New York Law School

Art Leonard Observations

Posts Tagged ‘invasion of privacy’

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.

Federal Court Affirms $4.5 Million Damage Award Against Andrew Shirvell

Posted on: September 16th, 2013 by Art Leonard No Comments

United States District Judge Arthur J. Tarnow has affirmed a jury verdict of $4.5 million against Andrew Shirvell on September 11.  Shirvell is the homophobic former Michigan assistant attorney general who the jury found committed various wrongful acts against Christopher Armstrong, a gay man who was at the time the newly-elected student body president at the University of Michigan.  Judge Tarnow  denied Shirvell’s motions for judgment as a matter of law, for a new trial, or to amend the judgment on damages.

Shirvell, who is an alumnus of the university, was angered when he read about Armstrong’s election, becoming fixated on doing something to discredit Armstrong.  He started a blog devoted to attacking Armstrong for his “radical homosexual agenda,” claiming that Armstrong engaged in sexual misconduct in public places, among other things, with statements trading on anti-gay stereotypes.  Shirvell showed up on campus and outside Shirvell’s home, ostensibly to “document” inappropriate conduct and to protest against Armstrong.   Armstrong complained about Shirvell’s activities, which eventually led to his discharge from the attorney general’s office when an investigation showed that he had used his office computer to conduct some of his anti-Armstrong activities.  Shirvell was also barred briefly from the university campus, and his conduct was referred to lawyer disciplinary authorities and local law enforcement agencies.  The local prosecutor decided not to charge him with stalking, but Judge Tarnow found that this did not preclude Armstrong from seeking civil damages for Shirvell’s conduct.

Armstron’s lawsuit claimed that the blog attacks and stalking incidents were defamatory, an invasion of privacy and constituted intentional infliction of emotional distress.   Shirvell moved to North Babylon, New York, after losing his job, so although Armstrong’s claims all arise under Michigan state law, the case is in federal court as a suit between citizens of different states.

Shirvell’s defense, repeated over and over again unsuccessfully at trial and in his post-trial motions, was that all his activities were protected by the First Amendment as freedom of speech.  Shirvell argued that Armstrong, as the elected student body president who had put out press releases proclaiming his status as the first openly-gay man in that position, was a public figure.  This would mean that he could only hold Shirvell liable for defamation if he could show that Shirvell made defamatory statements with “actual malice,” a legal standard requiring proof that the speaker deliberately lied or spoke with deliberate indifference whether their harmful statements were true.  Shirvell also claimed that Judge Tarnow erred by not allowing him to argue to the jury that his remarks and conduct were protected by the First Amendment.

Judge Tarnow found that the question whether Shirvell’s activities were protected by the First Amendment was a question of law to be decided by the judge, not by the jury.  The jury’s role is to decide questions of fact, and in a case of this sort, that meant deciding whether the plaintiff had succeeded in proving the various elements of his tort claims.  It was up to the jury to determine whether the statements specified in Armstorng’s complaint were assertions of fact that were either true or false.  Furthermore, because Armstrong was seeking damages for emotional distress, under Michigan law he had the burden to show that Shirvell made these statements either knowing that they were untrue or with reckless disregard for whether they were true or false – the actual “malice standard” that would apply in public figure cases and that the jury would be asked to determine.

Ultimately, the jury decided that the overwhelming majority of the statements were false, and that many of them were made with actual malice.  The jury also heard evidence about the emotional distress that Shirvell’s actions caused to Armstrong, and determined how much money should be awarded to Armstrong to compensate him for this harm and to punish Shirvell for his misconduct.

Even though Judge Tarnow ruled as a matter of law that Armstrong was not a public figure and could win his defamation and invasion of privacy claims without proving actual malice, such proof would be necessary for him to win his emotional distress damage claim.  This was Armstrong’s major damage claim, because he was not alleging any significant economic injury as a result of Shirvell’s statements.  Thus, Shirvell’s continued reliance on the public figure issue in appealing the verdict seemed pointless, since the jury found that Armstrong’s evidence met the actual malice standard in order to justify the damage award.

Judge Tarnow devoted a large part of his opinion to the public figure issue, rejecting Shirvell’s argument that Armstrong’s position at the university made him into a public figure who would have to prove actual malice to win this case.  “The mention of Plaintiff Armstrong in a limited number of mostly local news publications does not render Armstrong a ‘household word,’” he wrote.  “Moreover, Plaintiff’s position as student body president did not provide Plaintiff with control or responsibility for government processes, and therefore does not qualify him as a public official.  Finally, Defendant Shirvell also fails to identify a public controversy in which Plaintiff was involved, other than the attention brought on Plaintiff by Defendant’s own statements and actions.”

Shirvell pointed to newspaper articles quoting Armstrong about being the first openly-gay student body president at Michigan as thrusting himself into public controversy, but Tarnow rejected this, writing, “Again, a matter of public interest is not in and of itself a public controversy,” as he found that Armstrong could not even be considered a limited –purpose public figure.  (A limited purpose public figure would be someone who has involved himself in a public controversy to the degree that protection of free speech on matters of public concern would require that the actual malice standard be met regarding statements relating to the Armstrong and the controversial subject.)

Shirvell’s blog and protest signs had stated that Armstrong had engaged in various kinds of misbehavior, offensive conduct, and even some criminal acts. Armstrong presented evidence that the statements were false.  At trial, Shirvell argued that his statements were either true or non-actionable statements of opinion, but the jury disagreed, and courts are loathe to set aside a jury’s factual findings, especially when the plaintiff’s evidence that the statements are false stands largely uncontradicted by the defendant’s failure to put on much of a case.  Shirvell, who represented himself at trial, only offered witnesses on the public figure issue, which Judge Tarnow found could not be presented to the jury, and provided no direct evidence that the contested statements were true.

On the issue of actual malice, Shirvell rested largely on his own testimony that he believed all the statements he made about Armstrong to be true, but his testimony provided no factual basis for those beliefs, and the court found that neither at trial nor in his post-trial briefs had he even bothered to address a large number of the statements that were in issue.  Judge Tarnow noted that the post-hearing briefs made “specific reference to less than half of the statements at issue in this case.  Of the unspecified statements, Defendant also fails to delineate which statements he alleges are true, which are allegedly protected opinion speech, and which are allegedly rhetorical hyperbole.  This Court cannot dismiss the jury verdict based on Defendant’s generalized claims.”

The judge also rejected Shirvell’s arguments against the size and scope of the damage award, finding that it fell within the normal range for cases involving this type of behavior by the defendant.

Shirvell received volunteer legal assistance on his post-trial motions, and will likely seek to appeal the court’s rulings, since he continues to maintain that all his conduct connected with Armstrong is shielded by the First Amendment.