This was first published in the Beverly Hills Bar Association's Global Fashion Lawyer.
Appearance is arguably the most important aspect of modeling. Whether a model is practicing poses in the mirror, or sitting in the makeup chair and being prepped for a photoshoot, the essence of a model's job is to be a canvas, painted and altered to fit the role of the job she books. Even if a model is not altering her appearance for herself, but at the direction of the project's creative director, presumably the model signed up for the specific gig at her own volition.
But what happens when models are not portrayed as they intended?
Models are no strangers to having their images featured all over magazines and billboards. However, the topic of models' images being used without their consent is becoming an area of increasing concern. For instance, supermodel and actress Emily Ratajkowski recently penned an essay, cleverly titled "Buying Myself Back", describing the battles she faced in the early days of her career regarding the use and ownership of a series of nude photographs in which she posed. Published by New York Media's "The Cut" in September 2020, in the midst of a new era of fashion where the industry is finally beginning to alter the way it values models, this piece captured the attention of many, both inside the industry and beyond.
The issues of models not consenting to the specific way their image is used is becoming increasingly common. It should come as no shock that social media has exacerbated these concerns because it has made it so easy for everyone to disseminate photos.
Consent and power are two overlapping concepts inherent to a model's everyday work. Whether a cover girl or an anonymous runway mannequin, a model's job requires trading in uninhibited self-expression for the demands of creative directors, camera crews, and contracts she may not be privy to or have the background to understand. These are the reasons the work of models gives rise to false light claims so frequently.
"False light" is a cause of action that relates to someone being presented in a misleading nature.
The elements that make up a false light claim differ on a jurisdictional basis. However, on its most basic level, a model who wishes to bring a claim for false light must show 1) that information was published about her, 2) the information portrays her in a false or misleading light, 3) the information is highly offensive or embarrassing to a "reasonable" person, and 4) the person who published the information did so with reckless disregard as to the offensiveness of the information.1
If Ratajkowski were to bring a false light claim against Jonathan Leder, the photographer who allegedly published without permission a book of erotic photos he shot of Ratajkowski, the element most likely in dispute between the parties would be whether the photos portray her in a misleading light taking into consideration her portfolio to date as a model.
When the topic of false light arises, it is not uncommon to also hear about defamation, which also relates to someone's reputation being harmed. While the two causes of action may arise from similar circumstances, false light and defamation are distinctly separate claims.
If a model were to bring a defamation claim, she would be required to demonstrate 1) a person made a statement about her to a third party, 2) the statement caused damage or harm to her reputation, 3) the statement was false, and 4) as a public figure, this statement was made against her intentionally or with reckless disregard of her rights.2
When a model signs a release for a modeling job, it is paramount that language used in the release does not permit use of the model's photographs that extends beyond what the model intends. For what purpose(s) will the model's photos be used for? Are the purposes specifically outlined? Where will the photos be distributed? Who is permitted to distribute the photos? For how many years may the photos be used? While models likely prefer the release to be narrow, rather than a wide and unrestricted use of the model's photos, the company hiring the model and paying for the photos needs to ensure that the release captures their intended use of the photos.
A recent case was brought in 2015 by a group of models, including Carmen Electra, against certain strip clubs alleged that the strip clubs ("Clubs") between 2013 and 2015 used the models' "[i]mages for commercial purposes in order to promote their Clubs by and through various marketing and promotional mediums," including the Clubs' website and social media accounts, "without the prior consent" of any of the models. The complaint in the case alleged claims under New York Civil Rights Law Sections 50 and 51, the Lanham Act, 15 U.S.C. § 1125(a), New York General Business Law Section 349, and New York libel law. The lawsuit alleges that Carmen Electra and the other models as never having worked at, hired to endorse, or received money from, the strip clubs. One of the claims brought was a libel claim based upon the allegation that the advertisements were false defamatory statements because the "most obvious interpretation" was that the models would be stripping at the Clubs.3 In January 2019, United States District Judge Naomi R. Buchwald in considering a motion for summary judgment ruled that only Ms. Electra had a strong trademark and barred the Clubs from using her images for advertisements. The other models failed to demonstrate a similar level of recognition and signed releases of their rights to the photos with photographers which defeated their claims. The libel claim was dismissed because it was a reasonable interpretation that the use of the models' images was reasonably susceptible of multiple meanings, some which were not defamatory, and the models failed to adduce clear and convincing proof of actual malice because the mere failure to investigate, while relevant, is not sufficient to show actual malice. On appeal, the Second Circuit vacated the decision with regard to New York Civil Rights Law Sections 50 and 51 with regard to plaintiffs Lee, Mayes, Koren, Shake, Hinton and Golden and affirmed the lower court decision regarding the Lanham Act, New York General Business Law Section 349 and New York libel law. The Court noted that the terms of the alleged releases "present disputed questions" and that "while the releases could provide a defense in an action against the releasees or those who could assert lawful use by reason of assignment of license, appellees concede that they had no legal rights to the images." As this case demonstrates, there is a misconception in the modeling industry that "no press is bad press". Especially with the rise of "public figures" on social media, many people believe a model's job is to garner the attention of as many consumers as possible to promote the brands with whom they contract. What is less frequently discussed is that modeling is a profession that requires balancing self-promotion with the expectations of brands and careful management of the intended usages. With more content being produced comes even more responsibility for models today to avoid the risk of being presented in a misleading nature.
*Eric Abramian is a creative entrepreneur with a background in marketing and luxury brand management. He earned his J.D. from Loyola Law School.
Footnotes
1 "Defamation vs. False Light: What Is the Difference?" FindLaw, 2018, pp. 1-4, www.findlaw.com/injury/torts-and-personal-injuries/defamation-vs-false-light-what-is-the-difference-.html.
2 Id.
3 Electra v. 59 Murray Enters., 987 F.3d 233 (2d Cir. 2021); Toth v. 59 Murray Enterprises, Inc., No. 15 CIV. 8028 (NRB), 2019 WL 95564 (S.D.N.Y. Jan. 3, 2019), aff'd in part, vacated in part, remanded sub nom. Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021).
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