PetaPixel

Model Sues Getty After Seeing Herself in an HIV-Positive Advertisement

iampositive

Stock photography heavyweight Getty Images is in some hot water after being sued by a model over the use of her portrait in an HIV-positive advertisement.

The ad, shown above, appeared across New York City in the April 3rd edition of the newspaper am New York. It features 25-year-old Brooklyn woman Avril Nolan as a poster child for the rights of the HIV-positive community. Splashes across the portrait are the words, “I AM POSITIVE(+),” and, “I HAVE RIGHTS.”

In reality, Nolan is not HIV-positive. Upset that she was wrong depicted in the ad, Nolan is now suing Getty Images for selling her photograph to the New York State Division of Human Rights without her consent. She’s seeking $450,000 in damages, and is also in the process of going after the Division of Human Rights for defamation.

The New York Daily News reports that Nolan has had to have “awkward conversations” with people in her life ranging from employers, friends, and “potential romantic partners” as a result of the unwanted appearance.

So how did the photo end up passing through Getty in the first place? The photographer behind it is taking some of the blame. Jena Cumbo tells the NY Daily News that she “made a mistake” by not understanding her contract with Getty.

Cumbo never received authorization from Nolan to sell the photo after the fashion shoot two years ago, but she’s also arguing that the Division of Human Rights should have contacted Nolan before using her as a poster child for the HIV community.

(via NY Daily News via The Observer via Reddit)


Update on September 23, 2013: Getty has issued this statement regarding this story:

We empathize with and understand the sensitivity of Avril Nolan’s situation. Getty Images had a model release and relied upon the photographer’s documentation when we made the image available for license.


 
  • LindoPhotography

    That’s the problem with stock photography you have no rights, you’re selling your image (and/or models image) for whatever purpose, and your selling it cheap and in bulk. IE selling out. Also watering down the need for hiring a photographer for the specific job.

    It’s not really the photographers fault, although I guess he should have been upfront about using the images as stock photography. Most likely she signed a release form, which means the photographer can use the images.

    I thought it was funny, I had a pop up / spam advertizement come up once and recognized her since it was a model I had worked with in the past.

    I don’t think she’s got a case against anyone though. Ideally the photographer should have been hired to do a shoot for that particular purpose and get someone who’s ok with the final product, maybe someone who actually has HIV.
    Ben

  • http://maxhodges.com Max Hodges

    OK let’s suppose the photographer forged the model’s signature on a model release. In that case it wouldn’t matter if the model release was present or not right? You see, unless the signature was witnesses by a notary public, the model release is only as good as the honesty and integrity of the photographer. So Getty photographers are contractually oblige to get release permission on anything they submit. If the photographer fails to secure that permission, or secures it under duress, its ultimately the photographer who defrauded both his model and Getty.

    I can send you a copy of my contributor agreement if you doubt these things. But I assure you Getty isn’t going to be held negligent because a photographer misrepresented himself and defrauded them.

  • http://maxhodges.com Max Hodges

    the Getty release allows the photos to be used any way you can imagine. They are are full and total releases indeed!

  • http://maxhodges.com Max Hodges

    Why? If you sign such a open-ended release, that’s exactly what might happen. Or worse: they could used the photo to promote Folger’s “coffee”.

  • http://maxhodges.com Max Hodges

    on way. A full release is a full release. There are no clear legal guidelines for “sensitive in nature”. I myself wouldn’t mind my likeness being used to help a causes like HIV awareness, erectile dysfunction or any other unfortunately medical issue. But for me I’d take more issue with being a poster boy for the NRA, McDonald’s or Starbucks coffee.

    Its impractical to deal with the nuances of what is or isn’t “sensitive”, so the releases are worded to assert full and total release, full stop.

  • http://maxhodges.com Max Hodges

    if you don’t want your images to be used for what-the-fuck-ever campaign, then you’d be a fool to sign such a blanket model release.

  • Larry

    FROM THE NY POST:

    Cumbo said that she never gave Getty a release and that the image was originally used for a magazine editorial.

    Nolan attorney Erin Lloyd said the ad’s publication was a violation of privacy that breaks state law requiring signed releases for commercial images.

  • http://maxhodges.com Max Hodges

    Are they selling HIV?

  • Larry

    Well now, this changes things a bit: FROM THE NY POST: Cumbo said that she never gave Getty a release and that the image was originally used for a magazine editorial. Nolan attorney Erin Lloyd said the ad’s publication was a violation
    of privacy that breaks state law requiring signed releases for commercial images. FROM GETTY: “We empathize with and understand the sensitivity of Avril Nolan’s
    situation. Getty Images had a model release and relied upon the
    photographer’s documentation when we made the image available for
    license.”

  • nathan

    The real crime is that they used the meme typeface for “I have rights”

  • prometheus1010

    Considering one of the rights they’re protecting is medical confidentiality, this is all the more disturbing. It should be obvious to them that they should get explicit consent from the model for this kind of ad campaign.

  • http://www.intensitystudios.com/ Antonio Carrasco

    haha, yeah, first thing that I thought of!

  • Tina

    There are 4 desks that were involved with this photo.
    The model who just was fine with the shoot and never bothered to wave a portrait license.

    The artist who uploaded the image without portrait agreement. That limits the photo to editorial use.
    Getty Images, they make their rules clear but are not too strict to see if photographer and user stick to their rules.
    And last the user in this case Division of Human rights. They should have noticed the photo was without portrait agreement and they should have acted on it (contact the photographer , model or choose another photo )

    In this case I think that NY Division Human Rights is the responsable for the damage. They knew what they bought and not even thought about contacting the model eventough they knew the sensitive nature of their publication.

  • Gmock

    Most people are not bright and overly emotional and don’t understand the way photo licensing works. Getty is simply a supplier. They provide imagery, period. Someone calls them and wants a picture, Getty simply asks how large the size and layout so it can price point. They don’t ask why it’s being used. They just ask how. If this model wants to sue anyone, she needs to go after the NYS Human Rights who used her photo the way they did. No, I don’t work for Getty. I just have experience with licensing images.

  • Gmock

    Here’s what I want to know, why did the NYS dept of Human Rights license a photo of a model who doesn’t actually have HIV?

  • https://twitter.com/adamhowardcross Adam Cross

    I think I would sue simply because the ad just looks horrible. Shame on you New York State Division of Human Rights, you can do better.

    PS. when are people going to be smart enough to realise that not everyone who appears in an ad for HIV, or an ad for Viagra or whatever is personally suffering from aforementioned affliction/disease? Do people really think the models in hair loss commercials are actually suffering from hair loss?

    pps. What do employers have to do with this? why would employers start asking questions? I would sue them too.

  • LxC

    Best thing to happen in this model’s career (despite the “hardships”).

  • http://www.GregoryKohs.com Gregory Kohs

    “how water” or hot water?

  • tarc

    “…is in some how water…”

    “Upset that she was wrong depicted…”

    Does someone need a proofreader?

  • Jacob

    Seriously Max, you’re barking at the wrong tree. On all levels. Get over it.

    1) Technically: A simple model release which the photographer apparently did, doesn’t save Getty from ensuring the image isn’t misused for future use. So yes, the photographer misunderstood the contract, it’s an individual after all, that does NOT give Getty the right to mis-use the image. Getty is responsible for ensuring the photographs are properly used it is to the very least a shared responsibility as a company that then markets images to others. If Getty sells an image for such a cause – it needs to be double-sure that it is not misusing the image

    2) Morally: The photographer is an individual that may or may not know everything and cannot afford legal checking for everything. This as stated at the start is just a moral consideration. I understand for Americans Morallity never plays a role as everyone is constantly suing everyone. But, we’re are talking Goliath and David here and in this case Getty is Goliath and they sure damn well have the resources to actually make sure and help the photographer to get these sorted. NOT work against the photographer. They are, after all, taking more than 80% of the profits while the photographer gets, what, 12 cents on the dollar?

    Cheers and relax

  • Jacob

    Why would we even consider forgery???

  • Max Hodges

    20% is 12 cents on the dollar?
    Math is hard!

  • monalisa

    my name is Monalisa, i want to give almighty praise to MADAM GLADYS who
    help
    me to cure my HIV POSITIVE, please help me to give thanks to her she is a
    great woman who God send from heaven to save people’s life, this woman
    also
    save the life of my friend who have HIV/AID POSITIVE ALSO, please thank
    her for me, also if you have any type of problem you can also
    contact him to help you out on it, she is a wonderful woman, her email
    is: [email protected] contact him now for him to help
    you too.

  • Locke

    Ha! Sucker.

  • Randy S.

    Any portion of a contract that violates law is unenforceable. Publishing a false statement that someone has HIV is ‘slander per se’, thus Getty, the photographer and NY Division of Human Rights are all rightly named as defendants here. The ‘malicious’ intent clause of the contract is unenforceable since slander per se does not require malicious intent. Bottom line, she will win the suit.

  • hdc77494

    If she sued for slander, yes, but if she sued for using the photo, no. The picture itself isn’t slanderous, it’s the caption.

  • Randy S.

    Since the court denied Getty’s motion to dismiss, your conclusion fails. Getty is responsible to obtain the appropriate release prior to licensing any photo. This case may well change, drastically, the way Getty processes the upload of photos and releases.