Model Strikes Back After Appearing in HIV Ad

MANHATTAN (CN) - Getty let an advertisement about HIV awareness plaster the words "I am positive (+)" beside an unsuspecting model's face, she claims in court.

Brooklyn-based Avril Nolan sued Getty on Wednesday over the full color, quarter-page ad that the New York State Division of Human Rights ran on Page 10 of the April 3, 2013, edition of the free daily newspaper AM NY.

The ad allegedly has the words "I am positive (+)" and "I have rights" beside Nolan's face, above a message about New York's human rights law.

Nolan says Getty never requested proof that she executed a written model release, "or any type of release," to the photographer of the picture, nonparty Jena Cumbo.

And even if had requested such proof, Getty had an independent duty to seek her consent, which it did not do, according to the complaint.

A Getty spokeswoman declined to comment Thursday. The New York State Division of Human Rights - which is not a party to the lawsuit - did not immediately respond to a request for comment.

Nolan says she only learned about the image through a public message posted on her Facebook page.

When she saw it, she became "instantly upset and apprehensive that her relatives, potential romantic partners, clients as well as bosses and supervisors might have seen the advertisement," the lawsuit states.

"Feeling humiliated and embarrassed, plaintiff was forced to confess to her bosses that her image had been used in an advertisement for HIV services, implying that she was infected with HIV, in a newspaper often used by her own clients for advertising and that is distributed to tens of thousands of New Yorkers every day," according to the complaint.

Compounding the "disturbance of her peace of mind and injury to her personal feelings," Nolan said her pilates instructor even admitted to seeing the ad.

Nolan's attorney, Erin Lloyd, clarified in an interview that her client is HIV negative, but that the heart of the matter is that Getty did not have permission to use the image.

"Unlike a claim for defamation, for example, where an essential element is that the implication is untrue, the truth (or lack thereof) of the implication associated with the advertisement is not an element in this lawsuit against Getty," Lloyd said in an email (emphasis in original). "The issue is really whether Getty Images had authority to sell Ms. Nolan's image to all - regardless of how it was ultimately used."

The lawyer added that, "even if she was HIV positive, without Ms. Nolan's permission to sell her photograph - and specifically her written permission - Getty is liable for violating Ms. Nolan's basic rights to privacy under New York Law."

Nolan seeks at least $450,000 in compensatory and punitive damages for alleged use of her image without permission.

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