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Posts Tagged ‘Avril Nolan’

Court Orders New York State to Pay Brooklyn Woman $125,000 for Using Her Photo in HIV Discrimination Ad Campaign

Posted on: December 14th, 2018 by Art Leonard No Comments

New York Court of Claims Judge Thomas H. Scuccimarra has decided that the State of New York should pay Avril Nolan $125,000 for using her photo in an HIV Discrimination Advertising Campaign without a disclaimer that the person in the picture was a “model.” The November 8 ruling came after the Appellate Division court in Brooklyn ruled last January that the use of the photo in print and on-line advertisements, in which the statement “I AM POSITIVE (+)” appeared next to the photo, was defamatory as a matter of law, and sent the case back to the Court of Claims for a determination of damages. Ms. Nolan is not HIV-positive.

The case is Nolan v. State of New York, 2018 N.Y. Misc. LEXIS 5887, 2018 N.Y. Slip Op 51789(U) (Ct. Claims, Nov. 8, 2018).

According to Judge Scuccimarra’s opinion, “Jena Cumbo, the photographer, had taken the photograph as part of a ‘street-style’ photography piece for Soma magazine, briefly profiling those photographed about their musical interests.” Cumbo did not have Nolan sign a release and, without asking her permission, sold the photograph to Getty Images, a company that compiles and sells stock photos for use in publications, advertisements, and so forth.

The State Division of Human Rights, which enforces the New York Human Rights Law’s ban on discrimination, was planning an advertising campaign to educate the public that it is illegal to discriminate against people because they are living with HIV. Instead of finding people living with HIV who might be willing to be photographed for such advertising, the DHR contacted Getty Images and bought the right to use Nolan’s photograph. Getty mistakenly represented to SDHR that Nolan had signed a general release for use of her photograph.

The Court of Claims hearing about damages to be awarded to Nolan focused on how she heard about the advertisement, her subsequent contacts with AM New York, which ran the ad, and the DHR, and the impact its publication had on her life.

Nolan, an Irish immigrant who was working for a public relations company in the fashion industry when the ad was published, learned about the ad on the morning of April 3, 2013, when she arrived at work and saw a notice an acquaintance had posted on her Facebook page, asking whether she had been in that morning’s issue of AM New York. She later received a private message from the same acquaintance with an image of the advertisement. She testified that when she saw the image she “was completely shocked” and “confused,” seeing the “words, ‘I am positive,’ beside my face, I was devastated.” She testified that she felt her “world was just falling down around her,” especially because AM New York was a “big target” for two of her clients, including an important new one.

She got a copy of the newspaper, and testified that she felt “sick to the bottom of my stomach.” She feared for her career in the intensely competitive atmosphere of the office where she was working. On advice of a friend, she told her bosses that morning, showing them the newspaper. She testified that she was “very, very emotional” and “couldn’t stop crying” as she spoke to them. Although her bosses expressed shock, she says that they “calmly went into crisis PR mode,” assessing how it could have happened and whether any clients could have seen it. They did not fire her, as she had feared.

She contacted the photographer, her mother (a psychologist, in Ireland), some friends, and an aunt who had been her mentor when she arrived in New York. Her aunt said she would find a lawyer to represent her.

The photographer contacted AM New York, Getty and the DHR, and put Nolan in touch with a DHR employee by email, who informed her, “After speaking with a Getty representative we have been told we are not liable. We are acting in good faith to remove the image based on the model’s request.” The DHR spokesperson asked Nolan to send them an email stating she would not hold DHR liable and said, “We need the email sooner rather than later as a number of publications are on deadline and are scheduled to move forward with the campaign with Ms. Nolan’s image.” Nolan responded, “Discussing this matter to get further advice but please remove my image from the advertisements. This has already caused enough problems and embarrassment.”

After her email to DHR, Nolan heard nothing further from the State to discuss the ad, but publication was quickly discontinued. Nolan testified to suffering considerable emotional distress, but over the next few months the constant thoughts about who might have seen the ad and how it might affect her subsided, although she claimed it took “a couple years” to rebuild her confidence. It was not until the discovery process for this lawsuit that she found out that the ad had been used in four print publications and three online publications, which triggered again her concerns about how many people might have seen it. Despite a few incidents, the issue generally did not come up or have any substantial effect on her work.

When she was asked during the hearing about what this “association with HIV” meant to her, she testified that while unfortunate, there is “so much stigma around it. . . It’s not like I was in an ad for cancer treatment” where sympathy would be elicited. “There’s a lot of negativity around it,” she testified, “and there’s a lot of associations that people jump to incorrectly about your lifestyle. People think you’re easy, or you’re promiscuous. There’s a lot of just questions around your sexual behavior and your sexual activity. It makes people really think about something so personal to you. It also brings up drug use and just all of these things that I did not want to be associated with and was very embarrassed to be associated with. This goes much deeper, and it really calls into question you as a person and your lifestyle.”

Wrote Judge Scuccimarra, “On cross-examination, claimant confirmed that she did not lose her job nor did she miss any time from work when the advertisement came out. She did not lose any friends. No one other than the acquaintance who first told her about the ad, her Pilates teacher and the outside producer [from an ad shoot] ever informed her that they recognized her as the person depicted in the ad. Indeed, when claimant conducted an online search that day she was unable to see a copy of the advertisement.”

The judge reviewed testimony by several witnesses about the psychological impact of the ad on Nolan, leading to the conclusion that she had been tense and nervous in the period following the publication, but the effects dissipated with time and eventually returned to normal.

As the Appellate Division had ruled back in January, for the purposes of defamation liability falsely labelling somebody as HIV positive fell into the “loathsome disease” category, in spite of changing public attitudes about HIV/AIDS, in which some injury is presumed and the plaintiff is entitled to damages without any requirement to show financial harm. However, the amount to award is up to the discretion of the court, taking into account all the circumstances, and courts will engage in comparisons with the amounts awarded in other cases, comparing the factual situations on some rough scale of fair compensation. Judge Scuccimarra wrote, “the court credits Ms. Nolan’s assessment of a culture of competition at her job, and in the public relations field generally, that left her particularly vulnerable as a young woman to the extreme anxiety and distress she suffered upon publication of the defamatory material. The court also credits the increased anxiety she experienced when imagining how many people could potentially see the ad and make judgments about her that she feared. By all accounts, Ms. Nolan was sensitive, but had learned to hide her feelings somewhat in her two years in the competitive world of New York fashion public relations. This event credibly triggered a setback for her in her confidence and outward demeanor, but she appears to have come out of the experience. She did not lose friends or beaux, and ultimately moved on from her job and succeeded in a new venture.”

The judge decided that based on the “humiliation, mental suffering, anxiety and loss of confidence suffered by this young woman at the beginning of her career, and at the beginning of her growing independence, the vast extent to which the defamatory material was circulated – albeit for the laudatory purpose of getting public service information out to as many people as possible – and all the circumstances herein,” a reasonable compensation would be $125,000, with appropriate interest from the date of the determination of liability on June 18, 2015, which was the date when Judge Scuccamarra had first ruled in her favor prior to the state’s appeal, as well as a refund to her of the fees for filing her lawsuit in the Court of Claims.

Nolan was represented by attorney Erin E. Lloyd of the firm Lloyd Patel LLP. Assistant Attorney General Cheryl M. Rameau of the Attorney General’s Office represented the State of New York.

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

Posted on: March 25th, 2014 by Art Leonard No Comments

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.