Publicity Rights, Indemnification and the Coolest Album Cover in Recent Memory

In this post-album world, where we usually buy our music song by song, the album cover is something of a lost art.  In 2009, Vampire Weekend infused some life into that art by building an entire semi-viral marketing campaign around a terrific image that turned out to be the cover art for their next album, Contra.  That album cover was the subject of an interesting lawsuit filed last year in Los Angeles, which settled earlier this week.

Contra’s album cover is one of the best in recent memory.  If you’re a fan of Vampire Weekend, you know what I’m talking about.*  If you don’t, you can get a good look at it here at Rolling Stone’s site.  It’s hard to put one’s finger on why it’s so good.  It looks like a candid poloroid (and, perhaps, it is).  The subject is pretty but gawky.  Her eyes are wide, less with surprise than with a kind of intensity, her mouth slightly open as if she were about to say something.  The lighting implies that it was taken, with a flash, in a darkened room.  It’s as though she were in between stages of her life–between teenager-hood and adulthood.  If it’s adulthood she is seeing in those wide eyes, she’s apprehensive but excited about it.  As the band-members were quoted as saying, “The ambiguity of her age and expression make [them] feel like she was on the cusp of something.”

I cannot, strictly speaking, call myself a fan of Vampire Weekend.  I own one of their songs, “A-Punk,” which roughly every human being probably owns because it’s a great song and isn’t even on Contra.  But I distinctly remember being fascinated by album cover when it popped up on Pandora.

It turns out that the subject of the photograph is a model who had a successful career in the 1980’s, Kirsten Kennis.  It was probably taken on a Polaroid camera in the 1980’s, and it was pinned up several times (you can see the pinholes in the image).  Beyond that, little can be said with certainty.  We aren’t even sure who took the photograph.  Photographer and filmmaker Tod Brody says he did, that it was a casting-call Polaroid taken of models before a photo-shoot.  Kennis says he didn’t and perhaps her mother did.  Just looking at the photo, you can’t tell.  She looks professionally made-up and wearing a polo shirt that doesn’t look like it belongs to her, but her hair’s a mess and the lighting doesn’t look like what you’d find in a studio.*

*  For a fuller recounting of the photograph, and some other things, check out this Vanity Fair article about the lawsuit.

The story recounted by Kennis and her lawyers* goes like this.  In 2009, Vampire Weekend was looking for a photograph that would capture the “vibe” of their next album.  They found what they wanted on flickr.com.  They also found what they thought was the photographer: Brody.  They contacted Brody, asked for a license and asked–because they weren’t stupid–for a copy of the model’s release.

*  See her somewhat overstated complaint (attached to the removal papers) and her well-drafted motion for summary judgment (only nine punchy pages long!).  The case settled before Vampire Weekend got a chance to tell its side of the story, and the band has been very cautious in its public comments about the suit.

That’s because Vampire Weekend knew there were two sets of rights to worry about.  First, of course, was the photographer’s copyright in the photograph.  But the subject of the photograph probably also had rights in her own image, what is known as the “right of publicity.”  This is the right to profit from your own likeness and celebrity (“commercial identity”).

I say “probably” because not every state recognizes the right of publicity, and those that do recognize it in different ways.  Unlike copyright law, which is a single, national law (with, admittedly, some variation among the various Circuits), the right of publicity is a creature of state law.  You might have amazing rights in your own likeness in one state, have very limited rights in another state, and no rights at all in yet another state.  It all depends on what state’s law applies–which can be difficult to know if the actors and events take place in different states.

It’s a little hard to locate the basis for the right.  We don’t normally mind when people take our pictures, and we don’t normally mind when people look at pictures of ourselves that we approve of (as opposed to pictures of ourselves in the middle of sneeze, say).  (You can see Tara and me here.  We don’t mind.)  But we naturally feel “exploited” when someone else makes money off that photograph.  We don’t have a copyright in the photograph–the photographer does–but we have some kind of right.  It’s just hard to say what it is.

Some states resolve this problem by giving everyone a right of publicity: ordinary folks, models, actors, you, me, everyone has a right to control their own likeness.  Such states see the right as a personal right.  Other states take a more nuanced approach.  They see the right as a commercial or property right, and only people who can actually make money from their likeness or celebrity are eligible.  This would rule out ordinary folks.  Finally, other states don’t see it as a right at all.  At least one state, California, sees it as both.  It’s a personal right to which all are entitled, but it is also inheritable, like property.  Many other states haven’t had the opportunity to decide.  By my count, there are about 28 states that recognize some form of publicity rights.

The elements for violation of the right of publicity (also known as “misappropriation of likeness”) vary from jurisdiction to jurisdiction, but they usually involve at least (1) a commercial use of the likeness and (2) a lack of consent.  Vampire Weekend couldn’t do very much about the first element:  they used Kennis’ likeness not only for their album cover but also for their clever pre-release marketing campaign.  The First Amendment right of free speech poses a significant limitation on the right of publicity, as you can imagine, but it didn’t apply here.

But what about the release Brody obtained?  Didn’t that protect Vampire Weekend?  It would have, if it were genuine, but Kennis has contended–pretty convincingly, I think–that it was a forgery.  The name is wrong, the signature is wrong, it doesn’t mention Brody, the price (a single dollar) was too low for an established model, etc.*  Also, Brody went AWOL in the lawsuit.  When Kennis moved the court for a finding that the release was forged, Brody had a golden opportunity to swear under oath to facts showing that it was genuine.  But his own lawyers couldn’t find him and eventually withdrew from the case.

As mentioned, Kennis says that Brody didn’t even take the photograph.  The origin of the Polaroid is a fascinating mystery, involving casting-call procedures in the 1980‘s, and so forth.  But it’s also irrelevant.  The only relevant question is whether she gave consent.

Well, what was Vampire Weekend supposed to do?  They had a license; they had what (as far as they could tell) appeared like a perfectly good release.  I don’t think we can insist (as Kennis at one time did) that they had a duty to look behind the release to verify its authenticity.  Photographs are licensed all the time; if every potential licensee had to independently investigate the authenticity of every release, the market would gum up.

All Vampire Weekend could do was insist on an indemnification from Brody.  It is, after all, Vampire Weekend that was about to be publicizing the likeness and, therefore, assuming all the risk, but they didn’t have access to all the necessary information–Brody did.  They needed Brody to “warrant” that he was the owner of all of the rights in the photograph and had secured any necessary releases and licenses; and that if he didn’t, and Vampire Weekend got sued because of it, he’d reimburse (“indemnify”) Vampire Weekend for any damages they suffered.

Vampire Weekend didn’t quite do this.  But, if Brody really did sell them a license based on a bogus release, do you really think the law would leave Vampire Weekend without a legal option?  Of course not.  When Vampire Weekend was sued, one of the first things they did (after getting the case out of California State court and into federal court) was “cross-claim” against Brody for all manner of things, basically blaming him for everything.*

*  Vampire Weekend alleged, among other things, that Brody told them he had been married to and had children with the model.  For his part, Brody denied the charges, but his answer didn’t provide any details.

Indemnifications are all well and good, legally, but they suffer from an important practical limitation: the indemnitor’s ability to pay.  If Vampire Weekend were liable for, say, $1 million, do you think Brody could make Vampire Weekend whole?  Probably not!  I can think of only three ways around this problem:  (1) make sure your indemnitors have deep pockets and are solvent; (2) insist that the indemnitor take out a bond sufficient to cover a large damage award (which isn’t always easy to do, and isn’t necessarily cheap); or (3) buy your own insurance against a possible infringement claim (which is likewise expensive).

Last week, Kennis dismissed her lawsuit against Vampire Weekend and Brody “with prejudice” (i.e., she can’t file the lawsuit against them again), having settled with Vampire Weekend for an undisclosed sum.*  Vampire Weekend also dismissed its cross-claim against Brody–but without prejudice.  Vampire Weekend hasn’t said what its plans are, but they’re leaving open the possibility of trying to recoup part of the settlement from Brody.  We’ll all stay tuned for that.

*  Kennis was originally seeking $2 million, but that’s just a number her lawyer dreamed up for her Complaint.  We have absolutely no idea what she settled for.  We can’t even speculate because we don’t know what Vampire Weekend came up with to weaken her claim.

The GI Joe PSA* here is that, when you’re thinking of taking a license from someone (which is in itself the right thing to do), realize that you’re going to be one making use of the work, mark, invention, likeness, etc.; and, therefore, the one who is taking the risk for claims of infringement and misappropriation.  You’ll want to take steps to ensure that you really are acquiring all the necessary rights to use the work, mark, invention, likeness, etc., such as investigating the reputation and solvency of the licensor, insisting on warranties and indemnifications, and possibly obtaining bonds and insurance in situations where you don’t feel sufficiently assured.

I don’t think an Internet meme ever really dies.  If it was funny two years ago, it’s funny today.

Thanks for reading!