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  Astronaut Bruce McCandless sues pop singer Dido claiming unauthorized use of photo (Page 1)

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Author Topic:   Astronaut Bruce McCandless sues pop singer Dido claiming unauthorized use of photo
Robert Pearlman
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posted 10-02-2010 12:49 PM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
Bloomberg Businessweek:
Astronaut McCandless Sues Singer Dido Over 'Free Flying' Photo
Former NASA astronaut Bruce McCandless sued pop singer Dido for what he said was unauthorized use of a photo of his 1984 space flight for an album cover.

McCandless said in a complaint filed Sept. 30 in federal court in Los Angeles that he never gave permission for Dido to use the photograph that shows him "free flying" about 320 feet away from the space shuttle Challenger. The photograph is used on the cover of Dido's 2008 album "Safe Trip Home."


Credit: Dido/Sony Music Entertainment

The lawsuit, which seeks unspecified damages, also names Sony Corp.'s Sony Music Entertainment and Getty Images Inc. as defendants. McCandless said in the complaint that Sony was informed as early as June of last year that the use of his image was unauthorized...

The suit doesn't allege copyright infringement, only infringement of his persona.

NASA's image use policy states in part:
If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person's right of privacy or publicity, and permission should be obtained from the person.
According to his complaint, McCandless is identifiable in the photo because his "Feb. 7, 1984, flight remains the only occasion on which the manned maneuvering unit has been flown to such a significant distance from a shuttle and allowed such photographs to be taken."

[Bruce McCandless v. Sony Music Entertainment, 10-07323, U.S. District Court, Central District of California]

music_space
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posted 10-02-2010 01:24 PM     Click Here to See the Profile for music_space   Click Here to Email music_space     Edit/Delete Message   Reply w/Quote
That's odd... didn't I see countless commercial uses of Buzz Aldrin's salute? Was permission from individuals obtained for all those albums with recognizable astronauts?

Does this policy extend to all NASA employees?

And McCandless is so far away... can't recognize his face anyway! Mind you, one can't recognize Aldrin's anyways!

Do we know what McCandless would gain, should he win his case?

Robert Pearlman
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posted 10-02-2010 01:41 PM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
Astronauts in the past have successfully defended their right to control the commercial use of their persona.

For example, Buzz Aldrin stopped the use of his image taken on the Moon when it appeared in an ad for alcohol (Aldrin is a recovering alcoholic). Hallmark settled a lawsuit with Neil Armstrong over the use of his likeness for a Christmas ornament.

Speaking from personal experience, when Space.com produced television commercials advertising its site, it needed written permission from the astronauts who appeared in NASA footage used in one of the spots (I helped contact the astronauts).

So, this is the not the first case of an astronaut protecting the commercial use of his image.

And yes, NASA's image use policy (and the protections behind it) exists for any person who appears in a photo, even if that photo is public domain, if it is used for commercial purposes.

quote:
Originally posted by music_space:
Do we know what McCandless would gain, should he win his case?
According to the Businessweek article, the lawsuit seeks unspecified damages.

413 is in
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posted 10-02-2010 04:48 PM     Click Here to See the Profile for 413 is in   Click Here to Email 413 is in     Edit/Delete Message   Reply w/Quote
Hope she takes the high road and raises the White Flag.

jimsz
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posted 10-02-2010 07:57 PM     Click Here to See the Profile for jimsz     Edit/Delete Message   Reply w/Quote
It seems like Mr. McCandless is going for a frivolous lawsuit. It's sad when even a former astronaut goes this route.

AJ
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posted 10-02-2010 09:52 PM     Click Here to See the Profile for AJ   Click Here to Email AJ     Edit/Delete Message   Reply w/Quote
I'm sure he doesn't find it frivolous. It seems to me that all of this could have been avoided if he'd been consulted in the first place. I don't think that just because he's in a space suit and you can't see his face that anyone should be allowed to use the image whenever they want.

cspg
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posted 10-03-2010 12:12 AM     Click Here to See the Profile for cspg   Click Here to Email cspg     Edit/Delete Message   Reply w/Quote
If "his" image is that important to him, why did he wait two years to file this lawsuit?

mjanovec
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posted 10-03-2010 12:53 AM     Click Here to See the Profile for mjanovec   Click Here to Email mjanovec     Edit/Delete Message   Reply w/Quote
I personally think there is some gray area when you have a photo of an astronaut suited up to the point where his or her "likeness" is no longer visible. Sure, Buzz has been successful with his legal actions in the past, but a judge or jury could see it another way in this instance. If you can't see the person whatsoever, but it is known that he/she is inside the suit (though never explicitly mentioned), is that enough to prevent commercial use without permission?

Look at it another way...if you see a photo of STS-41B launching and know McCandless and his crew mates are inside the orbiter, does that mean the photo cannot be used for commercial purposes unless the occupants of the shuttle clear it? If the answer is "no" then one could also argue that the MMU and spacesuit McCandless was wearing was simply a smaller type of spacecraft. As long as no identifying marks exist in the photo (or the commercial application of that photo) that directly identify McCandless by name, I wonder if he has a case.

To be honest, I don't have a strong opinion either way. I think a good argument could be made for both sides of this case.

Hart Sastrowardoyo
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posted 10-03-2010 01:49 AM     Click Here to See the Profile for Hart Sastrowardoyo   Click Here to Email Hart Sastrowardoyo     Edit/Delete Message   Reply w/Quote
Hmm... Did the producers of "Enterprise" get permission, as several recognizable people are in the credits, before selling the seasons on DVD? (And I somewhat facetiously note that in the clip of a footprint on the moon, that foot is said to be Aldrin's. So what's his take on it?)

moorouge
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posted 10-03-2010 02:27 AM     Click Here to See the Profile for moorouge   Click Here to Email moorouge     Edit/Delete Message   Reply w/Quote
Just a minor point - if anybody has a copyright on the photo wouldn't it be NASA? If one gets NASA's permission where does it leave the astronauts?

I don't know about the legal aspects in the US, but UK law is that if one is in a public place as is the subject, one is entitled to photograph what one wishes. So, presumably, as space/moon belongs to everyone if Joe Bloggs happened to be there to photograph an astronaut his photo could be used for whatever purpose he wanted. What would happen in this instance?

Opinions from the legal eagles in cS?

ejectr
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posted 10-03-2010 06:37 AM     Click Here to See the Profile for ejectr   Click Here to Email ejectr     Edit/Delete Message   Reply w/Quote
Nobody has mentioned if she received permission from NASA to use the photo. Maybe it stops there, but possibly McCandless already checked with them before filing the suit.

Delta7
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posted 10-03-2010 07:31 AM     Click Here to See the Profile for Delta7   Click Here to Email Delta7     Edit/Delete Message   Reply w/Quote
Maybe McCandless simply needs the money.

alanh_7
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posted 10-03-2010 08:17 AM     Click Here to See the Profile for alanh_7   Click Here to Email alanh_7     Edit/Delete Message   Reply w/Quote
I don't know Dido's music, But perhaps Bruce McCandles did not want his picture associated with music of any kind?

Or perhaps he would have just liked to have been asked.

Maybe it took two years to file suit because he did not know about it for two years. I may be wrong but I cannot imagine Bruce McCandles walking over to a CD selection at his favourite music store and leafing through Dido albums only to be surprised to find an album with his image on the cover

Delta7
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posted 10-03-2010 08:46 AM     Click Here to See the Profile for Delta7   Click Here to Email Delta7     Edit/Delete Message   Reply w/Quote
That image has been all over the place for over 25 years.

Greggy_D
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posted 10-03-2010 09:26 AM     Click Here to See the Profile for Greggy_D   Click Here to Email Greggy_D     Edit/Delete Message   Reply w/Quote
Sorry, but the average person is not going to know that is Bruce McCandless on the album, let alone actually know who Bruce McCandless IS.

garymilgrom
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posted 10-03-2010 09:50 AM     Click Here to See the Profile for garymilgrom   Click Here to Email garymilgrom     Edit/Delete Message   Reply w/Quote
Delta, Greggy: With all due respect - you are correct that the image is dated and the average person may not recognize the astronaut; but that does not mean the astronaut forfeits their rights. Mr. McCandless risked his life more than once to perform this maneuver and should be accorded every resource our legal system allows.

Delta7
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posted 10-03-2010 09:55 AM     Click Here to See the Profile for Delta7   Click Here to Email Delta7     Edit/Delete Message   Reply w/Quote
I don't dispute McCandless' rights to the picture, nor that he's entitled to them. I just can't believe this is the first time it's happened in 25 years. The whole thing just seems kind of odd.

Hart Sastrowardoyo
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posted 10-03-2010 10:05 AM     Click Here to See the Profile for Hart Sastrowardoyo   Click Here to Email Hart Sastrowardoyo     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by moorouge:
I don't know about the legal aspects in the US, but UK law is that if one is in a public place as is the subject, one is entitled to photograph what one wishes.
Not a lawyer, but my take is that is a gray area. I wanted to share my photos with a photo agency and was stopped cold by a disclaimer that said I had to get a release from the people that appeared in the photo, didn't matter if they were a public figure. Meanwhile, if I were to use that same photo for the newspaper I work for, I didn't have to get a release (unless for some reason the public event had a 'no photos' policy).

As for the general public, personally I don't take photos of ordinary people without getting permission (both in and out of a non-journalism setting). People tend to look at you funny - or do worse - if they don't know you and you're snapping away at them.

True story: I was with a photog who in broad daylight was taking pics of an historic building. The local armed forces recruiter came running out of his office, demanding to know what we were doing, never mind we were on a public street. He was afraid we were taking surveillance photos of his office in order to bomb it. Never mind that Google Earth can provide such photos. (And don't get me started on the TBTA prohibiting photo taken of its NYC bridges and tunnels, when one can picture books and postcards of them.)

Robert Pearlman
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posted 10-03-2010 10:24 AM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
A few comments in response to various points raised:
  • We are not privy to what agreements have been in place between McCandless and any prior companies that have sought to use his image commercially.

  • The question seems to be the application of "identifiable" in this case. The average person cannot identify many people, including famous sports players and actors. The question is whether, legally, "identifiable" applies to if John or Jane Doe can identify the person, or only if the person in the photo can be identified.

  • The legal complaint (as cited by the Businessweek article) states that McCandless first contacted Sony Music about the unauthorized use of his image in June 2009, presumably because he was unaware of the photo being used until then. One can imagine several scenarios that would lead to a suit being filed more than a year later, but assuming that any one of them is what occurred is not productive or wise.

  • Per its own image use policies, NASA did not need to provide permission to use the photo. NASA would only be involved if use of the photo could be construed as endorsement by the space agency.

  • This is not a copyright matter. As stated in the article, McCandless is not alleging copyright violation. The photo is copyright NASA, but is public domain.

    On a similar note, just because you own copyright to a particular image, does not grant you rights (in the US, UK or pretty much anywhere) over who or what it pictures. For example, you can take a photo of Madonna and thus you own the copyright to that photo, but you cannot then put that photo of Madonna on the cover of your next album without her permission.

  • It is rather common for television productions and movies to clear rights for every clip of footage they use, however brief it may appear. It would not surprise me in the least, if the producer of "Enterprise" sought permission for use of the historical footage they used.

spaced out
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posted 10-03-2010 12:05 PM     Click Here to See the Profile for spaced out   Click Here to Email spaced out     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by garymilgrom:
Mr. McCandless risked his life more than once to perform this maneuver and should be accorded every resource our legal system allows.
Had he been there funded by a private enterprise I could well understand him trying to protect use of the image. In reality however he was in the privileged position of being able to perform that manoeuvre thanks to hundreds of millions of dollars of taxpayers' money.

Likewise, had McCandless turned down the job because it was too risky there would have been many, many people willing to take his place, even knowing the risks involved.

That's not to downplay McCandless's bravery, skills, or achievements. It's just that the image shows the result of a vast investment by taxpayers and a huge effort by NASA and its contractors' scientists and engineers.

moorouge
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posted 10-03-2010 12:17 PM     Click Here to See the Profile for moorouge   Click Here to Email moorouge     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Robert Pearlman:
On a similar note, just because you own copyright to a particular image, does not grant you rights (in the US, UK or pretty much anywhere) over who or what it pictures.
I'd like legal opinion on that.

Robert Pearlman
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posted 10-03-2010 12:59 PM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by moorouge:
I'd like legal opinion on that.
Not being a lawyer, I have to go by what law schools and other organizations in authority provide. In the U.S., try Cornell University Law School: Right of Publicity.
The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.
For the UK, I was mistaken, as no explicit "right to publicity" exists. The example I gave regarding Madonna may not apply in the UK. There are protections under UK law however, they differ greatly from in the U.S. See the AHRC Research Centre for Studies in Intellectual Property and Technology Law: Personality rights in United Kingdom.

garymilgrom
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posted 10-03-2010 01:34 PM     Click Here to See the Profile for garymilgrom   Click Here to Email garymilgrom     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by spaced out:
It's just that the image shows the result of a vast investment by taxpayers and a huge effort by NASA and its contractors' scientists and engineers.
I agree with your point that he was part of a larger initiative but I don't think that means he should be deprived of his rights. Whether taken on orbit or in his garden, I believe a recognizable image of him cannot be used commercially without permission. However I am not a lawyer and it looks like this dispute will be settled by the courts.

Apollo Redux
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posted 10-03-2010 01:39 PM     Click Here to See the Profile for Apollo Redux   Click Here to Email Apollo Redux     Edit/Delete Message   Reply w/Quote
McCandless the opportunist. Sad.

mjanovec
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posted 10-03-2010 02:49 PM     Click Here to See the Profile for mjanovec   Click Here to Email mjanovec     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by garymilgrom:
Whether taken on orbit or in his garden, I believe a recognizable image of him cannot be used commercially without permission.

The question, as I see it, is whether the image of him floating in space is a recognizable image of McCandless. We know he's in the suit because we have been told he is in the suit.

This is not the only lawsuit over album artwork in recent months. The band Vampire Weekend is being sued over the use of a model's image on the front of the cover of their album Contra. While the specifics of that case are different in nature, I can't help but wonder if the outcome of one case will have any influence on the other. (Both lawsuits have been filed in Los Angeles... though the McCandless case in Federal Court and the Vampire Weekend case in Superior Court.)

Rob Joyner
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posted 10-03-2010 04:11 PM     Click Here to See the Profile for Rob Joyner   Click Here to Email Rob Joyner     Edit/Delete Message   Reply w/Quote
If McCandless had never taken that "walk", Dido would have never been able to use it on the cover, which makes it unique.

I don't care for Dido at all and personally would not want my image to appear on any of her album covers even if only one single person could recognize me or knew who I was.

OV-105
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posted 10-03-2010 04:17 PM     Click Here to See the Profile for OV-105   Click Here to Email OV-105     Edit/Delete Message   Reply w/Quote
I bet someone asked him to autograph the CD and that is how he found out about it.

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posted 10-03-2010 04:27 PM     Click Here to See the Profile for Playalinda   Click Here to Email Playalinda     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Apollo Redux:
McCandless the opportunist. Sad.
Aren't most/all astronauts opportunists? And for this fact aren't we all?

GACspaceguy
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posted 10-03-2010 04:55 PM     Click Here to See the Profile for GACspaceguy   Click Here to Email GACspaceguy     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Apollo Redux:
McCandless the opportunist. Sad.
A little harsh I would say without any facts. One wonders if this is the final action after a year or better of trying to come to some sort of agreement.

How about the lyrics for "Let's Do The Things We Normally Do," as written about on the Daily Mail out of the UK:

"In Let's Do The Things We Normally Do, Dido sings lines from The Men Behind The Wire, a rebel tune written 30 years ago in tribute to the provisional IRA men interned in the Seventies.

The song, penned by Paddy McGuigan, a member of the Barleycorn folk band from the infamous Falls Road in Belfast, is now associated with extreme republican movements such as Continuity IRA and the Real IRA.

It may be possible that he does not want his image associated with this political view. I am not saying that is the reason but I am saying we do not know what the reason is and it may have nothing to do with money. It could be, the only way he could get his image removed, is to threaten them (recording artist and thus the label as well) where it hurts the most, in the pocket book.

Playalinda
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posted 10-03-2010 05:26 PM     Click Here to See the Profile for Playalinda   Click Here to Email Playalinda     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by GACspaceguy:
It may be possible that he does not want his image associated with this political view. I am not saying that is the reason but I am saying we do not know what the reason is and it may have nothing to do with money.
Bruce McCandless sells his signature at autograph shows and I think it it may have to do with money.

Jay Chladek
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posted 10-03-2010 05:31 PM     Click Here to See the Profile for Jay Chladek   Click Here to Email Jay Chladek     Edit/Delete Message   Reply w/Quote
I would say Bruce is far from an opportunist, but with a name like McCandless, even if his family goes back four generations in the US, more then likely they are Irish or Scottish immigrants, meaning there could indeed be some concerns with the song lyrics or the entertainer singing them.

As for the contention that Bruce was chosen for that mission, yes he was, but to a point. The MMU was his design. Granted it was based on the AMU, but Bruce was the main driving force behind it. As such, I doubt anyone else would have been chosen to fly it first, unless Bruce wasn't as at the top of his game as he was.

As for use of image, Sony probably knows copyright and likeness laws better then anyone else out there, so they should have done their homework before approving the album cover. Bruce's image is probably as well known from the shuttle era as Buzz's image is for Apollo and you can bet Buzz watches how his image is used.

Rizz
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posted 10-03-2010 06:50 PM     Click Here to See the Profile for Rizz     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Jay Chladek:
As for use of image, Sony probably knows copyright and likeness laws better then anyone else out there, so they should have done their homework before approving the album cover.
Got that right, someone did'o' not play by the rules and got busted. Good for McCandless.

AJ
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posted 10-03-2010 10:46 PM     Click Here to See the Profile for AJ   Click Here to Email AJ     Edit/Delete Message   Reply w/Quote
Granted, I'm writing this after a wild wedding (friends, not mine) weekend and I'm pretty tired, but I have to say I'm disappointed that some people are choosing to be so harsh and make a judgment about a situation where we really don't know all the facts or the reasons behind the actions. Give the guy a break. He's human, just like the rest of us.

jimsz
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posted 10-04-2010 09:29 AM     Click Here to See the Profile for jimsz     Edit/Delete Message   Reply w/Quote
Mr. McCandless is not recognizable in any fashion in the photograph.

I hope he does not prevail at all in his lawsuit. if he does, other astronauts will no doubt look at this as a way to make money as well.

The taxpayer put them in space and unless it is is a recognizable image of their face, they should not be requiring permission.

Paul23
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posted 10-04-2010 09:43 AM     Click Here to See the Profile for Paul23   Click Here to Email Paul23     Edit/Delete Message   Reply w/Quote
Perhaps he just objects to being associated with elevator music!

Robert Pearlman
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posted 10-04-2010 09:44 AM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by jimsz:
Mr. McCandless is not recognizable in any fashion in the photograph.
Just for the sake of discussion, say for the moment that only one astronaut ever walked on the Moon. His face hidden by his helmet's visor, would he not still be identifiable in every photo* as he was the only person to have ever gone there?

Other astronauts have flown the MMU, but only McCandless flew it out to that far a distance. Does that make him identifiable?

* Before someone cracks wise, say there was a remote-controlled camera taking the pictures, too.

fredtrav
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posted 10-04-2010 10:39 AM     Click Here to See the Profile for fredtrav   Click Here to Email fredtrav     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Robert Pearlman:
Other astronauts have flown the MMU, but only McCandless flew it out to that far a distance. Does that make him identifiable?
One problem I see for McCandless' suit is that while most of us in the forum are familiar with the photo, most people are not. Because the shuttle is not in view, there is no way of judging how far away this astronaut is from the shuttle, so it could be any astronaut in an MMU. All an editor would have to do is take the shuttle out of the picture. That being said this is an iconic photo and I dont know if another exists of an astronaut with this backdrop.

jimsz
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posted 10-04-2010 11:38 AM     Click Here to See the Profile for jimsz     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Robert Pearlman:
Other astronauts have flown the MMU, but only McCandless flew it out to that far a distance. Does that make him identifiable?
You can't compare it with a single astronaut who walked on the moon. You said it yourself, the moonwalker was the only one. McCandless is one of several (many) to have flown the MMU.

Using that logic any image of any moonwalker is identifiable because Dave Scott was the only astronaut to drive a lunar rover with a taped fender.

Neil Armstrong is the only Commander to walk on the Sea of Tranquility without a red stripe on his suit, etc..

Any moonwalker image can be identified with a bit of effort so can they sue advertisers using the images?

Mr. McCandless is not identifiable. You say he is because of the distance he traveled from the shuttle. That same effect could be done via a wide lens of another using the MMU on another flight.

Robert Pearlman
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posted 10-04-2010 11:51 AM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by jimsz:
McCandless is one of several (many) to have flown the MMU.
As an aside, the MMU was used on only three shuttle missions by only six astronauts. I am not sure that classifies as "many." More people have walked on the Moon.
quote:
Neil Armstrong is the only Commander to walk on the Sea of Tranquility without a red stripe on his suit, etc..
Pete Conrad also walked on the Moon as a commander without red stripes, but since you raised the example, it is relevant to point out those red stripes were used for identifying the astronauts in photos.

I think the number of astronauts who have given their explicit permission and/or licensed the use of their image for commercial uses is greater than what is acknowledged publicly. The difference between those prior cases and this one is that they were done in the normal course of business and therefore remained confidential.

quote:
Mr. McCandless is not identifiable. You say he is because of the distance he traveled from the shuttle.
A point of clarification: I was citing what McCandless wrote in his legal complaint. I am not making any claims either way.

dom
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posted 10-04-2010 12:11 PM     Click Here to See the Profile for dom   Click Here to Email dom     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by GACspaceguy:
It may be possible that he does not want his image associated with this political view.
I think the only people who noticed Dido's use of this paragraph from an obscure "Irish Rebel Song" were Dido herself and a right-wing tabloid newspaper trying to create a little controversy...


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