State Court Affirms Model’s Right to Sue for Unauthorized Use of Her Photo in an AIDS Public Service Advertisement

New York Supreme Court Justice Anil C. Singh rejected a motion by an “image distributor” to dismiss a model’s lawsuit seeking compensatory and punitive damages for the unauthorized publication of her picture in a public service advertisement placed in print media by the New York State Division of Human Rights to inform people living with HIV about legal protection from discrimination. The March 6 ruling was published in The New York Law Journal on March 24.

The defendant, Getty Images (US) Inc., “is in the business of licensing stock photographs on the Internet,” according to Justice Singh’s opinion, summarizing the allegations in Avril Nolan’s complaint. Getty acquired Nolan’s image from a photographer named Jena Cumbo. Cumbo had not obtained a written release from Nolan authorizing the use or sale of her picture, but nonetheless sold it to Getty, which then licensed it to the New York State Division of Human Rights, which used it to illustrate an advertisement placed in newspapers with the caption: “I am positive (+) and I have rights” and “People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights? Contact the NYS Division of Human Rights.”

Nolan is not HIV-positive, and alleges that the appearance of this advertisement has caused her emotional distress and actual harm, as it has led people to think that she is infected with HIV. Her lawsuit relies on the New York Civil Rights Law, Sections 50 and 51, which makes it unlawful for anybody to use a person’s image for trade or advertising purposes without getting their written permission, and authorizes individuals to sue for damages.

Moving to dismiss the case, Getty argued that “displaying and licensing a photograph are, as a matter of law, not advertising or trade uses” under the civil rights law, and to impose liability in this case would violate Getty’s First Amendment rights. Getty argues that it is merely licensing the photograph, and that it is the “end-user” of the photograph, if anybody, that would be liable to Nolan for its public display in this context. Getty argued that the law did not require it to “investigate the existence or validity of every image release on its database because such duty would be inconsistent with the First Amendment.” Getty also emphasized that Nolan is a model and willingly posed for a commercial photograph, so could hardly argue that the subsequent use of the photograph violated her right of privacy.

“Contrary to Getty’s argument, a claim lies for placing Nolan’s image in Getty’s catalogue, especially where plaintiff’s photograph is ultimately used in an advertisement, and the use of plaintiff’s likeness created a false impression about plaintiff,” wrote Justice Singh. Furthermore, he rejected Getty’s argument that the New York State Constitution affords “heightened free speech protections to commercial speech.” Actually, quite to the contrary, commercial speech generally enjoys less protection than political or artistic speech, and the New York courts have repeatedly rejected constitutional challenges to the Civil Rights Law, which authorizes individuals to pursue damages for unauthorized use of their photographs.

“Written consent is explicitly required by the statute,” Singh pointed out. Furthermore, as long as Nolan’s photograph was available for viewing as part of Getty’s on-line catalogue, “the plaintiff’s assertion of a website’s accessibility sufficiently meets the required statutory element of use within New York State.”

Singh also noted that in deciding a motion to dismiss, he was assuming the truth of Nolan’s factual assertions. In order to win the damages she is claiming, Nolan would have to prove at trial all the requisite elements of the claim.

The Law Journal interviewed Nolan’s attorney, Erin Lloyd of Lloyd Patel in Manhattan, who said she first learned about the ad through a message posted on her Facebook page and “became instantly upset and apprehensive that her relatives, potential romantic partners, clients, as well as bosses and supervisors might have seen the advertisement.” According to Lloyd, Nolan was “humiliated and embarrassed” when forced to “confess to her bosses that her image had been used in an advertisement for HIV services, implying that she was infected with HIV.” The lawsuit seeks $450,000 in damages, and claims that Getty has a legal responsibility to get permission from models before exhibiting or licensing their photos.

For its part, Getty says that Nolan’s picture is one of millions of images collected from photographers and generally available on its website. If it were to be held liable in any case where a photographer did not obtain a written model release, its business plan would effectively fall apart. Getty’s law firm, Wolff and Sholder, argued in the motion to dismiss that “displaying and licensing a photograph is not the same as ‘advertising’ as contemplated in the Civil Rights Law,” according to the Law Journal’s report.

New York courts have held that the Civil Rights Law provisions do not apply to unauthorized use of a photograph to illustrate a news story, and have interpreted this judge-made exception to the statute rather broadly. As long as a photograph has some sort of thematic relationship to a newsworthy story, the person depicted in the photograph has no claim to damages. Thus, if Ms. Nolan’s photograph had been used in a news story about HIV-related discrimination, she would have no claim under this statute, even if the placement or caption might lead readers to conclude that she was HIV-positive. But an advertisement — even a public service advertisement — is different.

In this case, Nolan is seeking to hold Getty, the distributor of the image, responsible for its eventual use in a commercial context, even if, as Getty argued, it may have been unaware of that potential use when it licensed the photograph. Indeed, it seems possible, even likely, that an advertising agency retained by the Division of Human Rights to devise this advertisement licensed the photo from Getty’s on-line catalogue through an automated process in which no human being at Getty participated. The court may ultimately confront the question whether it is appropriate to apply the Civil Rights Law to anybody and everybody in a chain of transactions if a photograph ends up being used in an actionable commercial context when the original creator of the image – the photographer – failed to get a broadly-worded written release from the model. Requiring photographers to submit such releases with every photograph they submit to Getty may become a requirement of the business to avoid liability if a photograph is used commercially within New York.

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