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Smile For The Cameras

a slingshot-style ride seen against a twilight sky with trees.
A slingshot ride in St. Paul, Minn. Photo by Flickr user m01229.

Last week I paid $25 to get fired into the sky on a giant slingshot. Then I paid $10 to do it again, since second rides are discounted if both occupants of the two-seat attraction agree to immediately take another ride.

You’ll have to take my word for it, though. While I did not mind shelling out the cash for the ride itself, I saw no need to buy the accompanying video that the attraction’s operator thoughtfully – and mandatorily – created on my behalf. My social media followers, and there are not very many of them, were thus deprived of a record of my experience. The attraction operator will only post images and videos of customers who buy a thumb drive with the recording, to prevent free-riding on the not-so-free ride in Daytona Beach, Florida.

This struck me as an interesting paradox. A sign advised me as I boarded that by riding the attraction, I was consenting to being photographed and recorded. But I had no right to the resulting recordings unless I paid for them – and by paying for them, I was consenting to allow the ride operator to use my image for its own commercial purposes without paying me a nickel.

This may strike some people as laissez-faire capitalism at work. It may strike others as simply unfair. But nobody really needs to be fired 35 stories into the sky on a giant slingshot. Not everybody really wants to be fired up there, either. For what it’s worth, though, the experience is fun and also provides a great view.

Police officer David Guzman has some pretty strong views on what constitutes fair use of his photograph. Guzman, who works in the Miami-Dade County community of Golden Beach, Florida, is suing the London-based company that operates UniformDating.com. The site, a sister site of Cupid.com, specializes in finding a match for single military members and first responders.

The thing is, Guzman is not single. According to the South Florida Sun Sentinel, he was not happy about having to answer to his wife when she inquired why his photo and a suggestive comment (“Bulletproof vest? Nah, it’s all muscle”) appeared in an Instagram advertisement for the site. His photo, attached to the name “Jason,” also appeared in Facebook ads for the dating service.

Guzman says he has never used UniformDating.com. He alleges that the company scraped his photo from his Facebook page and used it without his permission. NSI Holdings Limited, the company in question, reportedly countered that when it looked into Guzman’s complaint, it found a registered account connected to Guzman’s name and his correct birth date. “The information available to NSI Holdings indicates that [Guzman] himself ― or someone well acquainted with [him] ― created this user profile,” the company said in its filing to have Guzman’s case dismissed. UniformDating.com’s terms of use grant NSI royalty-free rights to use photos and other information from registered users for marketing purposes. NSI noted that it found whoever created the profile in Guzman’s name visited the site only once. It suggested that creating the profile was what it termed a “momentary dalliance.”

Maybe, but maybe not. I wonder if the site’s owners are familiar with the terms “practical joke” or “revenge porn.” True, there is nothing pornographic about Guzman’s image. But a company that relies on nothing more than an upload and a few clicks for a legal grant of rights is still taking a certain risk. For now, the legal battle is set to continue. Guzman says the ads are still running, while NSI claims they have been removed.

Guzman’s predicament is indicative of a growing problem. Social media companies and other online communities encourage us to share images of and information about our lives. But some users eventually discover, to their dismay, that these sites are using that content in ways they didn’t intend. While sites may cover the uses of uploaded photos in a dense terms of service agreement, reputable services shouldn’t want to spring this sort of surprise on their users.

The website my company maintains for our entertainment and sports practice features the photos and names of some of our clients. They grant us permission to use their likenesses and to disclose that they are our clients when they retain us as their business or personal managers. This is typical in the industry, and it’s hardly a problem for performers who are public figures anyway. In contrast, our clients who are business executives, entrepreneurs or retirees expect their privacy to be respected, which we do, of course. We don't even give out their names as references for other prospective clients without asking first – each time, personally.

A few days after my slingshot ride, I attended the Universal Studios and Islands of Adventure theme park with some friends visiting Florida from out of state. Our photos were taken on virtually every ride – and immediately offered to us for purchase as we made the mandatory exits through the gift shops. We declined. At the NASA space complex at Cape Canaveral, you can’t even board the tour buses without first stopping for a mandatory group photo on the same terms.

I imagine most of us assume these images are discarded soon after being purchased or declined, but I don’t know that for certain. I don’t care, either. I might, though, if I were the sort of guy who would visit a theme park with someone he doesn’t want his spouse to know about.

The right to control one’s own image and publicity evolved in the law during the first part of the 20th century. It may be time for a legislative update to set some ground rules for the 21st, before we find that going to the supermarket constitutes consent to be featured among its weekly specials.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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