African-American Model Claims Right of Publicity Violation and Race Discrimination when She is Replaced by White Model
African-American model Amanda Ermon has sued several real estate firms for using photographs of her that were sold to them by a photographer without her permission. The photographer allegedly had taken the pictures with her permission, but only had authorization to display the photographs in his studio. Ermon allegedly retained the copyright to the photographs. When Ermon complained of the use to the real estate companies and sought payment for the use of her image, the defendants removed her image and allegedly replaced it with an image of a “white female.” Ermon’s complaint brings a number of claims including ones for copyright infringement, right of publicity (under Illinois’s Right of Publicity Act), and a false endorsement claim under the Lanham Act. Interestingly, she makes a 42 U.S.C. § 1982 claim that she was discriminated against on the basis of race because her image was replaced with that of a white woman. She claims that she therefore received “disparate treatment . . .on the basis of race” and was deprived property as a result. She also claims that she suffered “a loss of dignity, humiliation and embarrassment” from the discriminatory treatment.
It’s hard to understand here whether her primary concern is that her image was used without consent – and payment !– or that she was replaced by a white model. Although discovery may prove otherwise, it seems from the complaint that the defendants likely thought they had permission to use Ms. Ermon’s image – based on their payment to the photographer – and when they discovered this was not the case they replaced her image with whatever was handy – here a model of a different ethnicity. The real culprit here appears to be the photographer who may have violated his agreement with Ms. Ermon.
The case is a good reminder to confirm that rights of publicity have been waived or assigned even when one lawfully purchases a photograph that one wants to use in advertising or otherwise. Here it appears that the defendants may not have had rights to display Ms. Ermon’s image either under copyright or right of publicity laws, but instances have arisen in which the copyrighted photograph or film is lawfully used, but the publicity rights have not been separately cleared. Although in such instances the rights of publicity should usually be preempted, courts have not reliably and uniformly done so making it prudent (even if not required) to clear those rights as well. This is especially true here in the Seventh Circuit which decided Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005). In Toney, the court of appeals held that the claim under Illinois' right of publicity statute was not preempted by copyright law because the authorization period for the use of the model's photograph had expired. This case may also fit in with the long tradition of using lawsuits to generate publicity to further one’s career and the thus-far-unconvincing race discrimination charge may be part and parcel of that effort.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.