Vampire Weekend Photo Lawsuit

sNarah

So, here is an interesting one. Vampire Weekend (the band ) used this picture for their latest album "Contra".

Basicly, they used this picture of said model on the basis of a model release form the photographer had. Which is normal. Then, she claimed her signature was forged and therefore the band had no right to use the image, resulting in a 2 million dollar lawsuit.

She claims the band should have checked the validity of the signature :eek:.

Any thought, comments?



From the guardian

Million-dollar smile ... Kirsten Kennis on the cover for Vampire Weekend's Contra To fans who bought Contra, Vampire Weekend's second album, she was simply a pretty face in a preppy white polo shirt. To the band, the picture of a blonde model represented something "infinitely fascinating", though her identity remained largely unknown. But this week, the woman whose picture adorns the album cover has reportedly launched a lawsuit against the band for using her image without permission.
According to website TMZ, Kirsten Kennis is seeking $2m for use of the image, taken by photographer Tod Brody in 1983, which she claims was used by the band without her consent. The former model says she had no idea her image was being used on the cover of Contra, and claims a release form containing her signature was forged.
Kennis's image was used in a viral teaser campaign prior to the release of Contra in January 2010. Asked about the image earlier this year, the band's singer Ezra Koenig told MTV: "We know where the image came from, but we're not being very specific about her. We don't know her or anything."
"The picture is from 1983, but the last album cover was from 2006, and they kind of look like they both inhabit the same world," explained Koenig. "When we saw this image, we just found it very striking. And part of it is the look on her face. It's not about the color of her hair, or the fact that she's wearing a polo shirt."
Contra went to No 1 in five countries, including the UK, following its release earlier this year.
Vampire Weekend have not offered a formal response to the lawsuit. A spokesman for the band could not be reached.

Nforce

The issue is between her and the photographer, I'd have thought,especially if the 'tog has in fact forged her signature. The band should not be held accountable.

AnCatDubh

Yes, she has unresolved 'issues' with the photographer who now has a battle on their hands. With both claiming polar opposites, I guess someone is not telling the truth so how to resolve? Handwriting expert, polygraph, (big stick until someone submits :eek:) perhaps.

If the photographer is at fault then he/she is a very stupid individual to think that it wouldn't surface at some stage.

Similarly, if the model isn't exactly telling the truth, then she is a very stupid individual, to think that it will stick.

The extension of liability to the licencee of the image, i.e. the band, is a big jump to make - although it wouldn't be unusual for a court to find against deeper pockets.

If it were the case that the band is judged to have liability, then surely everyone who buys so much as a 10c stock image off the internet, needs to contact the individuals in the image rather than the agency or photographer to ascertain that the image has been released, in which case it just wouldn't happen.

So in short, imho, the band shouldn't be in front of the firing squad - the photographer and the model deserve to have a ding-dong over it to resolve the polar opposite positions.

So the question for me which arises is as an ethically and morally responsible photographer, whether you [should] need for the signiture of a model on a release to be witnessed by a third party or is it acceptable to take subsequent measures (handwriting expert) to resolve any such difficulty or question that potentially would arise.

mehfesto

It's weird, I remember reading an interview in either Q or in the NME where the band said hey spoke to her about using the image and how thy were really chuffed she agreed to it. And went onto say how she was looking great still, etc., etc.

Dunno why's she's suing them. For that much either - they're hardly rolling in it!

Regardless, it's a great album cover.

TinyExplosions

A fairly standard clause in contracts:

Indemnification: Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of any Images or arising out of use of or relating to any materials furnished by Client. Unless delivered to Client by Photographer, no model or property release exists, and it is Client's responsibility to obtain the necessary permissions for usages that require any model or property releases not delivered by Photographer. It is Client's sole responsibility to determine whether any model or property releases delivered by Photographer are suitable for Client's purposes. Photographer's liability for all claims shall not exceed in any event the total amount paid under this invoice.

-basically, the photographer is indemnified, and it's the bands' responsibility to check releases and signatures.

quote taken from American Society of Media Photographers website here

Barname

No word on what Kennis does now or if she's still a model....

magicbastarder

TinyExplosions wrote: »

-basically, the photographer is indemnified, and it's the bands' responsibility to check releases and signatures.

i'm not sure that's quite so clear cut.

Unless delivered to Client by Photographer, no model or property release exists, and it is Client's responsibility to obtain the necessary permissions for usages that require any model or property releases not delivered by Photographer. It is Client's sole responsibility to determine whether any model or property releases delivered by Photographer are suitable for Client's purposes.

the first sentence basically says: if the photographer does not supply the model release, the client will have to pursue it.
the second sentence says that the client will be responsible if the image is used in a way which is not covered by the model release.

those clauses do not seem to cater for a situation where a photographer has supplied a false release form.

i suspect the above is only designed to cater for honest photographers who find themselves in a situation where a model takes offence at the use of an image he or she has signed a release form for, etc.
you cannot sign away fraud; a contract is not a contract if it is repugnant to the law.

IamBlip

magicbastarder wrote: »

those clauses do not seem to cater for a situation where a photographer has supplied a false release form.

And if the tog did'nt even take the photo in the first place, plot thickens (but could still own the rights I spose)

http://www.brooklynvegan.com/archives/2010/07/who_is_ann_kirs.html)

After all this, I wonder what the album sounds like now.........suckers

TinyExplosions

magicbastarder wrote: »

i'm not sure that's quite so clear cut.

the first sentence basically says: if the photographer does not supply the model release, the client will have to pursue it.
the second sentence says that the client will be responsible if the image is used in a way which is not covered by the model release.

those clauses do not seem to cater for a situation where a photographer has supplied a false release form.

i suspect the above is only designed to cater for honest photographers who find themselves in a situation where a model takes offence at the use of an image he or she has signed a release form for, etc.
you cannot sign away fraud; a contract is not a contract if it is repugnant to the law.

This is true, though the line "It is Client's sole responsibility to determine whether any model or property releases delivered by Photographer are suitable for Client's purposes." is quite clear. This is all idle speculation of course as we don't know the contents of the contracts (if any), it was just to throw it out there.

magicbastarder

TinyExplosions wrote: »

This is true, though the line "It is Client's sole responsibility to determine whether any model or property releases delivered by Photographer are suitable for Client's purposes." is quite clear.

i would have read 'suitable' as 'the uses stipulated are consistent with the intended use', rather than an onus to verify the veracity of the signatures.

Zillah

It's pretty ridiculous holding the band responsible. In terms of sheer practicality it's unworkable.

sNarah

Thanks for all the thoughts. Copyright laws are hard enough to understand in the first place - let alone when one assumes the signed model release is valid! Like ancathdub says, how the hell should you check the validity of a signature!! Tbh, I really hope Vampire Weekend does not have to cough up the 2 million as imho I don't think they should be held liable in this case.

TinyExplosions

While I do think the if what's reported is true, and the photographer forged a signature on a model release that he should be liable to some extent, the band will also have to prove that they performed due dilligence when using the image, which could be quite hard -it wouldn't have taken much to get in touch with the model herself to check that it was ok, even out of courtesy -a sort of "hey, we're using you on our album cover, here's a couple of copies, hope you like it" or somesuch, in which case they'd have avoided themselves a potentially costly lawsuit.

I suspect what may happen is that the model sues the band, and then the band may be open to sue the photographer.

To put it another way, if you saw an image of yours being used in a magazine, would you send an invoice/threatening letter directly to the magazine, or to the photographer credited (if there was one). You go after the people who used the image first, not the original source (that may come after)

magicbastarder

TinyExplosions wrote: »

To put it another way, if you saw an image of yours being used in a magazine, would you send an invoice/threatening letter directly to the magazine, or to the photographer credited (if there was one).

i'd ring the photographer and ask them how the magazine got the image.