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.


 
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  • Larry

    If Cumbo didn’t have the OK to sell the pictures, how and why did Getty accept the picture without a model release?

  • Shay Murphy

    “Cumbo never received authorization from Nolan to sell the photo after the fashion shoot” Says it all!

  • http://jimisweetnyc.com Jimi Sweet NYC

    Well someone’s in trouble.

  • http://atelierdolle.net/ Rui

    She should also sue the photographer as well, in that case.

  • Spike

    If she had signed a blanket model release, including the posted by Getty, there would be no legal reason for anyone to contact her about using the image. She might argue that the usage is “defamatory,” but that might result in a costly legal effort that she could lose. That Getty put the image up without a release is just plain unacceptable.

  • workinprogress101

    Well thats what happens when you let your people that dont know whats happening do the companys work. I would say they might want to train there people
    Not a Getty Fan

  • gochugogi

    Mayhaps but photogs don’t normally have .5 mil…

  • Larry

    It doesn’t sound like the photographer got a release: “Cumbo never received authorization from Nolan to sell the photo after the fashion shoot”. Even is she signed one, Alamy says this: “Times when you need to be extra careful – when a standard release may not be enough

    Releases generally don’t allow uses that could be deemed to be controversial, sensitive or defamatory”

  • Fuzztographer

    Thus demonstrates the problem with offloading your negotiations to a faceless, automated third party. Plus, you only make chump change.

    If you’re a budding model or fashion photographer, you would do well to use examples like this to your advantage.

    On an unrelated note, it’s hilarious that whoever made that poster used a meme font. Looks very amateur.

  • http://www.bobcooleyphoto.com/ bob cooley

    My releases do – the older ASMP standard release had the following language in them:

    “and I waive any right to inspect or approve the photograph(s) or finished version(s) incorporating the photograph(s), including written copy that may be created and appear in connection therewith. I hereby release and agree to hold harmless the photographer, his assigns, licensees, successors in interest, legal representatives, and heirs from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form whether intentional or otherwise, that may occur or be produced in the taking of the photographs, or in any processing tending toward the completion of the finished product, unless it can be shown that they and the publication thereof were maliciously caused, produced, and published solely for the purpose of subjecting me to conspicuous ridicule, scandal, reproach, scorn, and indignity”

    though Getty’s releases do not cover you as well.

  • http://www.bobcooleyphoto.com/ bob cooley

    Something is amiss in this situation – Getty requires releases on upload (part of the contribution process is uploading a copy of the release). The photographer had to upload something for the release, so what did they upload?

    Sad to say, but the photographer is more likely liable here than Getty – and if Getty is the only one sued, you can be sure they will just turn around and sue the photographer – these kind of messy situations are why photographers early in their career need to understand that being a pro isn’t just about taking images, its mostly about understanding how to run a good business. This may be an expensive lesson for Jena.

  • Vin Weathermon

    Getty will wind up holding the bag on this one, and they will have to go after the photographer for damages. The photographer was trying to pull a fast one….you never sell your work to getty if your agreement does not permit that. It was not shot for stock…someone paid for that fashion shoot.

  • Larry

    Someone mentioned that Getty might have accepted the picture as “editorial”, which wouldn’t necessarily need a release. Getty may have then sold/released the picture to be part of a Public Service Announcement, which usually isn’t considered “commercial”

  • bbear

    My understanding is the image was uploaded and licenced for editorial use: so no release required. So everything may come down to if the usage is deemed to be editorial or commercial.

  • Larry

    Regardless of editorial or commercial is the issue of defamation. She seems to have a pretty strong case for that.

  • GuessWho

    Getty deserves such a hit. I hope she makes them pay as Getty is the most artist unfriendly agency, the most miserable in regard to that.

  • Sir

    I don’t even understand what half of that means.

    If I was a client, I wouldn’t sign that contract. Maybe make it easier to read.

  • Larry

    Someone mentioned that it may have been submitted as “editorial”, which doesn’t necessarily require a release

  • Larry

    If they made it simple, just think how many lawyers would be out of business….

  • http://www.bobcooleyphoto.com/ bob cooley

    I didn’t write it, that’s the standard ASMP release – though I think they’ve tried to make the more recent version a little more accessible… Interestingly enough, they actual have sample language in their release now for cases just like this…

    http://asmp.org/tutorials/adults-model-release.html#.Uj9T9LyrvZg

  • http://www.bobcooleyphoto.com/ bob cooley

    That’s possible – but PSAs aren’t covered under editorial use. I can’t really see Getty accepting this as editorial, the image clearly isn’t reportage, which is the only type of images they accept under editorial licensing. One way or another, its going to be a quick lesson in better paperwork for someone :)

  • John P. Hess

    This goes a little above and beyond basic model release. As I understand it, these stock companies require a special “sensitive subject matter” release in situations like this – Say if you’re marketing adult diapers, you can’t pull any photo off of iStock and throw on a caption like “I use Adult Diapers everyday”

    Seems to me something like this is going on here. Really I think the onus is on the New York Division of Human Rights. What they did – grabbing a stock photo and saying that person is HIV positive – is just entirely unethical.

  • David Sorcher

    So far John Hess is the only commenter who seems to be placing blame where it most belongs (not that the photographer didn’t also make some mistakes). That the Division of Human Rights would use an image of someone with the implication that the person was HIV positive without first confirming that was indeed the case is unconscionable. Was Getty even aware of exactly how this image would be used when they sold the rights to the DoHR? Anyway you cut this the model has a case against someone.

  • Rob

    So much wrong here. If the image was editorial only then it shouldnt have been used in marketing.

    Getty should never release an image for an ad campaign like this without further express permission from the photographer and models.

    Division of Human Rights should never use an image in this situation without express consent of the subjects.

  • sshoihet

    It seems to me that even with a model release, there should be some consideration on the part of the person using the photo. If you’re going to do a media release and want to show someone that’s HIV positive, then you’d be much better off to find someone that is actually HIV positive and use them for your campaign. What if i create a media campaign, use a regular model with release and title the picture “I’m a pedophile and I look just like you; you can’t always spot us in a crowd”. Using an image and misrepresenting something in it is unethical and not a very good idea unless you have lawyers you want to keep busy…

  • Rob

    I was a Getty contributor a while ago and from their own processes they did say they would verify if the image and models were ok for controversial or possibly detrimental campaigns.

  • johnnyrotten.

    It’s really not unusual, I mean they don’t confirm that a person in a stock photo is homeless or an addict before they use it.

  • http://www.justinhaugen.com/ Justin Haugen

    This happened to Joey on an episode of Friends.

  • Bruce AlleyCat Evans

    Exactly.

  • iamtheskeener

    Typically a use like this (sensitive in nature) requires a different kind of release and, often, higher pay for the model.

  • Jacob

    Getty should not publish/sell without Model Release – if the photographer didn’t have it – technically Getty shouldn’t sell it. It was a negligence by the photographer for sure – but he didn’t commit the fault.

    Getty is a big corporation who needs to ensure processes are absolutely in place. If there’s no model release how can they sell? That’s just dumb and wreck-less as has been proven so many times with these services that exploit photographers down to the last penny (literally).

  • Rob S

    Yup. I hear all kinds of crap about how micro stock companies are evil but every one I have every submitted to has been death on model releases. There is no way this is the ONLY image Getty has sold that didnt have a model release. Some lawyer is going to get rich combing through Getty Images looking for clients.

  • David

    I guess the court will decide if the poster is correct (that she has rights….)

  • been there

    a Getty division, Photodisc, paid 1 million dollars for a picture of a family with a bald guy that was used in a Rogain ad, this model should be going for a lot more.

  • Biniam

    Exactly what demographic was DHR trying to reach? White women acquire HIV at a rate well under 3 per 100,000–less than one-sixth the rate for white men, and they’re not exactly the greatest at-risk group either. Is a pretty (?) white girl supposed to galvanize her black and hispanic sisters (and brothers), who are really bearing the brunt of this disease?

  • hdc77494

    I think she just might collect. Good Grief, can you imagine.

  • hdc77494

    I think putting out a poster of a woman saying she has HIV when it’s a lie is defamatory regardless of the model release.

  • hdc77494

    It says unless they were MALICIOUS when they used her image to represent HIV+ people, she can’t win a suit, even if she can demonstrate or prove the lie harmed her reputation.
    With that clause in a release, she’s probably out of luck. It’s still sleazy what they did. No one who doesn’t have HIV, or any other condition for that matter, should have their picture plastered all over town claiming they do I can hardly believe they did it, but it is after all, some bureaucrat in a state government office.

  • Paul

    The graphic designers for the Division of Human Rights forgot that this model is a person, not just another piece of clip-art.

    Getty and the photographer are both responsible, yes… but the Division of Human Rights is also responsible.

  • madmax

    $450000? And probably much more in the defamation lawsuit. I´d wish my portrait be there too! No problem.

  • http://www.flickr.com/photos/monteraz/ Monteraz

    LOL

  • http://maxhodges.com Max Hodges

    they don’t need the release; they just need for the photog to assume liability — which they do!
    I’m a Getty photog too. Their contract indemnifies them from these things. She will lose.

  • damibru

    You know what the worst part of the article is in addition to the ever so jaded attempt to get rich quick….that’s a fashion shoot? :)

  • Zos Xavius

    I think the point of using the image was to show that anyone can have HIV, not just the typical HIV victims. That said, I hope this girl gets some compensation.

  • Zos Xavius

    +1

  • David Sorcher

    Well obviously Johnny, they should, or the image shouldn’t be used in that context.

  • derekdj

    I was approached by Getty to license my photos, but after reading their contract and terms of use, I was really apprehensive about signing with them. Getty does very little screening (no surprise looking at the volume of photos they’re trying to acquire), instead they push the responsibility of clearing rights to the photographer (which is not unreasonable), but you would imagine there would be some secondary check to see if the photos meet with all their legal guidelines; especially when it comes to images with people and landmarks. There is something to be said about going with smaller agencies that aren’t about about bulk catalog.

  • kyle

    sorry max but Getty was negligent by not making sure they had the model release. no contract can get you out of negligence. Getty will lose ( they may be able to sue the phogographer, but that doesn’t absolve them off their responsibility or negligence)

  • Courtney Navey

    and the photographer isn’t really that good…at least what’s on her site isn’t that great :/

  • http://www.bobcooleyphoto.com/ bob cooley

    That’s true in the example of the release that I showed, but the Getty release is not nearly as specific. So there is legal wiggle room – and it seems that the photographer didn’t have a release at all, which puts her in some serious legal liability as well.