We’ve heard and written about numerous and never ending excuses from infringers. One of the most common responses we heard goes like this: “We made no money” or “We didn’t charge any money”. The following is a current, real life court case that shows that it doesn’t matter that money didn’t change hands.
New York State Supreme Court Justice Paul Wooten has ruled that a lawsuit filed against rapper 50 Cent in New York County can proceed to trial. The case involved the posting by the rapper of a sex tape on his website which included the plaintiff, Lastonia Leviston. Ms. Leviston had not executed a written model release consenting to such publication.
She sued under the New York Civil Rights Law, which requires a signed, written release for the use of her image for purposes of advertising or trade. She also has brought a separate claim alleging the intentional infliction of emotional distress via (in part) the use of the sex tape by 50 Cent (a/k/a Curtis James Jackson). 50 Cent tried to have both claims dismissed without the need for a trial. If you want to read it, the entire court decision PDF is downloadable here: decision v 50 cent.
We have for decades discussed, written, cajoled and implored our readers to always, always obtain a signed model release for the use of a person’s image. “Yes”, there are exceptions when using an image for editorial or newsworthy purposes, but as this case amply demonstrates, better safe than sorry.
Mr. Jackson’s lawyers sought to have the case tossed based on their claim that the there was no charge to view the sex tape on line, no advertisements were sold and that the tape did not promote any of his recordings. The usage did not in their opinion qualify as “commercial or trade use”. Further, they alleged that the tape was in effect, “newsworthy” and thus a release was not required. Judge Wooten rejected – in our opinion, quite correctly – both arguments.
The Court correctly found that the use of the tape bolstered the number of hits to the site and generated interest in 50 Cent. Additionally, even if the standard for “commercial use” had not been met, the standard for “trade” use clearly had. The fact that no charge was levied for viewing the tape and/or that (apparently) no advertising was sold in connection with its use, was only part of the analysis. He rejected almost out of hand that the tape had any “newsworthy” value and correctly recited the practical, economic motivation(s) that the defendant had in running the tape without the plaintiff’s permission.
The judge also allowed the plaintiff’s separate claim for inflection of emotional distress as a result of the unauthorized use of the footage to continue. Ms. Leviston will need to prove at trial that the broadcast of the film, which has had some 3,300,000 hits, caused the emotional injuries she set forth in her complaint. She has retained doctors who have submitted reports to the Court supporting her allegations. The judge has decided to let a jury decide on the relative merits of those claims.
The take away here is yet another real life example of how to protect yourself. Any excuses not to obtain a written, signed model release are likely bogus. On the other hand you can never, ever be wrong by obtaining a written, signed model release. If this case does in fact go to trial and a jury renders a verdict, the plaintiff can receive anything from zero to a seven-figure award of money damages. Add that to the amount of attorneys fees the defendants have incurred to date and we are talking about lots of aggravation and very big bucks. We don’t know of many photographers who would not be financially ruined by a judgment against them in the high six figures.
