Model Sues Getty After Seeing Herself in an HIV-Positive Advertisement

[Greg Troy (KeepFighting)]

This was just posted over on the The Getty Images Settlement Demand Letter is EXTORTION! Facebook page by Luke McConville.  Getty is being sued by a model who lives in New York, Getty sold her image to by used as the New York poster child for HIV rights.....she is not HIV positive.

Getty continues to amaze me with the crap that they continually pull.

 
http://petapixel.com/2013/09/22/model-sues-getty-seeing-hiv-positive-advertisement/

[Robert Krausankas (BuddhaPi)]

There are many other factors to look at here.

1. The photog may have royally screwed up, by not getting a model release.
2. The photog apparently agreed to Getty's contract, but did not "fully understand the terms"
3. Getty and the model may very well indeed sue the photog.  ( I bet 10.00 this happens )..

"Cumbo (the photographer) never received authorization from Nolan to sell the photo after the fashion shoot two years ago, but she’s also arguing that the Division of Human Rights should have contacted Nolan before using her as a poster child for the HIV community.

The above implies a lack of a model release, and Nolan ( the model)  will get nowhere going after the Division of Human Rights, after all they properly licensed the image, so again this falls back on the photographer.

[Greg Troy (KeepFighting)]

Very good points Robert, thanks!

[lucia]

... Nolan ( the model)  will get nowhere going after the Division of Human Rights, after all they properly licensed the image, so again this falls back on the photographer.

I'm not sure she'll get nowhere. The ad runs a quote where the model herself is supposedly saying "I am HIV positive".  She is not HIV positive. Being accused of a loathsome disease can be 'defamation per se'. And it's impossible to view the poster as ironic, snide, indulging in hyberbole and so on. I think it's fair to say that an ordinary person looking at that poster would believe that the model in the picture is HIV positive.   Licensing an image matters for copyright, but it's irrelevant in a defamation claim. 

I don't think the photographer's screw up will help the Division of Human Rights either.  Even if a license to use the image had been valid, it might not be valid to use it in a context that makes it appear the model is admitting to the world that she has HIV.  Certainly it's pretty irresponsible for the Division of Human Rights to use the image in this way.   I suspect the New York Dvision of Human Rights may learn an important lesson: People who don't have HIV also have some rights.

[Robert Krausankas (BuddhaPi)]

All good points Lucia..

[Lettered]

I hope Getty takes a big hit over this.
Anyway, how is THIS:

"We empathize with and understand the sensitivity of Avril Nolan’s situation. Getty Images had a model release and relied upon the photographer’s documentation when we made the image available for license."

different than THIS (which would be a large percentage of the situations complained about here):

We empathize with and understand the sensitivity of Getty's situation. We had a work for hire agreement and relied upon the third party developer's documentation when we used the image on our website.

[Jerry Witt (mcfilms)]

EXACTLY! Getty relied on the claims of a third party and would like to be held blameless.

The only thing I am disappointed in is it seems Lloyd is pursuing Division of Human Rights rather than Getty Images.

_________________________________________________

 Getty did not respond to a request for comment. Lloyd said she will pursue claims against the Division of Human Rights for defamation and violation of Nolan’s civil rights. The agency also did not respond to a request for comment.

The photographer who took the picture said it ended up in the ad through a series of unfortunate mistakes. “A lot of people dropped the ball,” said Jena Cumbo. “I made a mistake. I didn’t understand my contract (with Getty).”

Lloyd said that Cumbo and Nolan are acquaintances who had shot the photo as part of an online fashion feature two years ago. Nolan never signed a release authorizing Cumbo to sell her likeness to a third party, Lloyd said.

Cumbo argued the Division of Human Rights crossed a line by casting Nolan as a victim of the deadly disease without contacting her.

Read more: http://www.nydailynews.com/new-york/brooklyn/brooklyn-woman-wrongly-depicted-hiv-positive-ad-article-1.1461694#ixzz2gDhNKSKR

[Oscar Michelen]

This falls squarely on the photographer and Getty Images. The photog should have gotten a model release and Getty should have asked to see a model release before adding the picture to their catalog.