Stock images, stock footage, and stock music are fantastic resources when you need material for your website, advertisements, video productions, and other creative projects. Using stock materials can lower costs, legal risks, and administrative work – if used properly. Proper use is key as there are definitely incorrect and risky methods of using stock materials.
HIV Ad Results in Lawsuits against Getty Images and Advertiser
In April 2013, the New York State Division of Human Rights released an advertisement advocating rights for people who are HIV-positive. The ad featured a picture of Avril Nolan with the caption “I am positive (+),” and, “I have rights”. You can see the ad in the New York Post coverage.
However, Nolan is not HIV positive and did not consent to the use of her image in the ad. The New York State Division of Human Rights obtained Nolan’s picture from Getty Images, a well-known stock image company. Getty Images obtained the picture from photographer Jena Cumbo, described as an acquaintance of Nolan, who took the picture.
The incident resulted in Nolan filing lawsuits against both the New York State Division of Human Rights and Getty Images. I initially blogged about this incident in 2013. Since there has been some resolution to the legal proceedings, I thought it worth re-visiting the mistakes made by the New York State Division of Human Rights, by Getty Images, and by the photographer.
The New York State Division of Human Rights’ Mistakes:
Kudos to the New York State Division of Human Rights (NYSDHR) for licensing the image from a reputable stock image company rather than allowing its staff to meander the internet in search of images to cut and paste. (Some companies do that for their social media posting needs and it often does not work out well.)
NYSDHR Mistake One. Unfortunately, no one at NYSDHR read the Getty Images license agreement. The NYSDHR staff person who made the online purchase clicked through the license agreement while downloading the Nolan image but did not read the license agreement which contained the following provisions:
"2.6 Pornographic, defamatory, or otherwise unlawful use of [stock images] is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. (emphasis added)
2.7 “If any [stock image] featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person”, the stock image must be accompanied by a disclaimer indicating “that: (i) the [stock image] is being used for illustrative purposes only; and (ii) any person depicted in the [stock image] . . . , is a model."
NYSDHR Mistake Two. Several NYSDHR staff people reviewed and/or participated in preparation of the ad. Yet, none of them considered the implications of using the picture of a woman who’s not HIV positive as the focal point of an “I’m HIV-positive” advertisement.
The Outcome for NYSDHR. Those actions constituted negligence by NYSDHR. As a result of negligently labeling Nolan as HIV positive in its advertisement, NYSDHR was found liable for defamation and for violation of Nolan’s privacy rights in a summary judgment motion (Nolan v. New York, 2015 NY Slip Op 32023(U) (Court of Claims, Oct. 18, 2015). The Court of Claims left the issue of NYSDHR’s damages for a subsequent trial.
Getty Images’ Mistakes:
Getty Images’ Mistake One. During the purchase process, Getty incorrectly informed NYSDHR that Nolan had signed a model release and that the image was available for commercial use.
Getty Images’ Missed Opportunity. During the purchase process, Getty learned that NYSDHR would use Nolan’s image for advertising. However, Getty did not make any inquiries regarding the advertisement’s subject matter. Since not all purchasers are going to read Getty Image’s eight-page licensing agreement, the purchase process presents a good opportunity for Getty Images to highlight the additional steps required prior to using stock images in an ad about a sensitive subject.
The Outcome for Getty Images. Nolan sued Getty Images for using her image for trade or advertising purposes absent any written consent in violation of New York Civil Rights Law §§ 50 and 51 (the state’s privacy laws). Getty tried very hard to get Nolan’s complaint dismissed by pushing any liability onto NYSDHR and the photographer. Getty’s arguments included the following:
- Getty had a First Amendment right to display Nolan’s image in its database and license the image to the press;
- Neither NY Civil Rights Law nor the First Amendment required Getty to investigate the existence or validity of every image release within its database
- Nolan was a model and such status negated her privacy claim.
The court disagreed with Getty finding that Nolan had a valid claim against Getty for placing her image in the Getty catalogue, especially where that photograph is ultimately used in an advertisement in a manner that created a false impression about Nolan. According to the court there were many factors that needed to be resolved via summary judgment or trial:
- whether Nolan is a model,
- whether Nolan signed a written release,
- whether Civil Rights Law §§ 50 and 51 required Getty to investigate the existence of a release signed by Nolan,
- whether the First Amendment protects Getty's exploitation of Nolan's image without Nolan's written permission,
- whether Getty's inclusion of the image in its database of images available for licensing qualifies as use of the image for either advertising or trade purposes, and
- whether Getty can shift to NYSDHR and the photographer the burden of obtaining Nolan's written consent.
Getty decided not to pursue answers to those questions and settled with Nolan in January 2015.
The Photographer’s Mistakes:
Nolan posed for the photograph in May 2011 in connection with an article in Soma Magazine about New Yorkers interested in music. Nolan did not receive payment for the photograph, did not sign a written consent form, and did not grant permission for use of the photo for any purposes other than the Soma Magazine article. The photographer provided that image to Getty for inclusion in its stock image database.
According to Getty, as part of that transfer, the photographer signed Getty Image’s contributor agreement. I just took a look at Getty Images contributor agreement and it does require that those submitting images to Getty obtain valid model and property releases where necessary in accordance with the Submission Requirements. It took a lot of clicking through other areas of Getty Images website to determine when those Submission Requirements deem it necessary to obtain model and property releases.
Ms. Nolan did not sue the photographer. The photographer likely does not have the deepest pockets of the parties involved in this affair. She and Ms. Nolan might also be friends or at least social or professional acquaintances. While it appears that the photographer escaped unscathed, she likely did not strengthen her relationship with Getty Images and Getty Images might pursue her for reimbursement of any settlement feeds paid to Nolan. The Getty Images contribution agreement does include indemnification provisions.