our host, they may call themselves writers or essayists rather than bloggers. The late Roger Ebert called his blog a journal. (Perhaps because the word “essay” can put people to sleep)

  32. That’s such a crap thing to happen; glad to hear you’ve got your lawyer on it and I hope it’s resolved to your satisfaction.

    Possibly a completely unrelated issue and one that you already have covered, but thought I’d mention it just in case. A while back Facebook very quietly introduced a thing where pictures of you can be used in ads shown to your friends. If you want to stop that, you have to delve into privacy settings and opt out. This might have come about differently, but it’s another possible way of looking like you’re endorsing something you’re not.

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