Aids Ribbon

Albany – A woman depicted as an HIV victim in a state public service announcement can sustain a civil rights lawsuit against the stock photo company that provided her picture to the government agency, a Manhattan judge has held.

Supreme Court Justice Anil Singh (See Profile) rejected Getty Images’ motion to dismiss the complaint in a case that could turn on the responsibility, if any, of an image distributor to determine whether a model had signed a release with an independent photographer.

Nolan v. Getty Images, 158540/13, centers on a Brooklyn woman whose image was provided by Getty to the state Division of Human Rights.

Avril Nolan’s picture appeared in an advertisement the agency placed in a free daily newspaper, AM NY, with the caption: “I am positive (+) and I have rights.” It goes on to state that HIV-positive individuals are shielded by the state Human Rights Law.

Getty obtained the image from a photographer, who did not have a release from Nolan to use or sell her image, according to the decision.

Nolan responded with an action citing two provisions of the state Civil Rights Law, §§50 and 51. Under §50, the unauthorized use of an individual’s name or picture for advertising purposes constitutes a misdemeanor, while §51 provides a right to sue.

In her complaint, Nolan claimed that even if the photographer had her consent to sell the image, Getty had an independent obligation to obtain her permission.

Nolan’s attorney, Erin Lloyd of Lloyd Patel in Manhattan said her client found out she appeared in the ad through a message posted to her Facebook page and “became instantly upset and apprehensive that her relatives, potential romantic partners, clients, as well as bosses and supervisors might have seen the advertisement.” She said Nolan was “humiliated and embarrassed” when forced to “confess to her bosses that her image had been used in an advertisement for HIV services, implying that she was infected with HIV.”

The suit, alleging that Getty cannot simply rely on independent photographers to obtain necessary permissions and turn a blind eye to its own obligations, seeks $450,000 in damages.

In response, Getty—represented by Nancy Wolff and Scott Sholder of Cowan, DeBaets, Abrahams & Sheppard in Manhattan—claimed it did nothing more than include Nolan’s likeness among the millions available through its website and make it available for licensing.

“[G]etty was not the sponsor, creator, or publisher of this [public service announcement], or the associated text; rather, Getty images merely licensed the copyright in the image to a third party through its website in the ordinary course of its business,” the defense said in its motion to dismiss. “Nonetheless, Plaintiff singles out Getty Images— not AM NY, not [the state agency], and not the individual photographer—and accuses Getty Images alone of violating her right of privacy.”

Wolff and Sholder argued that displaying and licensing a photograph is not the same as “advertising” as contemplated in the Civil Rights Law. They also claimed the application of the law requested by Nolan would violate the free speech clauses in both the federal and state constitutions.

But Singh declined to dismiss the case.

“Contrary to Getty’s argument, a claim lies for placing Nolan’s image in Getty’s catalogue, especially where plaintiff’s photograph is ultimately used in an advertisement, and the use of the plaintiff’s likeness created a false impression about the plaintiff,” Singh wrote. “Also contrary to plaintiff’s contention, the New York State Constitution does not afford heightened free speech protections for commercial speech.”

Singh said several issues remain for trial, including: whether Nolan is a model, whether Civil Rights Law required Getty to determine if she had signed a release and “whether Getty is able … to shift to the end user and the photographer the burden of obtaining Nolan’s written consent.”