PetaPixel

Judge Rules Model’s Lawsuit Against Getty Will Go to Trial

hiv-ad

Several months after model Avril Nolan sued stock photography giant Getty Images for displaying her portrait and licensing it to the New York State Division of Human Rights for an HIV-related advertisement, a judge ruled the lawsuit will be taken to court rather than dismissed as Getty had hoped for.

As noted in our article from September of last year, Nolan’s portrait was used in an advertisement which stated “I Am Positive (+), I Have Rights.” The ad insinuated that Nolan, a healthy 25-year-old woman, is HIV positive.

According to the New York Daily News, Nolan seeks $450,000 in damages, claiming that the ad has led to a heap of emotional distress and many an “awkward conversation” with clients of hers (she’s a PR rep) that read the publication the photo appeared in.

But the real question here is: “who’s to blame?” Is it Getty for licensing out the images, or does the fault lie with the photographer Jena Cumbo, who admitted she “made a mistake” and wasn’t completely aware of her contractual agreement with Getty?

The issue lies in the fact that Nolan never signed a model release for her image(s), which in New York is required if the photos are to be used for the sake of advertising. Getty released the following statement back in September:

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.

In hopes to get the case dismissed, Getty’s scapegoat for the lawsuit was that the image use fell underneath the “First Amendment and other grounds,” and that if Nolan sued anyone it should be the State of New York. However, the judge made clear this week that the reasoning doesn’t hold up, and the case will have to go to trial.

What are your thoughts? Let us know who you think the guilty party is by dropping us a line in the comments.

(via PDN via The Click)


Update: After speaking further with Ms. Cumbo, we have reverted to the original wording of the article. Thank you to everybody for your feedback.


 
  • RonT

    That’s a fairly common use for stock imagery actually, so the end client hasn’t done anything wrong at all. They quite likely didn’t care if it was shot-for-purpose, or a stock image as long as it came through on-budget.

    This case is WHY paperwork is so fundamentally important.
    It is sounding as though the photographer may have forged a release (if Getty are to be believed) in which case surely the issue is criminal, rather than just civil? The model states that she hadn’t signed a release, so the photographer was never legally allowed to upload the image to Getty in the first place I would have thought.
    However if the paperwork is accurate then it’s hard to see how Getty are at fault – they are a stock library after all and it isn’t their issue what the images are used for.

  • RonT

    That seems the main factor. I find myself wondering if suing Getty may just be about reaching the deepest pockets rather than the wrong-doing party. So far the photographer doesn’t seem to be in the middle of the issue, which is where they really should be it seems

  • http://www.richardsnotes.org Richard

    It would be interesting to know how Getty and other stock agencies do their due diligence on model releases for things like this. Still, if the model never gave her connect for the licensing of the images beyond her own use then the photographer is at fault (and Getty for taking on stolen goods).

  • RonT

    Actually not necessarily. Using a stock image for a sensitive ad makes somepractical sense as a ‘real’ person with the condition in the intended ad may not available/appropriate/identified (patient privacy rights etc). You’d expect a model to be well compensated for this of course.

    The way it is meant to work is: Getty, like all stock libraries I’m aware of, have a rights & clearance system. So the client’s use of the image is referred back to the image owner (the photographer normally, certainly the uploader is expected to be the rights owner) for negotiation. At that point the owner either has a full release for any purpose from the model, they have a list of potential uses allowed, or they go back to the model and get appropriate releases and negotiate pay accordingly. Clearly this process failed, the question is where it failed I guess.

  • RonT

    From what I’ve seen you essentially just declare that you have the appropriate documentation when you upload, not aware that you need to file it anywhere with them. It’s a long time since I used them for anything so that may have changed though.
    I guess from their perspective it puts all the onus onto the uploader for correct paperwork in event of a claim – it’ll be interesting to see if that works for them in court!

  • RonT

    Getty, like most libraries (and model agencies for that matter), factor the intended usage into the fee that they charge.
    So Getty would have known reasonably exactly what the images was for, where it would be displayed (TV/Billboards/train posters, etc) as all of those uses alter the usage fee.

    You may be outraged but the reality is that model’s only retain the image rights that they don’t sign away, so it’s important to list excluded uses in the release. That’s the simple reality of both professional commercial photography and commercial modelling.

    The issue here is that the appropriate paperwork doesn’t appear to have existed, so the model’s exclusions for use aren’t noted. All of that is usually a failing of the photographer and they are legally liable. Getty may have some liability if they haven’t been misled by the photographer.
    It may also be that perhaps the model and photographer are not actual experienced professionals and therefore lack knowledge in what should have been done but that won’t alter liability. The photographer should have educated themselves on what was required if they chose to offer that image for sale.

    The end client isn’t a factor, nor is the intended usage. Normally the exclusions in the image rights would have removed that image from being selected by the client in the first place.

  • RonT

    We are all assuming of course that the photographer failed to get a release. It is conceivable that the model has simply denied signing one in which case one should exist of course.

    I agree though, this whole thing smacks of a series of people not having done their due diligence

  • Michael Adkins

    It is hard to believe that any common since blames Getty. They are simply in the business of licensing as a third party agent. Common since is that the use of the image by the New York State Division of Human Rights stating unverified information or out right lies that this person has HIV. What person in there right mind would think purchasing a generic public image and labeling that person as HIV positive is permissible. I am not sure but I think there are laws regarding the use of medical information. (HIPPA). But if Getty did or did not have the proper release and if the photographer did or did not have the proper release is not the issue. If all that was correct it still does not release the New York State Division of Human Rights from the legal and ethical rights to use someone’s image and say without verification or permission that this person is HIV Positive. My problem is that anyone can see this any other way.

  • http://ivorphotography.co.uk Ivor Rackham

    A girl had to explain to a few friends and clients that she didn’t have HIV and it was just a modelling job. Diddums! Is she ashamed of promoting the rights of people with HIV? She should be proud that, even inadvertently, she did some good when her image was used. When quizzed by her friends and clients she could have replied ‘No, I don’t have HIV, but the rights of sufferers is an important issue and I want to help promote it.’ Asking for $450,000 in compensation is obscene. In the third world people live off less than $1 a day. HIV is a quick death sentence there because they cannot afford the drugs to keep them alive. If she wins this case, will she donate the money to fighting this disease? Or, is her claim just greed?

  • Darryn Lee

    Getty shouldn’t have received those pictures if there weren’t any release forms.

  • Darryn Lee

    Not really. Getty knew that any photo they received has to have some kind of authorization for them to use it. Just because the place they get the photo didn’t do that doesn’t let them off the hook for still using it. The case in November I mentioned earlier is basically the same thing Getty is being sued for here. Then, it was some photos a guy did and post them on Twitter. An agency company AFP saw them and contacted Getty and they made copies of those photos and sold them. The guy, Daniel Morel, won a $1.2mil judgement against them.

  • John Deaville

    i dont know the specifics of that case, from what you say ‘the guy’ never had any kind of agreement with getty and therefore getty infinged his copyright. This article and everything everyone has said on these pages is poorly written – all i know as someone who has been involved in buyinging and selling stock is that when you sell an image to a library, you have to sign something to say that you – the photographer – are liable for any releases that are necessary for the usage you have made the image available for – the article suggests that the photographer advertised that the image was available for commercial usage and that the photographer did not understand that it required a model release

    there is no onus on the library or the company using the image to get the model releases as it is implied in the TOC of the transaction.

  • http://www.billysuratt.com/ Billy Suratt

    Whether or not PetaPixel uses “Web site” or “website” is a matter of style; neither is an error, but the term should be used consistently throughout the site. Associated Press style mandated “Web site” for years before recently changing to “website,” so both variants are still in common usage.

  • http://www.billysuratt.com/ Billy Suratt

    If Getty licensed the image as released without having a copy of a signed model release in hand, Getty is definitely culpable and should pay out the wazoo. If the photographer provided Getty with an invalid release that appeared genuine on its face — and I’m not saying that’s what happened — then the photographer should pay out the wazoo. We need far more facts about this case than what’s been presented here.

  • Henry

    Yup, it sure does. Somebody doesn’t know what “scapegoat” means:

    “In hopes to get the case dismissed, Getty’s SCAPEGOAT for the lawsuit was that the image use fell underneath the “First Amendment and other grounds,” and that if Nolan sued anyone it should be the State of New York. However, the judge made clear this week that the reasoning doesn’t hold up, and the case will have to go to trial.”

  • hemburto

    Webster seems to be the only one left who prefers “Web site,” but alas, I was only trying to bust your chops … looks like I succeeded.

  • R Smith

    Falsely stating someone has HIV/AIDS is ‘slander per se.’ Nolan doesn’t have to prove actual damages, the law assumes damages in a slander per se action. Getty sold the image, Getty is liable.

  • Randy S.

    “. . . it implied that all model releases are in place and there are no restrictions . . . ” This case will be important because the ‘implication that a model release is in place’ can be overcome by evidence to the contrary in a court of law. I will not be surprised if Getty changes drastically its handling of model releases due to the outcome of this case, such that photographers will also have to submit the signed releases and attest to it authenticity, thereby putting the burden back on the photographer, releasing Getty from messes like this one in the future.

  • frankjonen

    This is commercial use. If the photographer has a model release for that scope, the photographer is out of it. It’s the designer at fault here. Or worse, the designer’s boss who likely went “Oh it’s fine, just get a cheap image online, we don’t need to contact actual HIV+ people. That’s too expensive to get their releases and schedule a shoot.”

    Stock art of people gets misappropriated the most. Simply because it’s easier and cheaper than doing your job properly.