Things can get complicated and courts and lawyers can come into the picture when a Hollywood movie features people who did not sign on as cast members. Just check with the comedy movie Couples Retreat starring Vince Vaughn.
In the movie, four couples embark on a vacation at a resort to work out the issues in their relationship. In one of the scenes, co-star Jon Favreau’s character pleasures himself while starring at a sexy bikini-clad bombshell featured in a brochure he was holding as he lay down on his back.
Now, the woman in the brochure has filed a $10 million dollar lawsuit against the moviemakers NBC Universal for defamation and invasion of privacy. The Manhattan woman Irina Krupnik, an ex-model who now works as a makeup artist had the photos taken about 10 years earlier when she was about 21 years old. She said the way she was portrayed in the movie in a “sexual and degrading context” caused her great humiliation, embarrassment and emotional distress.
So, that’s her lawsuit. Now, just what can she win? Well, only the court can decide whether she wins her case or not. But for the moment, here’s how it looks. Of the two claims, the defamation claim is more tricky for her because of the all the slippery nooks and crannies of defamation law, especially in America. First, we are not dealing with a statement of fact here, which is the real meat of a defamation action. We are not even dealing with a mere opinion. We are actually talking about just a photo. Plus, some smart defense lawyer could entangle the case in a debate about whether a fashion model should be treated as a “public figure” or a “private figure” and this can make a huge difference in the way it all ends.
But her chances are much better with respect to the privacy claim. Here, there is not much doubt that what NBC Universal did in the movie amounts to using her image and likeness for profit. But that’s not the end of the story. As it happened, she signed a general release after the photo was taken. Such agreements usually transfer to another person (usually the model’s agent or other handlers) the right to authorize other people to use the photo in the future. The question now is whether the terms of the general release covers the way the bikini photo was used in the Couple’s Retreat movie. And to answer this question, the court will have to look at the agreement itself.
Krupnik says she couldn’t have imagined at the time she signed the release that the photo would be used in a “quasi-pornographic context.” Well, maybe so but the court will not simply decide the case on the basis of what she alone was thinking at the time, even if she was being entirely honest.
If the plain language of the agreement does not clearly say that the photo could be used just the way NBC Universal used it in the movie, then the court will consider how folks in the modeling industry would have understood the language used in the release at the time she signed it. This is called “trade usage and custom.”
At the moment, it is not yet clear how NBC Universal got its hands on the photo it used in the movie. But if, for instance, the moviemaker got a license to use the photo from perhaps Krupnik’s agent or somebody else with the power to license the use of the photo to them, then they would be in a much stronger position in the lawsuit. Needless to say, the actions of an artist’s agent may sometimes make all the difference as happened when singer Debra Laws lost her case against Sony Music Entertainment in 2006 because her agent granted a license to the recording company to use a sampling of her song on a different song performed by Jennifer Lopez and LL Cool J.
However, there are things Krupnik could have done early on to put herself in a great position overall. For instance, she could have simply retained her copyright in the photo. But she apparently lost that power when she signed the release. Also, she could have quite simply signed another agreement specifically giving her full control over the licensing of the photo to any interested users. Now, it is all a matter for the court.