A TV ad promoting the new Thomson Dreamliner. The ad featured a number of old-fashioned home video style images of people travelling and on holiday, including a woman in a pink top walking down some steps from a plane.
The complainant challenged whether the ad was in breach of the Code, because she was featured in the ad without her permission.
TUI UK Ltd t/a Thomson Holidays (TUI) asserted that the complaint was a case of mistaken identity. They said they had contacted the source of the vintage footage, Media Archive for Central England (MACE), from whom it was licensed, and they had confirmed that the challenged footage was of a woman who was not the complainant. They said MACE had explained that the footage had been filmed by the featured woman's husband in a home video of a particular holiday, that additional footage showed her being referred to by name on several occasions, and that the exact shot had been taken in 1966 when the couple were flying from Britain to Luxembourg. They stated that the couple had deposited their footage with MACE, who licensed it as per their remit as an archive company. They also provided a declaration signed by the woman featured in the film which stated she was the copyright holder for the footage, had given MACE permission to supply copies of the footage to TUI's agency to use in the ad, and confirmed that she was the woman shown disembarking from a plane.
TUI also provided the Licence agreement drawn up between their agency and MACE, which granted a 12-month usage period for the footage across various media, and MACE's standard Terms and Conditions for the release and use of film and visual media from the archive. They asserted that their agency's usage of the footage complied with both the Terms and Conditions and the License Agreement entered into.
TUI also asserted that they had received several pieces of correspondence, all from individuals claiming to know or actually be the woman in the film. They had therefore concluded that it was fairly easy to misidentify the woman in pink walking down the steps of the plane.
Clearcast said they entrusted advertisers (and their appointed creative agencies) to make sure they were legally permitted to use any footage, music or artwork featured in their adverts. They asserted that the footage in question had already been cleared for use via MACE who had obtained prior permission from the owner.
The ASA understood that the footage was an excerpt from a home video of a couple's holiday in Luxembourg which had been recorded in 1966. We understood that the woman featured was the wife of the man who had filmed the footage, and that MACE had additional footage which showed the woman's face close up, and with her husband saying her name on a number of occasions. We noted that the name of the woman was not that of the complainant. We also understood that the couple had deposited the film with MACE who licensed it, and that TUI had used the footage in accordance with the relevant Terms and Conditions and Licence Agreement. In addition we noted that the declaration from the copyright owner of the footage stated that she was the woman shown disembarking from a plane. We therefore concluded that the woman featured in the ad was not the complainant, and that TUI had the relevant permissions from MACE to use the footage.
We investigated the ad under BCAP Code rule
Television only – With limited exceptions, living persons must not be featured, caricatured or referred to in advertisements without their permission.
Exceptions are made only for brief and incidental appearances, such as crowd scenes, and advertisements that refer to a person featured in publications, programmes, films and the like, providing that the reference to or portrayal of that person is neither offensive nor defamatory. (Privacy), but did not find it in breach.
No further action necessary.