Models from Next Unite Against Vogue and Moda Operandi
A group of models (all represented by Next, a top New York modeling agency) recently filed a complaint in the Southern District of New York in which they claimed that Vogue and Moda Operandi ("Moda"), an online luxury retailer, used their images to "advertise, market, and promote" Moda products on their respective websites without authorization. Top models such as Abbey Champion, Anok Yai, Binx Walton, Elizabeth Grace and Grace Hartzel are the plaintiffs in the case. So what is the exact nature of their legal claim against these two big names in fashion? These models regularly appear on the pages of Vogue, so it could turn out to be a bad career move if they do not have a solid legal case.
The plaintiffs allege that Vogue and Moda did not obtain a written consent when the two used plaintiff's editorials with Vogue for the advertisement and promotion of Moda products online. According to the complaint, such unauthorized use constitutes a violation of the New York Civil Rights Law § 50, which is often colloquially referred to as the "right of privacy" provision. The section provides that "a person, firm or corporation that uses for advertising purposes the name, portrait or picture of any living person without having first obtained the written consent of such people" has committed a legal wrong. Essentially, the complaint lists numerous instances in which Vogue and Moda should have obtained the consent of a model because agreeing to work for a fashion editorial cannot be interpreted to mean that the model also manifested assent for another unrelated commercial use.
There is also a commercial morality aspect to this complaint. These top models, as the complaint detailedly explains, have proved themselves to command a huge selling power. Their marketability derives precisely from how they have presented themselves in the market over the course of their career. It is thus in the interest of a model and his/her modeling agency to exercise some definitive measure of control over how the model's works are used in the marketplace. It is well-known that top models, with the help of discerning agents, choose carefully which job to accept and reject. Here, they do not want to give the misleading public impression that they have their thumbs up behind the products marketed by Vogue and Moda. The fact that Vogue and Moda are "sophisticated players" with respect to intellectual property does not help them very much either. Plus, seeking a written consent from the plaintiffs is not a difficult task at all in light of their existing course of dealing in this industry.
Vogue and Moda will soon have to answer to the complaint. At this point, I cannot think of a legitimate defense that can effectively defeat the models' claim. The industry is kinship-like in the sense that each player knows one another very well, even on a personal level. Things would have not escalated to this level had Vogue and Moda reached out to the models and fixed the situation early-on upon the service of the cease-and-desist letter. I am very interested in how this case plays out in the court if both sides decide not to settle. So stay tuned!
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