Imagine one day you let a photographer, maybe even a friend, take some photos of you. Then imagine that a few years later your friends and colleagues alert you that you are the poster child of an HIV positive ad in a free AM New York Newspaper. This appears to be the situation for a Brooklyn woman now suing Getty Images for the infraction.
Avril Nolan, seen above, does not have HIV yet an image of her is being used in an ad with the slogan “I am positive (+),” and “I have rights,” reports the New York Post article. This, as I could imagine, could be a damaging situation to be in as a working professional. Even more confusing, to me at least, is how Getty Images published a stock image of Miss Nolan without her written consent. I say this because the submission requirements are very detailed and specific, which I've listed below directly from the Getty Website.
From the Getty Contributors Guidelines PDF.
RELEASES: SUBMISSION REQUIREMENTS
Digital Model and Property Releases must be provided with each submission as detailed below.
Each model and property release must be named with a ‘Release Reference’ that is unique within
the relevant submission and be no more than 32 characters in length.
- The Release Reference and the filename of the digital release must be exactly the same, including the .jpg or .pdf extension.
In the Metadata Template, the Release Reference must be entered in the ‘Release References’ column for all model and property releases associated with each submitted Hi-Res Image File. It is particularly important that the exact filename of the release is entered, as we will use an automated computer script to match releases to Hi-Res Image Files from the data you supply.
Submission of Releases
Releases must be stored separately in an electronic sub-folder of the relevant submission folder on the submitted media (for an example, please see page 2) and must conform to the following requirements:
- File size: approximately 1MB
- Scan size: 100%
- Resolution: 72 dpi
- Color mode: RGB
- File type: JPEG, with .jpg extension attached or PDF, with .pdf extension attached.
Please note that images will be returned to a contributor for resubmission if releases are either missing, incomplete, invalid or the release key is missing from the metadata.
Except as provided by the terms of your Contributor Agreement, you must supply digital copies of valid releases where appropriate for each Image at the time that the Image is submitted (for certain exceptions in the case of unreleased travel material please see page 12). You must attach a visual reference of the model or property to the original release, which must be attached before you scan or capture the release– it cannot be a separate file. Upon request, you
must re-submit copies of any releases. You must not supply any Image that requires a release and for which you do not have a release at the time of your submission. You must conform to the Submission Requirements that are in effect at the time of submission regarding the sufficiency of releases in various countries. We may revise our Submission Requirements from time to time in our sole discretion, with prior written notice to you, with the revised requirements applicable to Images submitted after notice of the revision.
We require you to use Getty Images Mandatory Model and Property Releases as directed and supplied on www.gettyimages.com/contributors, with the exception of where shoots predate the effective date of the new releases or where images were originally shot as an outside assignment requiring the use of a client's release. We will reject any copy of a new release that is submitted without all the mandatory fields being completed
It is mandatory that all fields in Getty Images releases are filled in, with these exceptions:
- Model’s telephone number: recommended but not mandatory if not available;
- Model’s E-mail: recommended but not mandatory if not available;
- Ethnicity: strongly advised provided the model will agree to enter the information
- Shoot Reference
- In the property release, only one information box need be completed depending on whether the property owner is an individual or a corporation.
END OF DOCUMENT
With all of these strict requirements, it's hard to believe that something wasn't signed by someone at some point along the way. Having said that, is it likely that someone else signed these documents or forged them in order to get the submission to Getty on the model's behalf? With such little information available it's hard to know who exactly is at fault here but I'd like to bring up the fact that photographers should go above and beyond to be diligent about their paperwork and release forms in situations like these with copies and redundancies.
Another good fact to bring up to photographers selling their images as stock is to be clear to your models what the images could be used for. While this is a pretty worst case scenario situation for Miss Nolan, it could happen to your clients. If she had actually had signed the release forms, she could potentially have no case whatsoever against Getty Images who have the rights to use the images in almost any manner they see fit, without contacting you. Keep in mind that this type of situation could land you in hot water with your clients if you aren't crystal clear on where these images could end up.
Has anyone had similar situations like this?
UPDATE 9/22 11:45AM CST: Getty Images responds to this article with the following in an e-mail to me: "Statement from Getty Images – 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."
It is an ethically dubious use of the image no matter whether she signed away her rights or not. As a social issue campaign, viewers expect a certain level of honesty they wouldn't from a consumer product ad.
Also, how hypocritical is it to have a campaign about elevating the perceptions and recognizing the rights of HIV positive people, and not use someone who is HIV positive.
Yes, I completely agree with you, but that is an error of the company that did the campain, that used stock photos, not Getty. Getty sells them, then what you do with them is your problem. But this is a moral thing, not a legal thing.
The other problem, getty having the right in the first place is a legal problem. And maybe it could not be gettys error too, but of the photographer. I doubt getty checks every model release.
That was my point exactly. There are legal issues with the photographer and stock company regarding the release, but there are also ethics issues regarding the campaign using stock images to begin with.
If an African food aid campaign (just to use a prolific example) says "this African child is starving", the viewer/reader expects that they are not using a staged/stock photo of a middle class American child. The same holds true for this campaign.
I think someone may be confusing photojournalism with commercial. I do not expect the actors of Ford have Ford cars, and I don't expect people in aids commercials to have aids. I do expect image veracity from news, however. Not the same thing.
Commercial and social campaigns are where the confusion apparently lies.
People expect different things from advertisements selling products vs. ones from government agencies and charities enacting social change.
Besides, although leeway is allowed for commercial advertisement, there are still restrictions on what they can and cannot claim depending on how it misleads the consumer. The most obvious one is the disclaimer that the person in the commercial is not who they claim to be ("paid actor, not a real doctor", "... not actual patient").
This is not an issue of advertising vs social campaigns.
This falls under "sensitive subject" category. The NYDHS is defaming the person in the stock photo by saying she has HIV. Even if she did sign a blanket model release, sensitive subject use requires additional licensing.
Istockphoto (which is a division of Getty) mentions it here: http://www.istockphoto.com/article_view.php?ID=616
You are right, that is the subject of the article and the model's lawsuit.
I was bringing up the fact that there is ALSO a second ethical (and possibly legal) issue not concerning the model's lawsuit that has to do with advertising standards and when it is appropriate to use stock images.
That's what I was thinking too, that it was a tad hypocritical of them to use someone not HIV positive, surely that is discrimination, the very thing they're trying to stamp out.
The problem is the entire stock industry's "don't ask, don't tell" policy. No one at stock companies seem to ask or care where these images come from, or how they ultimately end up getting used. The photographer and model are always left holding the bag, while the stock companies reap all the profit and remain blameless. Photographers need to retake the marketplace and stop relying on stock agencies for nickels and dimes.
True, as well as models should in my opinion. For products the stock photography might be fine, but such a mass market for people can get dangerous as we see in this case. I doubt that models make much money with stock photography projects, so it might be a good idea to deny the stock usage in their releases. But who checks the details of releases ... it's a mess.
when you deny stock use as a model they will book someone else...
I think this crosses the legal lines about privacy about someone's HIV status. You can't go saying someone is HIV positive (or negative) without their consent. If the ad had not flat out stated "this person has HIV" and was more like "support is out there" or "everyone needs help sometimes" then it would be much more acceptable
I also wonder if the standard stock release would protect the agency from these sort of legal issues.
For instance, because the ad essentially out right says "I have HIV", could this be a case for libel? Is the standard release so watertight that a model has NO control over what is associated with their image even in extreme cases? Could agencies actually defame models with no legal recourse? For example, could I purchase as stock image of a man, then create billboards across the country stating "this man is a pedophile"?
the info is easy to get.. just read the contracts.
and yes you can give buyers the right to use your material for such "sensitive" stuff... or not.
my stock companys give me that choice. it´s a click on a checkbox.
Since posting this, I talked with a lawyer friend about this. This is what he had to say:
1. Contracts (such as a model release) are only part of the agreement between models and photographers. There may be verbal or implied agreements, plus reasonable expectations under the law.
2. Contracts are not as ironclad as people assume. They are fairly easy to get around. Contract interpretation is what civil courts are all about.
3. In a case like this, there are multiple laws and both explicit and implied rights that contradict each other. Signing away rights to an image does not sign away rights to all your privacy (including false medical statements) nor does it give the photographer the right to use that image to make distorted or false, personal claims directly about the model in question (which might be the case here).
4. There is an assumption of the model being an informed participant when signing the contract. If the photographer led the model to believe that there were specific uses for the image (even casually mentioning possible usage, but not including such sensitive campaigns) that may constitute a verbal contract that contradicts the written one— which in some states might trump the written contract, or even constitute fraud.
5. Courts consider realistic expectations when considering law. If a court could believe that there was a realistic expectation that the image would not be used in such a way, it cold nullify it in this case.
In summary, he wanted to make clear that a written contract is never rock solid, especially if it is as broad as a general model release (the more detailed the contract the more solid it is). He also made it clear that courts consider other things when interpreting law, such as contradictions between lawful rights, realistic expectations by the participants, explicit versus implied rights, and— probably most important to this situation— the scope of damage to each individual when different interpretations are applied
that´s why nobody in my family will sign a model contract.
Update from Getty: "Statement from Getty Images – 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."
Woohoo, watch as Getty passes the buck. It wasn't us, it was them...round and round we go.
Okay, Getty Images says that they relied on the photographer's documentation. Where's the followup with Getty and the photographer?
This isn't Getty's fault. Or the Photographer's or the Model's. This is squarely misuse on the behalf of New York State Division of Human Rights.
From Getty's Licensing agreement:
3.5 If any Licensed Material featuring a model or property is used in connection with a subject that would be unflattering or unduly controversial to a reasonable person, Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.
3.6 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. Licensee shall also comply with any applicable regulations and/or industry codes.
Judging by the quality of the graphics - looks like some intern at the agency didn't understand the ethics of using stock photography in a sensitive subject such as this. It's quite disgusting that this comes from people who are supposedly on the side of securing people's rights.
This happened to Joey in an episode of Friends.
ASMP specifically calls out this scenario in its model releases.
Can you update your editorial with a few links? Here is what the ASMP says about model releases specifically relating to sensitive subjects:
http://asmp.org/tutorials/adults-model-release.html#.UkChomQ4WyQ (via Lou Faolla)
Here is a very similar editorial that Patrick Hall posted two years ago:
Why did the NYS dept of Human Rights purchase a photo of a model who doesn't actually have HIV?
This is the problem. Getty Images does hire photographers to take photos of certain subjects. Most are models in different situations and realities. Getty is very strict with this. Especially because they must rely on the photographers to submit all the proper documentation. Copy of ID for proof or age, release forms for their image and distribution...etc. The same with Corbis.
Actually, the people here to blame is the agency or the designer that created the ad in the first place. Getty requires if a image is used in any national advertisement, campaign or public promotional materiel or POS to agree with the photographer on exclusive rights. Most skip this step to save money.
John is right. Getty has their butts covered well. They will point to who is really at fault here. Unfortunately, it will be the agency, graphic designer or art/creative directors that created the campaign. Meaning someone(s) is going to lose their job(s) because they were either inexperience or too cheap to do it correctly in the first place.
There is nothing illegal or unethical going on. A standard model release for stock indicates that the image may be used or licensed for any purposes and that the model agrees not to hold the photographer or licensee liable for damages if the image is used in a campaign that portrays the model in a way they don't care for. This includes political endorsements for politicians the model might hate or embarrassing subjects like incontinence or HIV. Models who are cast specifically for a less flattering campaign such as hemorrhoids, acne or HIV usually get paid at a higher rate because they are associating themselves with something unflattering. That is the risk of signing a stock photo release. Let the buyer beware and read those contracts. Stock agencies like Getty require airtight releases that spell all of these issues out for the model or Getty will not license an image.
I strongly disagree with arguments here about "moral" or "ethical." Most of us would cry "unfair!" if we spent money for a shoot with a model, they signed a release and then they later hired lawyers to block the use of that image which had already been sold to a client. Adult models and the parent/guardian of child models has a responsibility to read every word of a model release and ask questions. If you don't want to potentially be used in a campaign for yeast infections, head lice or tampons, it is probably best not to do stock photo work where you choose to sign away the right to decide what campaigns you don't want to work in.
Most social service agencies have tiny budgets and it the ad did not have the budget to hire a photographer and model to shoot an original photo.
I am personally disappointed that an educational site like F-Stoppers wouldn't also include definitive comment by a lawyer specializing in photography law. If the model signed the type of release required to sell your stock photo at Getty, the opinion being posted in "comments" is irrelevant. She or her parents signed a perfectly legal release allowing her image to be used in this HIV campaign. She has no legal grounds stand on. She might regret signing the release but once it was legally signed it was legally signed.