Tennis Pro Loses Publicity Claims Against Photographer
Questions often arise as to the validity and extent of protection offered a photographer who obtains a model release as part of an assignment. A recent New York Federal Court had the opportunity to
&nbThe case was brought by Anastasia Myskina, a Russian citizen who won the 2004 French Open Tennis Championship, against photographer Mark Seliger, his studio, and Conde Nast Publications, Inc.
&nbIn July 2002, a Conde Nast editor contacted Myskina's agent to inquire whether she would be interested in being photographed in the nude by Seliger for the cover and interior of GQ's 2002 "Sports" issue profiling female tennis players. She expressed interest and her agent instructed his twenty-three year old administrative assistant to set up the appointment and go to the shoot with her.
&nbOn July 16, 2002 Myskina arrived at the photo shoot with the assistant and her coach. There was some confusion as to what was to occur. Myskina testified that she was unaware before the shoot that the cover photo would depict her as "Lady Godiva"- lying nude on a horse. In any case, she expressed concern about being photographed in the nude. She stated that according to her agent, she was to wear nude-colored clothes and have long hair taped on "appropriate" places.
&nbBefore shooting began, the agent’s assistant was given a Conde Nast standard model release form for Myskina, to sign which she did. The release provided her consent to the use of her name and pictures taken of her on that date by Conde Nast and others it may authorize, for editorial purposes.
&nbConde Nast eventually published her profile and a "Lady Godiva" photo on the cover and inside two-page spread. She was not paid in connection with these publications.
&nbThe master agreement between Seliger and Conde Nast provided that Seliger was authorized to exploit all photographs taken on assignment after an exclusive period, for "editorial syndication.” In addition, he could authorize publication "for any commercial, merchandising or advertising purpose" only with Conde Nast's express written consent. After the embargo period, Seliger gave images from the shoot to his editorial stock photo agency. The stock agency licensed five of the images to the Russian magazine Medved for use in connection with an article entitled Nastya Myskina: The Champion's Private Life. The photos used included frontal nudity and two versions of the Lady Godiva photographs. The article included text from an interview Myskina gave to Medved.
&nbMyskina sued, alleging violations of the NY Civil Rights Act and breach of contract.
&nbThe Court found, allegations of fraud, duress or some other wrongdoing, Myskina claimed misunderstanding of the terms of the release, did not excuse her from being bound by it since she signed it. The legal principal cited is that, a party to a written contract is bound by the terms whether or not the party reads it, absent a valid excuse for failing to read it. Ignorance through negligence or inexcusable trustfulness will not release a party from contracted obligations. Nor will, held the Court, illiteracy in the English language automatically excuse someone from compliance with the terms. The Court then discussed when parole evidence (oral testimony) can be used to expand upon or contradict a written release, in connection with Myskina's claim of an oral agreement to limit the use of the photos.
&nbIn sum, the Court ruled that where there is binding written agreement, parole evidence is not admissible to contradict a term of the writing. Since Myskina's claim of an oral understanding contradicted the plain language of the release (by limiting its effectiveness), it could not be considered.
&nbThe Court then concluded that the use of the photos in the Medved article was newsworthy, in the public interest, and therefore editorial in nature. As a result, such use neither violated Myskina's publicity rights under New York law, nor violated the terms of the release (the contract).
&nbI have consistently advocated that photographers create a paper trail to ensure that there is appropriate protection against potential claims. This case is the perfect example of how clear and explicit releases and contracts help defeat significant litigation in its early stages.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
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