For those readers who cling to the absurd notion spread by your comrades that written, signed model releases aren’t really that important, be warned that this article will upset you. We hope it scares the heck out of you.
Here are the relevant facts and portions of the March 6th decision of Justice A. Singh in the case of Avril Nolan v. Getty Images (US), Inc., heard in the Supreme Court of NY in NY County.
Photographer Jena Cumbo sent her stock agent Getty, a photo that included the image of Ms. Avril Nolan a healthy 25 year old. The photographer did not obtain a written signed model release from Ms. Nolan.
The image was then licensed by Getty for a (purported) public service advertisement placed by the NY State Division of Human Rights in a free but widely distributed daily newspaper, AM NY. The caption accompanying Ms. Nolan’s image stated, “I am positive (+) and I have rights” and “People who are HIV positive are protected by the NY Human Rights Law. Do you know your rights? Contact the NY Division of Human rights….”
Ms. Nolan sued under the NY Civil Rights Law Sec. 50 & 51 which (as we state daily clearly requires a signed model release for use of an image for the purposes of advertising or trade. Getty sought to have the case dismissed before trial essentially on three grounds.
A. It had First Amendment rights to license the image to the press.
B. It had no responsibility to check to see if this image (or others in its collection) were model released.
C. It was not the “end user” who actually published the offending image and thus was off the hook.
We were utterly unsurprised that the Court didn’t buy what Getty was trying to sell it. In plain English Judge Singh held that:
1. Getty is not immune from liability simply because the image appeared in a newspaper.
2. If the use by the end user is not lawful, then Getty’s sale of the license to their client may not be lawful.
3. The appearance of the image in Getty’s catalog “for trade or advertising” may serve as a basis for the plaintiff’s action (especially) when the use of the image creates a false impression about the subject.
4. There is no heightened constitutional protection for this commercial speech.
5. The NY Civil Rights Law does not explicitly define “trade” or “advertising” but that it clearly was drafted to, “protect the sentiments, thoughts and feelings of individuals”. (Ed has had similar cases where so-called PSA’s were treated as “advertising” or “promotion”).
The case will now go forward and Getty will need to convince a jury that it should not be held liable by coming up with some additional facts so as to blame it’s client and/or photographer and/or somehow “prove’ that this use which advocates and/or promotes the services of a government agency does not qualify as “trade” or “commercial” purposes. We wouldn’t bet on Getty’s success in that effort.
The judge clearly was convinced that Ms. Nolan has plead enough facts and used the correct law to entitle her to get to a jury and have a trial. Potentially Ms. Nolan may recover exemplary damages as determined by a jury. Simply put, NY Law allows for a jury to set a financial award, which may far exceed the sum(s) a person would have agreed to accept to be in an ad, if indeed they would agree at all. Oft times, as here, the subject would not for any fee permit herself to be portrayed in a false or damaging light as say a murderer, pedophile, drug addict, child abuser or merely as endorsing or promoting a product or service with which he/she may have issues. The jury may compute an amount to serve as a punishment to the offender.
Getty never bothered to ascertain whether there was a release before taking the image into its archives nor before licensing it. The contributor/photographer never obtained a release. A single piece of paper bearing a signature would have prevented this mess from ever occurring. The attorneys fees spent and to be spent, will likely go into the hundreds of thousands of dollars. At the end of the day, a jury may award Ms. Nolan anything from zero to seven figures.
The next time someone pooh poohs the need for a model release, take a moment to think whether you can afford to run these types of financial risks in real life.