Vampire Weekend Sued Because Photographer Might Have Falsified Model Release

from the how-is-that-their-fault? dept

Fri, Jul 16th 2010 11:32am — Mike Masnick

Brendan was the first to alert us to the story of how the "girl" who is in the image used on the cover of the last Vampire Weekend album is now suing the band.

She claims the photographer who licensed the image to the band for $5,000 didn't take the photograph and forged a model release. If true, those are serious charges... but should be entirely focused on the photographer. She is suing the photographer, but also claims that the band is responsible for not checking into it, which seems pretty far fetched. Even more ridiculous? She claims that her image is one of the main reasons the album sold so well, so she wants $2 million. Does she really think that if the band had put a different image of a girl staring off into space on the cover, there would have been noticeably different sales?

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Filed Under: image, model release, photographer, vampire weekend

43 Comments

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Scote, 16 Jul 2010 @ 11:53am

Nospam@nospam.com
And next, Polo will sue the band, saying that the success of the album was based on he unlicensed inclusion of a logoed Polo brand golf shirt on the cover. They'll probably need 4 million...

:-p
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Jon Renaut (profile), 16 Jul 2010 @ 12:01pm

Re: Nospam@nospam.com
Clearly Polo will sue the model, as well, for wearing their shirt on a day when she might be photographed for an unauthorized album cover which might be reprinted on blogs like Techdirt. They'll get Google, too, for returning your comment on a search for "polo logo lawsuit".
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Kimberly, 16 Jul 2010 @ 12:02pm

Are you freakin' kidding me???
This woman is obviously out to make some quick cash. This is ridiculous!
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:Lobo Santo (profile), 16 Jul 2010 @ 12:03pm

Re: Nospam@nospam.com
I'm certain that's provably false. Likely the album would have sold far better had she not been wearing the Polo(r) shirt.

; P
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wallow-T, 16 Jul 2010 @ 12:06pm

IANAL, but ... this is where the concept of "indemnification" comes into play. In an appropriately cautious world, the contract between Vampire Weekend and the photographer specifies that the photographer will Indemnify Vampire Weekend against any IP claims which arise from the band relying on the photographer's release.

There was another case from the 1990s involving the band Tad and the album "8-Way Santa", where the band had found an old polaroid of a partially-nude man grabbing the breast of a woman. From what I can find on the web, the label immediately pulled the cover; I don't know if any case made it to trial.
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another mike (profile), 16 Jul 2010 @ 12:12pm

the band should have checked into it?!
The band did check into it. And everything checked out OK. The model release and license deal and everything were in order just like they always are. It's not the band's fault they can't spot a forgery.

This "photographer" has probably been doing the lying thief routine for a while. I wonder how many counts of fraud he might be looking at.
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Anonymous Coward, 16 Jul 2010 @ 12:21pm

Photographer is in trouble if that is true.

regarding the charges against the band... I wonder if she'll be able to duck fast enough when the judge's gavel flies from his hand toward her face!
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average_joe (profile), 16 Jul 2010 @ 12:24pm

I don't think it's at all weird that she's suing the photographer and the band. The photographer simply acts as the band's agent, and the band can be held responsible for their agent's actions. The agency relationship creates rights and liabilities. When the band authorized the photographer to act on their behalf, they accepted the rewards and the risks. This is nothing new. It seems clear to me that both the photographer and the band are potentially liable. In fact, this story would only be strange to me if she was suing only the photographer and not the band.
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NullOp, 16 Jul 2010 @ 12:40pm

WTF?
As soon as I'm done with this comment I'm suing the model, I'm also gonna sue the internet for allowing it to happen and Al Gore for inventing the internet! So there!

BTW, I wouldn't have paid $500 for her pic much less $5,000. Like most litigation these days, it's all about the money. It don't matter who is being sued for what...it's all about the money.
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Scote, 16 Jul 2010 @ 12:46pm

Not an agent
Nope, it doesn't seem like the photographer was the band's agent. The photo was taken in 83. The band didn't even form until 2006, so the photo wasn't taken for hire by the band. The band bought a photograph which the photographer provided a signed release form.
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drkkgt, 16 Jul 2010 @ 12:47pm

Re:
From the article:
Kirsten Kennis -- who claims she took the original photo way back in 1983

From Wikipedia:
Vampire Weekend is an American indie rock band from New York City, formed in 2006

They did not "authorize" the photographer to take the photo on their behalf because they didn't exist then. They paid a guy for something.

This is more like you go into a store and buy a nice picture for your wall and get sued cause you bought the picture from a guy who had no right to sell it. It's "buyer beware" not "buyer be-held liable for anything and everything that could have possibly come before or happened before the buyer bought the item or service"
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Mark, 16 Jul 2010 @ 12:51pm

Re:
When the band authorized the photographer to act on their behalf, they accepted the rewards and the risks.

IANAL, but it would seem to me that band, having hired the photographer with the expectation that he would produce for them original work, is not liable for the infringement.

Rather, the photographer did not stick to the agreement of producing an original work to which he had full rights. Unless the band was aware that the photographer did not have rights to the photograph, I don't see how they can be liable.

In fact, I think the band should sue the photographer.
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Peet McKimmie (profile), 16 Jul 2010 @ 12:57pm

Re: Nospam@nospam.com
"And next, Polo will sue the band"

Yes. Because the CD is circular. And it has a hole in the middle.
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NAMELESS ONE, 16 Jul 2010 @ 12:57pm

and this is why
you get your big breasted girl friend whose nothing more then a permanent tour groupie sex slave to get photoed , shes prolly too stoned and drunk to care
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Anonymous Coward, 16 Jul 2010 @ 1:05pm

There was an album cover?
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average_joe (profile), 16 Jul 2010 @ 1:06pm

Re: Re:
"Rather, the photographer did not stick to the agreement of producing an original work to which he had full rights. Unless the band was aware that the photographer did not have rights to the photograph, I don't see how they can be liable."

The band will be arguing just that, I'm sure.
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Scote, 16 Jul 2010 @ 1:23pm

AKA: You were wrong...
...but I suppose that is as close to admitting it as you will get.
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frankie, 16 Jul 2010 @ 1:23pm

I bought it because of the cover
Didn't you?
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Herb Turbo, 16 Jul 2010 @ 1:32pm

$2m?
Someone used a 27 year old photo of this woman and she wants $2m for what exactly?
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Anonymous Coward, 16 Jul 2010 @ 1:35pm

Re:
The problem with indemnification clauses is that they are only as good as the indemnitor. In other words, I can get an agreement that JoJo the Crackhead will indemnify me, but JoJo's got no money, so I'm SOL if I get sued.
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Anonymous Coward, 16 Jul 2010 @ 1:37pm

Re:
"The photographer simply acts as the band's agent, and the band can be held responsible for their agent's actions."

Except that this picture was taken in 1983, long before the photographer could have possibly acted as the agent of the nonexistent Vampire Weekend.
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jakerome (profile), 16 Jul 2010 @ 1:59pm

Re: Are you freakin' kidding me???
For better or worse, this is why many rely on stock agencies like Getty. If you buy misappropriated good, or license misappropriated content, you are on the hook for damages-- you either have the goods revoked or you pay the copyright owner. Now, $2 million is preposterous. But the lawsuit is properly targeted at the band, and it remains the band's responsibility to then recover damages from the photographer. Throwing $10,000 at the photographer/model probably makes the problem go away.
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kryptonianjorel (profile), 16 Jul 2010 @ 2:12pm

Re: Re: Are you freakin' kidding me???
Uh, false? Is the band all-knowing or something? They have no way to know if the photo is fake if they're told the photo was legit.
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JEDIDIAH, 16 Jul 2010 @ 2:15pm

Pictures of Girls. Meh.
They should have just sprayed some water on a trashbag and traced the album name on it... '-)
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Anonymous Coward, 16 Jul 2010 @ 2:25pm

Re: Re: Nospam@nospam.com
So, then the band could counter-sue polo for actually HURTING the sales the album could have reached, if it weren't for her wearing that shirt, or any shirt?
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Anonymous Coward, 16 Jul 2010 @ 3:12pm

If she is found to be lying the lawyer who is representing her should be punished accordingly.

If people will punish everybody involved lawyers should check their clients also.
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Anonymous Coward, 16 Jul 2010 @ 3:31pm

Re: Re: Re: Are you freakin' kidding me???
While I'm sympathetic to the band, I'm not sure if "we thought we had a license/release but didn't" is a valid defense.
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Anonymous Coward, 16 Jul 2010 @ 3:33pm

Uh, because lawyers all have ESP?
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average_joe (profile), 16 Jul 2010 @ 4:13pm

Re: AKA: You were wrong...
I don't know enough of the facts to say anything with certainty. I suspect there are arguments for saying the photographer was the band's agent (presumably what the model is saying) and there are arguments that the photographer wasn't (presumably what the band will say).
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average_joe (profile), 16 Jul 2010 @ 4:15pm

Re: Re:
The dates are not problematic. If the photographer was acting as the band's agent, then the band can be liable. The fact that the picture was taken before the band was formed does not mean the photographer was per se not an agent when he misappropriated the picture.
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Anonymous Coward, 16 Jul 2010 @ 6:08pm

Re: Re: Re:
What "misappropriation" are you talking about? Sending a file? The photographer/agency theory here is awfully strained.

If anything, the printers/advertisers/etc. were acting as the band's agents when printing up the CD covers, posters, etc.

There's really no need to involve the photographer's alleged acts for a right of publicity claim.
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Anonymous Coward, 16 Jul 2010 @ 8:05pm

Everyone who bought the album is liable.

SUE THE PLANET!
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foobar, 17 Jul 2010 @ 2:58pm

The photo has already been used, so the band/photographer is in a bad negotiating position to buy it now, and the girl has a reasonable claim to proceeds from the album.

If we make the girl sue the photographer, he bankruptcies out and she sees nothing. This sets the precedent that you need only set up a dummy corporation to hold any infringement liability. If anyone sues, you let it fall on it's sword and get away with it.

I don't think it's unreasonable to say that if you use someone else's stuff to make money, they should get a cut. Though I guess that's a foreign concept to record labels.
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Deirdre, 18 Jul 2010 @ 7:22am

The model is saying that she does not know how the photograph got in the hands of the photographer who sold it. It may have been a Polaroid picture taken by her mother who either gave or sold the actual photograph to someone else. The photographer who sold the photograph to the band, Todd Brody, says he took it in 1983. A lot will turn on the signature on the model's release.

There was a recent case in New York where a person sat for photographs for personal publicity use. Later she learned that one of the photographs had appeared on a book cover. She brought suit in New York under a state statute and was granted a permanent injunction against the publisher of the book. The tip offered with this was that there was a need for the publisher to do due diligence to make sure the rights were clear. The full decision with some discussion is posted at http://tushnet.blogspot.com/2010/05/book-cover-not-artwork-subject-to-right.html
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aikiwolfie, 18 Jul 2010 @ 10:41am

It seems a bit ridiculous this band has been caught out like this. Their publishers should have checked everything was on the level.

The fact remain however that the band used a photo they apparently didn't have have the rights to. That being the case, the band are liable to be sued. $2 million isn't that big a deal in todays money for a successful band. They should pay up and reissue the album with new artwork they do have the rights to.
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PaulT (profile), 19 Jul 2010 @ 12:06am

Re: Re: Re:
Did you pull a muscle with all the contortions you're doing there instead of just admitting you were wrong?
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PaulT (profile), 19 Jul 2010 @ 12:25am

Re:
"If we make the girl sue the photographer, he bankruptcies out and she sees nothing."

So what? Unless it can be proven that the band and/or their management knew that the photographer was lying (and even that needs to be proven first), they are as much victims of fraud as she was. That's why you should sue the people who actually committed the fraud, not everybody along the line who may or may not have benefited.

"I don't think it's unreasonable to say that if you use someone else's stuff to make money, they should get a cut."

I agree, to a point. In this case, the band were probably under the impression that the $5,000 paid for the image *was* the cut. I'm not sure why they should be sued for more just because the album sold well and they were defrauded. To be sure, it sucks if this is all true but the band have done nothing wrong.
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Mad Panda (profile), 19 Jul 2010 @ 1:37am

Lol lawsuits have gotten a bit out of control
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Michael, 19 Jul 2010 @ 5:14am

Re:
The amount of money and the defendant's ability to pay it are totally irrelevant to the application of liability.

The band should not have to pay a dollar for this. They just happen to be the deepest pocket she could find.

Take this example: You run a landscaping business. You bought a lawn mower and that lawn mower used a patented electric starter. After you bought it and used it for two seasons, you find out that the mower manufacturer did not properly license the starter technology.

Should you have to pay 50% of your earnings to the company that patented the starter technology? Of course not. How would it be your fault in any way? Should you have a lawyer look at the technology in everything you purchased to make sure it was all licensed correctly?

There should be heavy penalties for bringing lawsuits with inappropriate applications of liability. The band should not even have to pay legal fees to defend this.
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Rosedale (profile), 19 Jul 2010 @ 9:47am

Yea whatever
I think it is so funny. I heard this on the radio the other day and my wife looked at me and said, "Why does she think she deserves 2 mil?" And I said, "Because obviously people bought and downloaded that album solely because of the front cover, and without that front cover they wouldn't have sold any of their music, because people only by music because of the album cover." She laughed, but you know that is exactly what this woman is thinking and exactly what she'll try to say. Funny thing was my wife didn't even remember the cover..."We always listen to it on iTunes, I'm not looking at the cover." When I showed her the cover she did recognize it, but she certainly didn't like the music or buy the album because of it.

That got me thinking about the current culture. My music was purchase legit and the cover in the download world means less and less. I appreciate a good album cover, I thought this one was really good, but I purchase the music and download it. Back when you bought a physical CD I think it mattered a bit more, but now...I don't think it matters much at all. 2 Mil way to much.

So we shall see. I don't think it will get very far.
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Almost Anonymous (profile), 19 Jul 2010 @ 11:48am

Re: Re: Re: Nospam@nospam.com
Good point. I'm fairly certain the album would have sold better if she had been shirt-less.
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Almost Anonymous (profile), 19 Jul 2010 @ 11:54am

Re: $2m?
Don't you know how much interest she could have made if the non-existent band had paid her 27 years ago???

Answer: 2 million dollars!

Also, I would like to personally thank her for proving that you don't have to be male to be a tool.
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Patrik, 20 Jul 2010 @ 3:11pm

I don't know that this justifies her lawsuit against the band, but I will point out that her image was used EXCESSIVELY in promotion of that album. It was plastered all over sites like Stereogum and Pitchfork. It was probably used in some real world marketing campaigns as well. A large percentage of the press that I saw leading up to the album's release mentioned that pic, often disparagingly. It doesn't surprise me that she would target the band, since the image was a HUGE part of their advertising campaign. (I wouldn't be surprised if the image was mentioned in the press release for the album, since it's brought up so often in the press. Usually that means that the publicist pushed the image in the release)

I don't know that she has any legal grounds, but I can understand that she might be upset. It's her likeness and it was used without her permission. She's not famous, she never relinquished her public image the way that it could be argued that someone like Madonna has. And besides, maybe it's personal: maybe she thinks Vampire Weekend sucks; a lot of other people do, too.
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