Hailey Clauson, Urban Outfitters Case Moves Forward

Another legal story this morning. You may recall that in March 20120, photographer Jason Lee Parry shot model Hailey Clauson, who was 15 years old at the time, for an unnamed Los Angeles-based magazine. "She is posed in a blatantly salacious manner with her legs spread, without a bra, revealing portions of her breasts," the lawsuit says. Urban Outfitters began selling Blood is the New Black-branded t-shirts, which featured the image emblazoned on the front of them. In August, the model and her parents brought a suit against Parry, Urban and designer/retailer Brandy Melville, claiming they never approved their use of the images. The lawsuit seeks more than $28 million in damages and is currently ongoing in Federal Court in Manhattan.

Well, that case is going to court. Urban, Blood is the New Black, and Brandy Melville sought a dismissal of the case based on the grounds that they were unaware that Parry had not gotten a release for the photo, but a New York federal judge has rejected their claim, stating that Clauson “has sufficiently alleged a cause of action against Urban Outfitters for use of her image to create false endorsement or false designation of origin, as well as claims for false representation of the characteristics or qualities of plaintiff’s modeling services.” He further added that the plaintiff showed sufficient cause that Urban used her image in violation of the New York Civil Rights Law.

In the suit, which has since settled out of court, Clauson argued claims for false endorsement, false designation of origin, false representation “of plaintiff’s modeling services,” as well as violations of New York’s civil-rights law (with regards to the unauthorized image usage) and common law libel. Thus, while the copyright in the photograph belongs to Parry (the photographer) because that's how copyright law works, models still maintain rights stemming from the use of their images.

In entering contracts with agencies, models establish a relationship that extends to their image rights. Often, models grant their agency the right to assign the use of their images to advertising agencies and clients, which, in turn, use those images to endorse or sell products and services, in exchange for compensation to the model for the photo shoot but more importantly, for the use of the images. The durational and regional scope of the usage of such photographs is agreed upon between the model and his/her agency and then between the agency and the third party client. The model is entitled to receive compensation pursuant to a contract between himself/herself and the modeling agency and in consideration of the scope of the use of the photos. In addition to these rights, models’ rights over images may also result in claims of right to publicity if use of images follows a lack of consent to by the model, particularly in California, where the case law surrounding right of publicity is particularly strong. Hence, Clauson's ability to bring suit.