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Brooklyn woman at center of HIV photo allowed to continue suit

March 26, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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A Brooklyn woman who discovered a public service announcement ambiguously identifying her as HIV positive may proceed in her civil rights lawsuit against the licensing photo agency.

Avirl Nolan, 25, took photos for an acquaintance’s editorial photo shoot on street fashion a few years ago. The photographer, Jena Cumbo, entered into a license with Getty Images for the rights to the images within her portfolio, including Nolan’s photograph. In need of photographs for an ad campaign, the New York State Division of Human Rights (DHR) signed a deal with Getty for the right to use images in its archive. The photo chosen was Nolan’s.

The quarter page full color advertisement appeared in the free daily newspaper, AM New York and showed Nolan with the words ”I AM POSITIVE (+)”and “I HAVE RIGHTS” next to her face.  Below Nolan’s image were the words: “PEOPLE WHO ARE HIV POSITIVE ARE PROTECTED BY THE NEW YORK STATE HUMAN RIGHTS LAW. DO YOU KNOW YOUR RIGHTS?”

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In New York, there is no general right to privacy. In other words, one can use the name, image, and likeness of another without their permission so long as the use is for a non-commercial purpose. Further, in accordance with New York’s civil rights law, when images are used in a commercial manner, a license must be obtained from the subject of the photograph granting permission for use of their image.

Getty filed a motion to dismiss Nolan’s case, claiming that it is in the business of displaying and licensing photographs and that Getty itself did not use the image in and advertising or trade context. Getty argued, in essence, that as a mere licensing agent, it is not subject to New York’s civil rights statute.

Manhattan Supreme Court Justice Anil C. Singh disagreed with Getty’s reading of New York’s law. Contrary to Getty’s argument, Singh noted in his written opinion, Nolan has a claim, especially as “the use of [Nolan]’s likeness created a false impression about [her].”   

The case against Getty is not open and shut, however.  Singh suggested that the level of Getty’s responsibility towards Nolan must be determined at trial. Getty’s liability “all must await further development of the facts, either by way of summary judgment or trial,” Singh wrote.

“My client is mortified,” Nolan’s attorney Erin Lloyd told the Brooklyn Daily Eagle. “She works in public relations and it has been a very difficult experience for her trying to figure out who has seen the advertisement. Her clients read the paper. Her supervisors read the paper,” noted Lloyd.


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