NEW YORK: Appeals Court Rules Woman May Sue State Over Photo Used In HIV Awareness Campaign

The New York Daily News reports:

A Brooklyn woman’s lawsuit against the state for using her photo in an ad promoting the rights of HIV-positive people can proceed — because society has yet to fully accept people who have the virus, an appeals court ruled Tuesday.

Avril Nolan — who does not have HIV — sued the state’s Division of Human Rights in 2013 for $1.5 million, alleging it had improperly used her photo obtained through Getty Images in an advertisement.

“I am positive, I have rights,” the ad read, alongside a picture of Nolan. It ran in three newspapers and on three websites. The decision by the Appellate Division First Department, which found HIV “continues to be a significant stigma,” is the first of its kind in the country regarding a defamatory statement about the disease.

The state had argued that the public’s “acceptance” of high-profile HIV+ persons like Charlie Sheen and Magic Johnson proves that HIV is no longer considered a shameful condition.

Getty Images has already reached a confidential settlement with the woman. Getty’s licensing agreement stipulates that their images may not be used in a way that could be considered “unflattering or controversial to a reasonable person.”

  • Do Something Nice

    I hope she wins. It is immoral to use someone’s photo this way.

    • Buford

      It’s not immoral. Just lazy.

    • Frostbite

      Then she shouldn’t have her image up on a stock photo supply house for sale. She has no control over what it is used for.

      • Do Something Nice

        You are wrong: “Getty’s licensing agreement stipulates that their images may not be used in a way that could be considered “unflattering or controversial to a reasonable person.” “

        • Buford

          She’s claiming that she was harmed by the state’s violation of the Getty licensing agreement. That’s an interesting argument specifically because models do not normally have any say-so about how photos of them are used.

        • gaycuckhubby

          So then, the legal argument hinges on whether HIV is unflattering and controversial.

          • Buford

            … AND whether she actually has any say-so in how her picture was used since Getty owns all the rights to the photo.

          • Do Something Nice

            The court has already ruled on that.

          • gaycuckhubby

            I know.

        • Frostbite

          If you’re going to quote, please use the whole paragraph and not just pick and choose:

          “No Sensitive Use Without Disclaimer. If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for content marked “editorial” that is used in a non-misleading editorial manner.”

          https://www.gettyimages.com/eula

          • Do Something Nice

            I quoted Joe’s post. Fuck off.

          • Frostbite

            Try doing some actual work yourself instead of being lazy.

          • Do Something Nice

            Blocked. Again fuck off.

          • Frostbite

            Flagged. What is it with the disturbed individuals on Joe’s today?

      • leastyebejudged

        The courts disagree with you and your idiot up-voters !

  • BeaverTales

    How hard is it to ask a person’s permission to use their pic for an advertising campaign? Whoever failed to obtain it should be responsible for any settlement or fine, not the taxpayers.

    • Buford

      Models/subjects agree to pose for pics, but the pics are owned by the photographer. They normally have no say-so in how the pics are used, and its unreasonable to think that the photographer would seek permission from them. That’s what the initial release agreement is for.

      • Gustav2

        Getty Images probably decided to pay a much lower amount than the cost of litigation.

      • Do Something Nice

        So you think signing a release would exempt an entity from liability if they posted an ad like this?

        “Keep a watch out for child molesters like Buford in the photo below.”

        • Buford

          We’ll find out. If it were slam-dunk that she was legally wronged, this wouldn’t be news. The fact is that the judge may well decide that Getty was wronged but the model in the photo has no standing in this situation.

        • Chris

          It is honestly an “iffy” area. There are very few actual limits placed on the usage of stock photos, next time I buy from Getty I will need to check and see if there is language about presenting a model in a defamatory way, which is probably why this was allowed to proceed. But I will give you an example from my own life. I had done an advertisement for a bar, used stock photos from a reputable service. The model then demanded that the poster be taken down because she didn’t believe in the consumption of alcohol for religious reasons. The answer given to her by the agency, us and every lawyer she talked to was “too bad”…there is no guarantee that a stock photo will be used in a way you like once you sign that release.
          and for those saying HIPAA violation…no it’s not because they did not disclose her medical information, she is negative in real life.

    • Frostbite

      You seem to misunderstand what Getty is. Images there are purchased for use for whatever you want. They are “stock” images. If your photo is up on Getty you’ve already given consent for it to be used in whatever whoever is purchasing it for. Don’t want your photo used? Don’t sell it to Getty.

      • BeaverTales

        So if she didn’t want to be the face of HIV in an advertising campaign meant to distort her medical history, then she has no right to protest? Getty imposes no limits on the use of its likenesses?

        • leastyebejudged

          If she had lost this one she would have won her next suit that points out there’s a HIPAA violation here.

          • Snarky

            HIPAA applies to health care providers, health plans, insurance companies, etc. transmitting patient records and information. It does not cover all people talking about health matters. It especially does not cover a model asking for compensation because a state agency has published health information about her that is not true (her HIV status was entirely made up, it was not based on info originally from her health care provider). There are other laws involved, but HIPAA does not seem to apply.

      • BobSF_94117

        Not “for whatever you want”.

      • leastyebejudged

        No, you’re a liar, you can NOT use those images for “whatever you want”.

        JFC you’re an idiot.

        And your up-voters -truly retarded.

        • Frostbite

          Funny that your name is “lest ye be judged” and here you are judging me.

          In any case, ok, it’s bound by the terms of the license agreement, which, if you actually read it, is pretty loose.

          • leastyebejudged

            You’re to stupid to get irony, kill yourself.

          • gaycuckhubby

            Just stop.

          • Frostbite

            Yeah, this account is either a Russian bot or some right-wing troll..

          • leastyebejudged

            I’ve been here WAY longer than you, so kindly euthanize yourself, you lying POS.

          • Frostbite

            So you’re an old troll, go back to your bridge.

          • leastyebejudged

            Again, do kill yourself.

          • Frostbite

            Yeah, you’re a troll. Reported.

          • SkokieGuy [ChicagoAdjacentGuy]

            By many of us.

          • Frostbite

            Well hopefully Joe will take notice and do something about it. Thanks.

          • leastyebejudged

            Yeah, make this place JUST like Breitbart and every other shitty fake comments section on the internet.

            You idiots are why we lost the last election, you have your heads shoved up your echo chambers so far you can see your pancreas.

          • Frostbite

            And you’re the voice of reason? Lol.

          • Reality.Bites

            It takes a lot for Joe to ban someone. This one is easily handled individually by blocking.

          • leastyebejudged

            Kill yourself.

          • Snarky

            Did you report for Targeted Harassment, Spam or Threatening Content? There are so many possibilities that this troll offers. But I figure we have strength in numbers, and it’s best if we’re all reporting for the same thing. For example, I said the “kill yourself” posts were targeted harassment. But your mileage may differ.

          • gaycuckhubby
          • John30013

            Just block them. It worked for me.

        • gaycuckhubby

          Not for whatever they want, there are some limits, and this lawsuit is exploring what those limits are. But there are tons of advertisements for people with various STIs and for birth control and for embarrassing medical ailments and for adult diapers etc etc etc. A lot of those models come from places like Getty. Do they all have standing to sue?

  • Tawreos

    They seriously couldn’t find someone that had the look they wanted that was HIV+ and willing to participate in the campaign? In New York? Really?

    • narutomania

      Exactly. Their use of the photograph smacks of laziness on the part of whoever put the campaign (or at least the poster portion of it) together. An irresponsible and costly bit of laziness.

      • Buford

        Agree…. it’s laziness. The campaign would have been much more powerful if the subject was truly HIV positive rather than simply grabbing what was, in effect, a stock photo.

        • Frostbite

          Because photos in all advertising are truthful? Do models in advertising campaigns all use the products, clothing, items depicted? Unlikely. Party of this campaign’s message is you can’t tell who is HIV positive just by looking at them.

          PS. Advertisements for Halloween candy with “undead” children in them aren’t really taken with zombie kids.

          • Buford

            Turn down the snark, Pal.

          • Frostbite

            LOL. Welcome to the internet, “pal”

          • Do Something Nice

            This isn’t ‘all advertising.’ This is about HIV, rights and advocacy. NY has a responsibility to include a photo of someone with HIV and who has something to gain by the advocacy.

          • Frostbite

            Why does NY have a “responsibility to include a photo of someone with HIV”? That’s one of the silliest statements I’ve ever read. You’re implying that HIV positive people have a distinguishing characteristic that can be easily spotted by looking at a simple photo of them, pretty much the opposite of what this campaign is stating!

          • marshlc

            Well, no. If the point of the campaign is that you can’t tell by looking, having someone who is not pos on the poster undermines the message, at least to those who understand that she’s not really pos. The reasoning would then go “Of course she doesn’t look like she has a terrible disease – she doesn’t have it”. the ads would pack a lot more punch if they used real people with HIV, especially if they were willing to be named.

            It’s been a long time since I’ve worked in the ad business, but it used to be that this kind of public service ad was done for cost – the agency would donate its time, and some of the vendors would, too. That’s probably the explanation for why they were lazy – they’re not getting paid for this work, so there is some incentive to get it out fast and easy. It’s shortsighted, though, public service ads are looked upon with favour when it comes to awards season, and awards impress some clients, and look good on the shelf.

            So it’s worth putting some time and effort into them.

          • Frostbite

            Advertising is fantasy. The models are, models.

            You want to put an image of a wasted looking person with open lesions (plenty of those from the 80s) then you are countering the message you’re trying to put out there.

            Put an image of a “healthy” looking person then it is moot if they are positive or not. The message you are trying to convey is a person who is HIV+ looks just like someone who isn’t. At that point what does it matter if the model is or isn’t? Unless the advert is specifically stating “Hi I’m so-and-so and I’m HIV+” and this is a truthful ad then it’s all just fiction.

            Was it the cheap lazy way out vs. hunting down a HIV+ person who is willing to be the face of a public campaign? Probably. But there isn’t really any good “win” for the campaign to use someone who is or isn’t anyway.

          • marshlc

            I think there is a win, but agree that unless they are willing to be named, it’s a pretty small one. If they ARE willing to be named, it’s major.

      • Do Something Nice

        I think it is worse than just lazy. I think that public service advocacy ads need to show actual people affected, not models.

        This erodes their credibility.

    • leastyebejudged

      They’re a government agency – what is it about the government not giving a fuck about you that you STILL fail to comprehend ?

    • Reality.Bites

      They weren’t interested in finding someone – they used a stock photo.

      Even if the state could prove there’s no stigma attached to HIV (in which case the posters wouldn’t even exist), it’s still a communicable disease. I don’t think it would be right to make someone the face of athlete’s foot without their consent either.

    • Chris

      That would’ve been more involved and probably cost $$$

      • ECarpenter

        Oh, no! Doing the right thing might cost more!

    • leo77

      A royalty free stock image costs around $500.00 give or take, and you can get it immediately. Hiring a professional photographer to cast and shoot a comparable image would cost thousands and depending on scheduling and availability could take a couple weeks.

      • Snarky

        Prices for stock imagery vary based on usage. But you are correct, designers find it much easier to simply go online and find a stock image than to tell an art director that there needs to be a photo shot specifically for their needs. And often there is little or no budget for original photography.

        So the people producing this image took what they thought was the cheap route, and they didn’t do their homework on rights and usage. And now it’s going to cost them much more than it would have to just hire a photographer and a model, and do it right the first time.

      • Chuck in NYC

        “Longtime Companion” was shot on basically a shoestring because of all the donations of time and money from people in the NYC area who believed in the cause. So that kind of volunteerism/rate-cutting can’t be found in New York State for a similar cause today?

    • David Gervais

      There is an existing poster of Dr. Julio Montaner that reads something like ‘If you knew I was HIV+ would you let me be your Doctor?’. It has been displayed internationally and I’m sure it took some courage at the time.

      In this case, I am sure there are people who would be willing to be the model for this poster.

      I’m sure that the poster designer in this case could have found a model through a friend of a friend in less than a day.

      I’m looking for an image of the Montaner poster, but it might take a while, there is a lot of material to look through.

      PS If you don’t recognize the name, look him up.

      • TominDC

        I didn’t recognise the name, and I looked him up.

        Oh, my!

        ::fans self::

    • David Walker

      Rule #1: ALWAYS get a signed consent/release form. Before anything goes out of the office, be sure you have a signed consent/release form.
      Rule #2: Double check that somebody has a signed consent/release form from the model or the agency.
      I’m sorry, New York agency, but there’s no way around it. You misused her. You misrepresented her. She didn’t consent to be presented as a person with HIV. This is amateur night on your part. And if we in the flyovers know this, what’s your excuse?

      • Bj Lincoln

        Exactly. NY messed up and she deserves a nice chunk of change to compensate.

      • Frostbite

        Except NY didn’t buy the image from her directly but Getty, a stock photography service. The contact was with them, not the woman.

  • Gustav2

    To all ‘amateur’ models out there who sign the general release statement thinking it will jump start a career.

    This can happen to you.

    • leo77

      Especially in the era of royalty free stock photography. Anyone with a credit card can download an image with minimal paperwork or negotiation. You get these “Terms and Conditions” pop-ups that I’m guessing few people actually read completely before clicking “agree”. I can also see people finding words like “controversial” vague.

  • gaycuckhubby

    What if this was an ad that said “I have IBS” or “I have HPV” ?
    This is a difficult legal case, in my eyes

    • leo77

      Having worked on campaigns for Hep-C drugs and awareness I can say yes you need to get the models explicit consent.

  • SkokieGuy [ChicagoAdjacentGuy]

    I wanted to be outraged, but when I read Getty’s agreement “…that their images may not be used in a way that could be considered “unflattering or controversial to a reasonable person.” I grudgingly agree with her. BUT that assumes that images are also blocked from use for weight loss, drunk driving, getting your GED, etc. etc. Almost anything can be made to be controversial if you work hard enough at it.

    • gaycuckhubby

      Agreed… i’m glad I didn’t comment immediately after just reading the headline

      • SkokieGuy [ChicagoAdjacentGuy]

        The requirement is itself a bit odd. What about all the stock images intentionally taken to show an unflattering occurrence or emotion.

        I’m sure I could have found better examples, but with a quick search for ‘angry waiter’, this photo is captioned by Getty as ‘Waitress in Tex-Mex restaurant disappointed in small tip from customer’

        Isn’t dissapointing an unflattering emotion? Isn’t showing the model making and angry face an unflattering image? How exactly is the line drawn.

        https://uploads.disquscdn.com/images/aa6f2b4591aa7b28e4d6100b091c01569525eed234693e92319d5aa4b2ee1aff.jpg

        • Tawreos

          That model was told to look upset, the other one wasn’t told to look HIV+, there is a difference

          • Frostbite

            How does one “look HIV+” ?

          • leastyebejudged
          • SkokieGuy [ChicagoAdjacentGuy]

            You’re making the case that the model knew she would be photographed looking angry and I agree.

            But if you take an unflattering image, how can it be sold on a site who’s licensing policies specifically prohibits using them in an unflattering way?

            I guess the case I’m making is that Getty’s restrictions are overbroad and could be used to potentially bar a vast swath of their images.

          • Friday

            It takes a signed release to sell images like that (cause it needs to be there for most publication purposes) They aren’t going to get those releases if they could be used in a career-wrecking way or otherwise cause personal hardships.

  • gaycuckhubby

    Obviously she feels like she can get some money. But I don’t think this would have that much of a negative effect on her life. It would be very easy for her to say actually I’m negative, but I’m a model, and I’m happy that you used my image to fight stigma against HIV

    • leastyebejudged

      I’d sue them for violating my HIPAA rights.

      She did not consent to her medical history being made public, this was a very fundamental mistake and people should have been FIRED for it.

      • Do Something Nice

        That’s an interesting argument.

        • leastyebejudged

          It’s one that you would think the idiots at the state Division of Human Rights would have considered, if it wasn’t a state agency hell bent on ignoring exactly that.

      • Frostbite

        You’re pretty judgmental for a pastafarian. In any case, her medical history isn’t being made public. That’s a ridiculous argument.

        • leastyebejudged

          Telling everyone you have HIV isn’t making your medical history public ?

          I think you’re an idiot.

          • Frostbite

            So you believe everything you see in advertising? That explains the low IQ.

          • leastyebejudged

            lol, kill yourself.

        • Reality.Bites

          It’s a long-time troll. Block it and don’t let it win.

          • Frostbite

            That’s what is funny, what does it feel it “wins”? An argument on the internet? Might as well “win” an argument with a wall, just as meaningful. Never really understood trolls.

      • gaycuckhubby

        So no stock image can ever be used for anything medical related again? From cancer ads, to athletes foot, to scoliosis, to pink eye, to Viagra ads, to yeast infection and UTIs. A lot of those rely on stock images

        • leo77

          Pharma uses royalty free stock by the bucket full. Some companies will CYA by including a disclaimer to the effect, “Persons pictured are not actual patients.” but most don’t. So it’s not considered a HIPAA issue.

          This poster probably falls into a gray area because it’s so focused on a single individual and makes a very emphatic claim about her status.

        • Or they could, you know, ask for volunteers who actually are HIV positive and take photos of them to use.

        • ECarpenter

          Whether they rely on stock images or not, is it right to publish images of someone and say that they have HIV when you don’t know whether they do or not? You know the stigma that people with HIV have had to deal with for the last few decades.

          • gaycuckhubby

            It’s a tough call for me. I’m still not quite sure how I feel about the situation

  • Reality.Bites

    An argument that there’s no stigma attached to HIV, coming from people who saw the need to create a poster telling people with HIV that they have rights, is doomed to fail. Seriously, NY, shut the fuck up, don’t dare compare millionaire celebrities to ordinary people and settle this.

    • leastyebejudged

      It isn’t just ANY state agency that did this though, it was the fucking Division of Human Rights.

      Nobody is watching out for us.

  • Michael R
    • Chris

      LOL I was hoping someone would post this so I wouldn’t have to go look for it

    • Nax

      My first thought, “wasn’t there a Friends episode about this?” And then I wondered if it was from back when we called things VD. Both questions answered. Thanks.

  • Nate

    I can see how this might break Getty’s policy, but not sure why the state should be held liable. Is the state supposed to assume Getty is breaking their policy? They wanted a picture and bought and paid for it, was it lazy, yeah, does it means taxpayers should be on the hook for it, probably not. Not sure how will this work out legally.

    • leastyebejudged

      The state Division of Human Rights did this.

      What everybody seems to not give a SHIT about. The ONE agency you’d think would show some respect and deference to people.

      I know, that’s absolutely laughable, and so is the belief the government is looking out for us in ANY way.

    • Natty Enquirer

      The state published the picture with the words “I am [HIV] positive.” Getty didn’t do that.

    • Jack

      The state is responsible for publishing the image + message.

  • They could have avoided this if they had just asked someone who was HIV positive to step forward to be a model advocating for the rights of HIV positive patients.

    • Snarky

      I agree. So many people would be willing to be a part of a public campaign like this.

  • Ninja0980

    Memo to folks who want to do such campaigns in the future.
    Always, ALWAYS get permission before using someone’s photo in any kind of campaign.
    You’ll save yourself a lot of misery that way.

    • John30013

      Presumably they used the image in accordance with the agreement they signed when they licensed the image from Getty. Perhaps they didn’t understand that license, but they probably didn’t violate it. I’m guessing the model wasn’t fully aware of how her image could be licensed by Getty. The terms used in the agreement (“unflattering or controversial”) do seem somewhat broad, and there’s room for disagreement among the parties. That’s why we have courts of law.

  • Jean-Marc in Canada

    This is a tricky one, for a couple of reasons. On the one hand, Getty’s policy does seem to apply, though it is tenuous. The second is the fact that while I wouldn’t personally have an issue with my face being in such an ad even though I’m negative, the fact remains that for her, this was obviously uncomfortable. Her image is hers in the sense that we all want to protect what we see is our self-image and rightly or wrongly, she should have the same right. Again, I personally wouldn’t be bothered, but I’m not her and she’s not me. As for Getty, perhaps they need to codify their conditions and word them more clearly so as to avoid any future issues.