Suffering for your cover art

Dido, the British chanteuse best known for singing about cold tea on an Eminem track back in 2000, has been sued by former NASA astronaut Bruce McCandless – the first astronaut to make an untied or untethered free flight in space – for using his 1984 space flight picture for the cover of her 2008 album “Safe Trip Home”.

Dido Safe Trip Home.jpeg

In a complaint filed earlier this month in the US federal court seeking unspecified damages, McCandless complained he never gave permission for Dido to use the photograph that shows him “free flying” in space.

Another copyright infringement claim, we hear you ask?  Not this time!  The photograph is owned by NASA and it is a US Government policy that all NASA pictures are in the public domain, so the photograph is not protected by copyright.

What is the action then?  The lawsuit is claiming infringement of McCandless’s persona.  Under United States law, the use of a person’s image or likeness (or the right to publicity) is covered under one of the four basic rights to privacy.

If McCandless can prove that the use of his image resulted in increased sales of Dido’s album, the defendants (the lawsuit also names Sony Music Entertainment and Getty Images, amongst others) can be ordered to compensate McCandless for using his image to endorse the album without permission. 

Leaving aside the extent to which a US court is likely to give weight to protection of likeness, McCandless may struggle to convince a court that he has a likeness to protect.  Other than serious space fans, most people may not recognise the image as being one of the claimant.  For McCandless to succeed, the court would need to hold that McCandless is identifiable in the image, or, further, that the general public will see the album and purchase it because they believe McCandless endorsed it.

But Dido isn’t the only radio star facing a lawsuit over their chosen cover art.  In July this year Vampire Weekend was sued by Kristen Kennis, who’s 1983 image graces the cover of their latest album, “Contra”.

Cover contra.jpg

The image was also used to spearhead a marketing campaign to promote the album and the tour that followed.  Kennis is seeking $2 million in damages from the band, the photographer and the record company, again claiming unauthorised use of her photo.  This lawsuit is more complicated than Dido’s however, in that Kennis is claiming her signature was forged on the photographic release that allowed the band to use the photo.

We will follow both claims and update you with developments.  It will be interesting to read the decision of the courts, but at least one lesson to take away is: ask before you use a person’s image to promote your product.

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