Vampire Weekend Sued Because Photographer Might Have Falsified Model Release

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

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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Comments on “Vampire Weekend Sued Because Photographer Might Have Falsified Model Release”

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43 Comments
jakerome (profile) says:

Re: 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.

wallow-T says:

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.

another mike (profile) says:

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.

average_joe says:

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.

drkkgt says:

Re: 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”

Mark (profile) says:

Re: 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.

average_joe says:

Re: 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.

average_joe says:

Re: Re: Re:2 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).

Anonymous Coward says:

Re: 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.

NullOp says:

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.

foobar (profile) says:

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.

PaulT (profile) says:

Re: 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.

Deirdre says:

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

aikiwolfie (profile) says:

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.

Michael (profile) says:

Re: 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.

Rosedale (profile) says:

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.

Patrik says:

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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