Kate Upton’s (dramatic) history with Victoria’s Secret is one you've likely heard a thing or two about. A quick recap: In 2012, VS casting agent Sophia Neophitou went on record as saying she would "never use" Upton for a VS show. She went on to describe Upton as a “Page 3 girl,” “too obvious,” and as being “like a footballer’s wife, with the too-blond hair and that kind of face that anyone with enough money can go out and buy.” Despite these disparaging remarks, Upton has gained notoriety, showing up on two Sports Illustrated covers and being labeled as “the hottest supermodel on Earth” on Vogue’s cover. So, it would seem, the model has moved on and above VS. With the exception, of course, being a recent VS catalog.
The lingerie giant features a pic of Upton on the back cover of its last catalog. Turns out, the picture is actually from a VS shoot in 2011; so, the model is not currently in business with the lingerie brand. Some publications have said the model was “furious” about the use of an old photo without notifying her, others are saying she merely was “not thrilled” about it.
Whatever the case is, we wondered what legal recourse (if any) might be available to Upton for VS’s use of her image. Upton's best argument would likely be that VS’s use of an old catalog photo results in appropriation. Ainsworth v. Century Supply Company, an Illinois Appellate Court case, defines appropriation as the use of one’s name or likeness, without consent, and for commercial purposes. However, without a good look at Upton’s contract with VS in 2011, it’s hard to say whether or not unlimited use of the photos was given to VS, which would take away the “without consent” element.
Our guess is that VS has contracting with models down to a science, and this is a perfectly legal move on its part. As a result, Upton is left with the options or being “furious” or “not thrilled”." Unless, of course, and as some are speculating, Upton’s image in the catalog signifies that she might be headed for Angel wings.