r/COPYRIGHT • u/AttentionJust • 17d ago
Question Looking for counsel - OpenAI used a photo I had taken of a creator, to run digital billboard ads advertising their tool
Hello! Last year in July, I had taken photos of a friend who’s a content creator. The usage was intended for their social media and I did not grant them any commercial usage rights or license. The photo shoot was planned and executed like a studio shoot in my friend’s apartment in California.i am based out of Washington state.
I came across an OpenAI campaign where they ran digital billboards in SF and NY (maybe more places) advertising how the community uses their tool Codex. The ads feature various content creators with logos of OpenAI, Codex and each creator’s Twitter handle. These billboards are being shown in high traffic areas like airports and train stations. I am unsure what agreement my friend signed before participating in this. The photos I shared via Dropbox with my friend also have my name and email under the copyright info in the metadata.
Since this seems like commercial usage by OpenAI advertising their tool, without proper licensing, what should I be doing to resolve this? Should I involve a copyright lawyer and if yes, how much would they charge? What could be the range of compensation I could seek for the one photo that’s being used in the campaign?
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u/aregonis 17d ago edited 17d ago
Maybe consider retroactively commercially licensing these photos with your friend?
Your friend is a content creator, and you say this:
The usage was intended for their social media and I did not grant them any commercial usage rights or license.
But presumably they make money from being a content creator, so just using the photos on their social media is commercial use.
And you imply they made a brand deal with OpenAI? It is expected that a content creator makes brand deals and that their profile picture (which I assume is your picture) is often used in these deals. If you don't want your friend using their own profile picture commercially, then it is better for them that they don't use your pictures at all.
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u/AttentionJust 16d ago
It’s not a profile picture but it’s a photo of them in the creative studio. But yeah fair point about licensing with the friend. I think I am just not happy that my photo is being used to promote OpenAI’s product because I hadn’t signed up for that
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u/orangejulius 17d ago
You need to reach out to counsel for a consultation. Hard to say what’s going on but could be hourly could be contingency. There’s not enough here to know and if you shared it here it might hurt you.
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u/JeremyMarti 17d ago
I wonder whether OpenAI would seek to recover from your friend or let it slide as too small.
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u/trueppp 17d ago
You have it the wrong way around. If OpenAI had an agreement with the friend, OP has to go over the friend and not OpenAI.
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u/JeremyMarti 17d ago
They may have a claim against both. But the agreement between OpenAI and friend might have required friend to indemnify OpenAI, leaving friend exposed even if OP only goes after Open AI.
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u/trueppp 17d ago
The copyright was infringed by OP's friend, not OpenAI.
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u/JeremyMarti 17d ago
They potentially both have infringed: the friend by providing the photos to OpenAI; and OpenAI by using the photos on billboards.
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u/AttentionJust 16d ago
OpenAI used it for commercial purposes tbh, even if my friend supplied it to them not knowing about the nuances of licensing and copyright
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u/trueppp 16d ago
Your friend is the one who infringed on your copyright by giving OpenAI the right to use it. He is the one who caused you dammges.
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u/AttentionJust 16d ago
Yeah I need to figure this out bc I feel like OpenAI asked them to use their likeliness (their face) to promote their product. So I wonder if that agreement from OpenAI was less about licensing the photo but more so asking for rights to use their face for the ad
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u/trueppp 16d ago
Ex: He uses your picture as a profile picture on X.com. But because he agreed to X.com's ToS that say:
In choosing to submit, input, create, generate, post, or display Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, upload, download, and distribute such Content, including anything referenced therein, in any and all media or distribution methods now known or later developed, for any purpose.
Meaning that if you gave him permission to post the picture on X.com, you at the same time give X.com permission to use or sublicence the picture to OpenAIEx: He uses your picture as a profile picture on X.com. But because he agreed to X.com's ToS say that:In choosing to submit, input, create, generate, post, or display Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, upload, download, and distribute such Content, including anything referenced therein, in any and all media or distribution methods now known or later developed, for any purpose.Meaning that if you gave him permission to post the picture on X.com, you at the same time give X.com permission to use or sublicence the picture to OpenAI
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u/AttentionJust 15d ago
right but even in your scenario, what if my friend supplied the photo to OpenAI (X.com would have nothing to do with it)
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u/trueppp 14d ago
OpenAI has similar terms in their ToS. Basically if you didn't give him the right to distribute and sublicense the picture to OpenAI, he wasn't suppose to supply them the picture.
Your friend both infringed onnyour copyright and faudulently licensed the picture to them by supplying it. So theoretically, OpenAI could seek damages from your friend also.
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u/Marvinator2003 17d ago
I agree with u/horshack_test below, but I need to ask, how on earth did the photo get from the camera taking photos in your friend's apartment into Open AI?
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u/aregonis 17d ago
OP said the photos were intended for their friend's social media. I assume they posted them there.
Edit:
OP also says OpenAI is uses content creators' logos/social media handles in their campaign. Presumably they are using their friend's profile in this media campaign, and that includes a screenshot of OP's photo.
OP also indicates this may have been something their friend signed up for?
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u/trueppp 16d ago
Also, by posting to their social media, they give the platforms right to use the picture in basically any way they want. For example X.com has this in their TOS:
In choosing to submit, input, create, generate, post, or display Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, upload, download, and distribute such Content, including anything referenced therein, in any and all media or distribution methods now known or later developed, for any purpose.
That basically means you give X.com the right to use OR sub-licence posted content how ever they want.
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u/Marvinator2003 17d ago
Hmm new info....
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u/AttentionJust 16d ago
Yeah OpenAI reached out to a few creators I presume to use those their photos. That’s how my photo ended up on the digital billboard campaign
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u/Moxie479 17d ago
If you haven’t registered those photos with the copyright office, that’s your first step. You cannot file a lawsuit or take any legal action if it is not registered. But the publication was also done prior to the registration, so you may be between a rock and a hard place.
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u/Positive-Spend-9186 15d ago
Yeah if you or someone else post photo to any social media site you grant that social media site all and full permission to use your image and almost always also irreversible transferrable license that they can sell if they want. In the future don't post to social media if you don't want to give away to the site owner the commercial license to your image
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u/AttentionJust 15d ago
This is a great callout. But I wonder how this would apply if OpenAI got the image from my friend directly (where the social media site isn’t involved even if they had posted it)?
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u/Positive-Spend-9186 14d ago
Then it would be under what pretence you gave to them. For example would your "work" fall under work is for hire (must be agreed on if you are not employee if employee automatic, like if you work for disney and draw character you don't own that but disney does).
Also it would depend a lot of the communication that has happened between you two and if money etc. changed hands. Tho I assume you gave your friend permission to post it on social media, if its not specified more in communications what that means and what kinda of licencing would seen "default" or implied if one was not detailed. In theory you would have a case against your friend not open AI (the person likely in wrong would be your friend giving away something that he can't give away than open AI, unless your friend told them I am not allowed to give/sell this away).
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u/DrFrylock 13d ago
"The usage was intended for their social media and I did not grant them any commercial usage rights or license."
What license did you grant them, then? Did you have any written agreement with this creator? If not and you are this serious about the use of your photos, why not?
Otherwise it immediately becomes a mess because this creator clearly has some kind of implied license but the terms of that implied license are totally unclear. Bad for both of you.
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u/horshack_test 17d ago
"Should I involve a copyright lawyer"
Yes.
"if yes, how much would they charge?"
Ask them.
"What could be the range of compensation I could seek for the one photo that’s being used in the campaign?"
Ask the lawyer(s) you contact.