New York Court of Claims Judge Thomas Scuccimarra has ruled that the New York State Division of Human Rights defamed Avril Nolan, a model whose photograph the Division purchased from Getty Images to use in advertisements intended to inform the public that discrimination against people living with HIV is unlawful in New York. Scuccimarra’s ruling in Nolan v. State of New York, No. 123283, reported on October 27 in the New York Law Journal, was the second win for Nolan, who had also sued Getty Images in New York County Supreme Court and won a ruling on March 6, 2014, from Supreme Court Justice Anil C. Singh, refusing to dismiss her complaint against Getty Images for selling her photograph to the Division without her permission. Justice Singh’s unpublished opinion is Nolan v. Getty Images (US), Inc., 2014 NY Slip Op 30564(U).
According to Nolan’s complaint against the State Division as described in the Law Journal report, she allowed photographer Jena Cumbo to take her picture in 2011 for use in a feature on New Yorkers interested in music for an online publication, Soma Magazine. Nolan did not sign a model release, did not specifically authorize any other use of the photograph, and was not paid for it. Nonetheless, Cumbo sold the photograph to Getty Images, which in turn licensed it to the State Division of Human Rights for use in its anti-discrimination advertisement and poster.
The advertisement appear in April 2013in print editions of Newsday, Metro, and AM New York, and was published in on-line websites by Metro, the Journal News site LoHud.com, and the Albany Times-Union site capitolconfidential.com. Next to Nolan’s photo were the captions “I AM POSITIVE (+)” and “I HAVE RIGHTS,” and the advertisement also stated that people living with HIV are protected against discrimination under the state’s Human Rights Law. The clear implication, alleged Nolan, was that she is HIV-positive when in fact she is not.
The earlier lawsuit against Getty Images was a seemingly straightforward application of the state’s privacy statute, which forbids the publication of a person’s image without their written consent for purposes of advertising or trade usage. Getty had argued that since the Division of Human Rights is a government agency and the advertisement was not published for purposes of selling goods or services, Getty should not be held liable under the law. This argument was unsuccessful because Getty purchased the photo from photographer Cumbo in order to license its use to ultimate publishers for a fee. Justice Singh characterized Nolan’s argument against Getty as follows: “Nolan argues that the law places a clear duty on those who trade in photographs and advertise photographs for commercial use, to obtain the written consent of the subject.” Rejecting Getty’s motion to dismiss Nolan’s claim, Singh wrote, “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 plaintiffs likeness created a false impression about the plaintiff,” that she was HIV-positive.
Nolan’s lawsuit in the Court of Claims against the State Division of Human Rights, while building on the privacy statute and pointing out that State Division made no effort to determine whether Nolan had authorized the use of her photograph in its advertising campaign (of which she was totally unaware), further claimed that the anti-discrimination advertisement, by implicitly labeling her HIV-positive, can be presumed to have caused her actual monetary injury as well as harming her reputation in society.
Judge Scuccimarra agreed with Nolan that falsely labeling somebody HIV-positive would be considered “per se” defamation under New York law. That is, the court would presume that somebody so falsely labeled would suffer an actual injury beyond harm to her reputation. An initial finding that the advertisement would harm Nolan’s reputation was merely the first step to analyzing her claim. Since she did not specifically allege any particular economic injury as a result of the ads being briefly published — they were withdrawn from publication as soon as she complained to the State Division of Human Rights — she could only maintain her lawsuit if this case falls into the category of “per se” defamation, where the court finds that under the circumstances actual injury can be presumed.
Scuccimarra characterized this as a “thorny” issue, in light of the “shifting attitudes” of society, which have been reflected by a recent ruling, Yonaty v. Mincolla, by the Appellate Division in Albany, that falsely calling somebody gay is no longer deemed “per se” defamatory under New York law. Scuccimarra noted that the “per se” defamation category has traditionally included falsely stating that somebody is afflicted with a “loathsome” disease that “arouses some intense disgust in society.” The attorney for the state argued that there was no New York precedent holding that HIV or AIDS is a “loathsome” disease for this purpose. While implying some reluctance to label those living with HIV in this way, and noting the lack of direct New York precedent, the judge concluded that societal prejudice against HIV-positive people justifies including it within this category.
“Viewed under the current societal lenses,” he wrote, “the asserted defamatory content here, that Ms. Nolan is presently diagnosed as HIV positive, from the perspective of the average person, clearly subjects her to public contempt, ridicule, aversion or disgrace and constitutes defamation per se. It would be hoped that an indication that someone is suffering from AIDS or that she has been diagnosed as HIV positive would not be viewed as indicative of some failure of moral fiber, or of some communicable danger, however our society is not so advanced.”
Scuccimarra considered it of “no moment” that the photo was used in a public service advertisement rather than a commercial advertisement when considering the part of Nolan’s lawsuit based on the civil rights law’s privacy provision. He found that there was no dispute that she never provided written consent for this use of her photograph, beyond photographer Cumbo’s original use described above, and that State Division made no attempt to contact her and obtain her consent. Having found that Nolan stated a claim under the Civil Rights Law and defamation law, Scuccimarra indicated that the next step will be a hearing on damages.
Nolan is represented by Erin Lloyd with the firm of Lloyd Patel. Lloyd told the Law Journal that they had hoped the case could be resolved without the need for lengthy litigation over damages, but they were ready to go to trial if necessary. Assistant Attorney General Cheryl Rameau of the New York State Law Department defended the State Division of Human Rights. The state could obviate the need for a trial on damages by making an appropriate settlement offer.