One of the three major political parties of Malaysia may have to go to court to defend itself against charges of unauthorized image use. The issues raised by the case, which concerns a campaign in last month's general election, are commonplace in the global stock licensing industry. It echoes those of several other ongoing legal proceedings.
Democratic Action Party member Tan Lian Hock plans to pursue legal action against the Malaysian Chinese Association for the allegedly illegal use of his photograph on an MCA banner. The Star, Malaysia's English-language newspaper, reported last week that Lian Hock claims he holds the copyright to the 7-year-old image and has never authorized the MCA to use it for political purposes.
The photo depicts Lian Hock's daughter and in-laws. The father-in-law, also a DAP member and past candidate for a state seat, claims "great embarrassment" at the use of his likeness to promote his party's chief political rival.
The MCA responded claims the photographer misrepresented the situation. The party's head of publicity Lee Wei Kiat told the press that MCA had the right to use the photo, because Lian Hock submitted it to an MCA-organized photo contest. As per the rules of this contest, which was held last year and awarded Lian Hock four awards and several other prizes, all submissions became the property of its organizers and could be reproduced, published and exhibited for promotional purposes.
Lian Hock refused MCA's demand for a public apology. While the MCA claims the photographer signed and agreed to the contest's terms of use, Lian Hock says he did not sign anything or otherwise give permission for the photo's use.
Political agenda?
The MCA has accused Lian Hock of having a political agenda, similar to that of a teenage Barack Obama supporter, who recently spoke to U.S. media after stock footage of her as a baby was used in a Hillary Clinton TV ad. If political maneuvering, as opposed to protecting a photographer's intellectual property, is the real reason behind Lian Hock's public outrage, he is unlikely to pursue the matter further.
Copyright Ownership
However fledgling, Malaysia is a democracy where many systems are based on the U.K. If this case were to end up in court, the first issue to be decided would be copyright ownership. If Lian Hock entered an MCA contest with this photo, he may not have had to physically sign anything to transfer copyright ownership. Many contests accept submissions online, where uploading images automatically means accepting the organizers' terms.
Cases of uninformed amateurs giving away all rights to their images abound the world over. Contests that demand all-rights transfers are widely opposed by professional photographers and organizations, such as Pro-Imaging, a membership organization that campaigns globally for equitable competition-entry terms. However, such contests are not illegal and remain an at-will arrangement between their organizers and participants. If the MCA became the copyright owner in such a fashion, Lian Hock's case would not be successful.
Right of Publicity
The photographer's parents-in-law may have better grounds to pursue the MCA. Even if the party is determined to be the copyright holder, using a person's likeness in advertising requires a model release in most Western countries. Given the embarrassment of Lian Hock's in-laws, it is highly likely that no release has been sought or executed by the MCA.
The U.S. legal system protects an individual's right of publicity. Many European countries have varying strengths of privacy laws. Still, many of these are relatively new, most focus on the rights of celebrities; legal consensus is lacking even among industrialized countries. As such, the outcome of a right-of-publicity case is not easy to predict.
Currently pending in U.S. courts is a case against Virgin Mobile Australia, which used a Flickr-hosted photo of a young girl without obtaining a model release. The eventual decision in this case may establish an important legal precedent for how such cases are handled for non-celebrities.