The $28million damages asked for in this case might be something to haggle about but frankly speaking it is reasonable, given we are dealing with large retailers and an almost global circulation of the products in question.
Nevertheless, beyond the damages, I definitely agree with the route the parents have taken in suing both the photographer and retailers, on behalf of their teenage model daughter in this case. Here are the facts as summarized by me but you also get to read the actual complaint and what THR, ESq. also has to say.
1. Photographer Jason Lee Parry thinks model is hot. He wants to shoot model.
2. Model agrees to the shoot. She is 15years old
3. Jason Lee Parry is not new to the fashion industry. He is clearly talented and has been shooting models for aeons. He understands and knows sex sells. He shoots provocative sex shots of model.
NOTE: As you will see, her styling and pose, while troubling given her age, is my least concern in the analysis below. But I do have an issue with Jason Lee Parry’s point expressed with TV media that “she posed herself?” Are you kidding me? What utter rubbish. That statement makes no sense. Of course models pose “themselves” but under the direction and vision of the ultimate story a photographer is trying to tell, especially in an editorial shoot. Let’s call a spade a spade and get to the heart of the matter, shall we?
3. Moving right along, Jason Lee Parry according to the complaint, and highly significant, did not obtain a model release. In fact, the teen model’s agency, Ford Models (at the time), objected to the use of the photos and Lee Parry allegedly agreed to the non-use.
4. The complaint further alleges that Jason Lee Parry, without consent, sold the image(s) to Urban Outfitters, among others. Urban Outfitters placed these images on their merchandize including men shirts, pictured in this article.
5. Urban Outfitters, is yet to respond to the complaint through what we call “an Answer” in the legal world, which I have covered before. But, it would be interesting to see what Jason Lee Parry signed with Urban Outfitters.
Legal theories to note and understand from all three sides/parties
The key word, RELEASE! Say it with me people, “RELEASE.”
1. Model– If you are the model who does a shoot with a photographer, if you sign a model release, make sure you understand what you sign. As a model you want to limit the scope of what a photographer can do with your image. In California, California’s Right of Publicity Law is clear that consent is needed if your image, name, and/or likeness is used for commercial purposes. If you are underage, you need mommy and daddy’s approval. When you become an adult, you can do whatever you like. There is no ifs, buts and “ands” in the negotiation. It is just that simple.
2. Photographer: Two rights come into play when you shoot a model. 1) Copyright law – this means you own the image you shot; and 2) right of publicity – this means the model owns this right and while you can shoot him/her, you need his/her permission to make money off your images. To do so, you need a model release.
This lawsuit is filed in New York which is one of the biggest fashion capitals in the world. Indeed, New York Fashion Week is right around the corner and it is very hard, especially when you are in a cosmopolitan city like New York, to argue with a straight face that you did not know you needed a model release for this kind of commercial use. This is standard industry practice.It is probably why the parents are asking for punitive (to punish) damages, as they should, from Jason Lee Parry and other defendants.
Again, photographers, if you shoot a model, you must get a release whether through model or model’s parents, if an underage model. Also, make sure your release covers the varied scope of how you will use the image(s). To sell an unauthorized image of a model without compensation is far from cool, it will get you sued. Also, if you will sell an image of a model, make sure she wants to and has consented in her release to be presented in the manner you seek to present her to the world.
The key thing for me which is why I said I support the route the parents have taken is that Jason Lee Parry allegedly did not get a release. For an experienced NY top-notch Photographer who already knew there were objections to use of the teen model’s images shot, that is simply not acceptable.
Obviously there are two sides to a story so as the litigation continues we should see if indeed he actually obtained a release/consent.
Urban Outfitters-The Retailers: If you are Urban Outfitters, clearly you are entering some sort of a licensing deal with a photographer like Jason Lee Parry. As Urban Outfitters, you want to make sure that there is a clause in that agreement that clearly state the photographer warrants that there are no violations of copyright and right of publicity laws, among other applicable laws. You also want to include an indemnification clause. The “indemnification” clause essentially says if Urban Outfitter gets sued and it is as a result of the photographer dropping the ball, the photographer agrees that Urban Outfitters is not liable for Photographer’s wrongdoing. This means that even if Urban Outfitters can’t get out of the lawsuit, loses or settle, it can turn around and ask photographer to reimburse it for costs incurred to defend itself.
Sheesh! So much fashion law drama this week. Can’t we all just fashionably get along?!
READ THE COMPLAINT
READ THR., ESQ’s report.
Fashionentlaw™ is the brainchild of Uduak Oduok (Ms. Uduak), an ex-fashion model and industry veteran turned Fashion and Entertainment lawyer. The law blog discusses hot topics in pop culture arising primarily out of the fashion industry.
As a legal practitioner, Ms. Uduak has over two decades of experience counseling individuals and businesses within and outside the creative community. She has counseled designers, apparel manufacturers, models, photographers, retailers, graphic designers, musicians, public relations specialists, and athletes, among others, on diverse legal issues including business formation, licensing, trademark and copyright matters, contracts, intellectual property and contract disputes. She is also an Adjunct Professor.
To arrange a consultation to discuss your case, contact her today at 916-361-6506 or email (firstname.lastname@example.org).