The New York State Division of Human Rights used a licensed photo of Avril Nolan in an ad about HIV. Now it’s dealing with a judgment for defamation. What went wrong? It all started when Avril posed for a photo that was going to be used for an article about New Yorkers who are interested in music. Imagine her surprise when the New York State Division of Human Rights (“NYSDHR”) used her photo with the caption “I Am Positive (+), I have Rights,” implying that she was HIV positive. Avril is not HIV positive. She sued NYSDHR for defamation. NYSDHR argued that it licensed the photo from Getty Images so it shouldn’t be liable for defamation. Avril won against the NYSDHR. Avril also sued Getty Images for violating her right of publicity. Getty Images argued that the photo was used in violation of the license so it wasn’t liable to Avril. Getty settled with Avril after its motion to dismiss was denied.
WHY YOU SHOULD KNOW THIS. Photos, footage or images can greatly enhance a business’ public presence. Licensing the images from stock agencies like Getty Images, Corbis or Flickr can protect a business from claims of infringement. NYSDHR tried to get it right by licensing Avril’s photo. NYSDHR went wrong when it lulled itself into a false sense of security by: (1) not reading the use limitations in the license; and (2) failing to consider whether Avril would be damaged by making it appear that she was HIV positive when, in fact, she wasn’t (which is surprising for a Human Rights agency). BTW, you can find a picture of the offending ad in news reports about the lawsuits. It didn’t seem right to use the image for this post. So I didn’t.