Another Wrong Face on an HIV Story Lawsuit

Yesterday we brought you the news that Danni Ashe is suing the Daily Mail news site for $3 million for posting her picture on a story related to HIV in the porn business:

Now we have:

MANHATTAN from – – Getty let an advertisement about HIV awareness plaster the words “I am positive (+)” beside an unsuspecting model’s face, she claims in court.

Brooklyn-based Avril Nolan sued Getty on Wednesday over the full color, quarter-page ad that the New York State Division of Human Rights ran on Page 10 of the April 3, 2013, edition of the free daily newspaper AM NY.

The ad allegedly has the words “I am positive (+)” and “I have rights” beside Nolan’s face, above a message about New York’s human rights law.

Nolan says Getty never requested proof that she executed a written model release, “or any type of release,” to the photographer of the picture, nonparty Jena Cumbo.

And even if had requested such proof, Getty had an independent duty to seek her consent, which it did not do, according to the complaint.

A Getty spokeswoman declined to comment Thursday. The New York State Division of Human Rights – which is not a party to the lawsuit – did not immediately respond to a request for comment.

Nolan says she only learned about the image through a public message posted on her Facebook page.

When she saw it, she became “instantly upset and apprehensive that her relatives, potential romantic partners, clients as well as bosses and supervisors might have seen the advertisement,” the lawsuit states.

“Feeling humiliated and embarrassed, plaintiff was 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, in a newspaper often used by her own clients for advertising and that is distributed to tens of thousands of New Yorkers every day,” according to the complaint.

Compounding the “disturbance of her peace of mind and injury to her personal feelings,” Nolan said her pilates instructor even admitted to seeing the ad.

Nolan’s attorney, Erin Lloyd, clarified in an interview that her client is HIV negative, but that the heart of the matter is that Getty did not have permission to use the image.

“Unlike a claim for defamation, for example, where an essential element is that the implication is untrue, the lack (or lack thereof) of the implication associated with the advertisement is not an element in this lawsuit against Getty,” Lloyd said in an email (emphasis in original). “The issue is really whether Getty Images had authority to sell Ms. Nolan’s image to all – regardless of how it was ultimately used.”

The lawyer added that, “even if she was HIV positive, without Ms. Nolan’s permission to sell her photograph – and specifically her written permission – Getty is liable for violating Ms. Nolan’s basic rights to privacy under New York Law.”

Nolan seeks at least $450,000 in compensatory and punitive damages for alleged use of her image without permission.

from – A Brooklyn woman is positively furious that a photo of her was used in a newspaper advertisement portraying her as being infected with HIV.

Avril Nolan, 25, a Greenpoint resident who does not have HIV, alleged through her lawyer Wednesday that Getty Images, a photo agency, sold a photograph of her to the New York State Division of Human Rights without her approval.

The state agency then took out an ad in the April 3 edition of amNew York that featured the photo of Nolan standing in front of a graffiti-covered storefront, along with the messages: “I am positive (+)” and “I have rights.”

Nolan, who is originally from Ireland and works in public relations, charges that the ad forced her to have awkward conversations with her employer, friends and “potential romantic partners,” according to her suit against Getty, filed in Manhattan Supreme Court. It seeks $450,000 in damages. “She was mortified,” said Nolan’s lawyer, Erin Lloyd. “It has caused a lot of anxiety.”

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.


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