The Strange Case Of The Modeling Polaroid

- - Ethics, Just Plain Dumb

contra-vampire-weekendLast month Vanity Fair had a web exclusive on a fascinating story over a disputed model release. The ultra-hip band Vampire Weekend, who perform their concerts in Ivy League-style getups, seemed to have stumbled upon the perfect image for their new album Contra. Months before the debut on January 12th this year, a photograph of the ultimate prepster: blond hair, blue eyes, popped collar, made its way around the internet linking to a site called, I Think Ur a Contra. When the album finally dropped the picture was the cover and became an integral part of the bands website and tour.

How they acquired the Polaroid is where this story gets fascinating. According to the band they bought it off New York photographer and filmmaker Tod Brody for $5000. He says that he took the photo in the summer of 1983 during a casting session for a television commercial. But, Vanity Fair has an interview with the model, Ann Kirsten Kennis, who alleges that the photograph was instead taken by her mother and somehow picked up by Brody. According to VF she has a similar looking Polaroid of she and her sister framed in her house. Ann, apparently tired of seeing her picture plastered all over the place filed a $2 million misappropriation-of-image lawsuit in LA against Vampire Weekend, Tod Brody, and the band’s London-based label, XL Recordings.

But, here’s where it gets real interesting. According the Vanity Fair:

“If the Contra case does go to trial, the outcome could hinge on a key document: a model release form that appears to be dated July 30, 2009. (The date is crossed out and re-written.) The form is from Vampire Weekend Inc. to someone named “Kirsten Johnsen” (spelled “Johnson” elsewhere on the form), who signed her permission for the band to use her image for a fee of $1. The form contains no mention of Brody, but it does include an address named in the suit as Brody’s residence. No release form from the 1980s has yet been presented in court.”

To me this is a clear example of a photographer providing a model release where one didn’t exist and having it blow up in his face. $5000 bucks in the pocket from an old casting picture that nobody will notice… To make matters worse, there is an entire website dedicated to uncovering Tod Brody as a fraud: http://www.todbrodyfraudblog.com. This is not looking good for Tod. My guess is that this thing will be settled out of court and we will never know what really went down. What’s interesting to me this idea that companies are somehow responsible to fact check a release that’s given to them. I’m sure there’s some legal precedent that could be established if this goes to trial or maybe it already exists. Either way it’s a fascinating story to read.

There Are 33 Comments On This Article.

  1. The fascinating thing about this to me is her response. She is suing them. Dumb dumb dumb. Totally appropriate for 1983, but dumb in 2010. What she should have done was call up Ford models, say hey, I am the Vampire Weekend girl, lets see what sort of campaigns we can get. How can we capitalize on my new found fame? Think Deisel, think cosmetics, think some irreverent ad job. I mean, the band and the label made her famous for free. Her face/brand is now world famous. There is tremendous value in that. She shold be on Oprah, she should be sending them thanks you notes, not a lawsuit.

    The thing was, in the 80s, it was all about control of image. Who gets to see what, when and for how much. Now it is about how many people know about me? That is where the value is. Could you imagine facebook or youtube in 1983? No way, because it was all about control. Not true now. Their is a whole industry out there whose job it is to make things/brands/people virally famous.

    But of course, it is her image, and the guy seems to be a creep, and her first response was see a lawyer, and what do lawyers love to do? In the long run she may have had a whole new career out of this, one that was much bigger than her original one.

    • She’s not the same girl in the pictures any more. She’s 30 years older. And wiser.
      Yes, control has changed. But the rules haven’t. She’s right to sue. Sounds like the photographer has a history.
      I can’t imagine the precedent being set that clients must somehow verify the efficacy of a release. It would require a notary for every signature. Ugh.

    • @David Harry Stewart,
      Yes, I am just dying to see a campaign featuring the 46 yr old face of the girl on the cover of the Vampire Weekend record. I bet CAA can’t wait to sign her up. She is such a fool for trying to get 2 million when she could be world famous–I bet she is even prettier now! And skinnier! Move over Gisele–Here comes Contra Cougar! The world awaits!!

    • @David Harry Stewart, I agree with Bill and Jerry. Also, not everyone is dying to be famous. Imagine that…

    • @David Harry Stewart,
      And aside from Jerry, Bill and Kat’s very valid points, even if she was still young and did want to be famous as per your scenario, there’d be nothing stopping her from suing for $2M *and then* approaching Ford, Oprah and everyone (or in fact, setting up her own agency with a million or more seed money).

  2. If the legitimacy of the model release weren’t in question, I would not give much weight to the fact the model has a similar photo with her mother at her in her possession. This does not strike me as odd. I often photograph the mothers with their daughters in a quick candid image, if they are present at the end of a shoot. The moms are proud of their girls/women. A copy is given to them as a memory of the life moment. So to me, it would not be unusual that a model may have a few photos in their possession from the day of a shoot. But sans a model release? or a questionable model release after selling the image? Or licensing? Pandoras box! Oh my!

    I know alot of photographers who 1) do not get model releases signed and 2) and do not copyright their work. I think the assumption is this will never happen to them.

    I keep two paper files to head off future ownership and rights issues. One file holds my Copyright Registrations and the other Signed Model Releases. Model releases are extremely important. I am glad I started this practice early, so it has become habit to ask for and take the time to deal with it during the shoot.

    I usually keep a long model release, a short model release, and a minor child model release and working pens in my camera case.

    As photographers we cannot derail every legal issue, but we can minimize them. Thanks for the post Rob.

  3. @David Harry Stewart..and everyone must want to be famous, right? Who could possibly desire privacy?

  4. I’m a little tired of this story, even though I was thinking of it again last night for some reason. Anyway..

    What I don’t understand is how the ball was dropped from such a great height in this case. The band is crazy popular – there’s no getting away with anything at their level.

    Someone should have MADE SURE that this was solid. The photographer should not have tried to pull a fast one. The bands handlers, PR, production, all the way down and up the line, should have checked on this and then double checked. The band is way too big to have let this happen. Epic fail all around.

    It makes me wonder if at the first level, the photographer contacted the woman in the photo and explained that her image was being considered for use and worked out a payment – what would have been the end result? Most likely a lot less damage all around for say maybe a few thousand dollars.. Saving nickels here and there often ends up meaning spending/losing tens of thousands or more. Sad.

  5. scott Rex Ely

    So the question is: Did he forge her signature?
    Wouldn’t that be the first place to look?
    How would he possibly be able to forge her signature accurately if he didn’t have a copy of it?

  6. @Jeff James, Excellent point and well taken. However she is/was a model. Fame and buzz are the name of that game. If she is entering a lawsuit, it is to make money. Since she wants to capitalize on the use of her picture, my suggestion was that she would be better served riding the wave rather than fighting it. Suing will not get you privacy. A simple letter to the band saying stop using my photo will do that. Suing gets you in Vanity Fair, and it gets you a happy lawyer. But it is her face, her image, and she has every right to sue.

    I keep model releases and model use agreements going back 30 years. In spite of having fully binding model releases, I have been sued, so I have a biased opinion. The suit was completely without grounds, involved a fully binding double witnessed model release. Luckily for for me I have insurance to cover such an event. It was eventually dismissed, but not before my insurance company paid a tidy sum to a law firm to defend. Thus my perhaps anti-lawsuit stance.

  7. With the date crossed out and the model’s name listed inconsistently throughout the release, it’s surprising the music company didn’t see this as a red flag. I think publishers of images need to be responsible enough to double check releases. I had allowed someone to use an image for a mailing but specified it was not to be used for anything else. Four months later I opened a magazine and there was my image covering half the page, with no credit, etc.
    When I called the magazine they claimed no responsibility. They never even asked to see a release in fact. I was ultimately compensated for the image but it was sheer luck that I even saw it in the magazine.

  8. scott Rex Ely

    Where is the contract between the band and Mr. Brody? I would assume that a record company would have some sort of an indemnity clause protecting them from any claim that the subject might have for misappropriation. Why would they ask for a model release and not have a contract for Brody as the vendor? We see it all the time in photo contest rules and agreements. If a contract does exist between the label and Brody what she gonna sue for, Brody’s empty bank account? 5K is small claims in LA. Sounds like this is gonna be one of those, Wan, wan, wan wan wan….

    • @scott Rex Ely, I agree–I would think that Brody would have signed a contract with the record label, mentioning that he’s responsible for the legality of the picture. Whenever I’ve worked with labels and magazines and other clients, I usually sign a contract stating that the pictures I provide are what they say they are (properly released, etc).

      I don’t know all the ins and outs of this case, but from what I’ve read it does seem quite likely that Brody got greedy and tried to get away with a scam.

  9. There has got to be more to this than what has been published. Most here have made valid points about releases and being seenso you can have a resurgance in a career. I have wager that she was contacted and wanted a larger sum than would have been, was paid.

  10. This proves the “don’t ask, don’t tell” policy doesn’t really work in business. It feels like a case where everyone involved liked the creative treatment based on a 28-year-old image. The photographer produced a model release (even though it appears to have flashing neon red flags all over it) and no one really wanted to pursue it further because it might cost more money or delay production. They accepted questionable documentation and it backfired.

    They probably could have shot a new image, with a currently working model, with fresh documentation, and make it look pretty close to the original for less money than the “shoot first, apologize later” approach will ultimately cost. This just seems like a case of laziness, or maybe arrogance.

  11. I can imagine how this one went down. I used to crank through a bunch of Polaroid for casting calls; if the model liked it I shot another and sent them on their way (hence the one she has in her house). There never was a model release because they were never intended for publication. Some went in the file for a call back and the rest got thrown in a box somewhere. The document produced here doesn’t pass the smell test.

    Whether or not Tod Brody is a fraud is a gray area but I have pretty much decided he isn’t much of a photographer. I could barely get through his web site – hazy glamour shots, pictures of public art, bad HDR, lame street photography and lots of snapshots being called portraits. Yuck.

    • @Andrew Hyslop, its confirmed that Tod Brody is a repeat scam artist. I think there really is no question here about who fleeced who

  12. Another great lesson in why the little annoying details may be little and annoying but are often very important.
    A lawsuit is really what needs to happen (if anything happens) as while it’s sometimes considered ‘slimy’ it may be the quickest and only way to get some people to act like adults here especially when there are possibly forged documents involved.

    I found it interesting that on his site Tod Brody questions the models understanding of the industry and her experience but ignores the real question, whether or not he had the rights to sell her photo for commercial use. He sounds like someone best dealt with through the courts instead of playing his little game.

  13. I don’t think the issue is fact checking liability. Rather that Vampire Weekend and XL Recordings have more money than Tod Brody. Any attorney taking this would go after the bigger commission, because that’s what they are all about. Quite likely there will be a settlement and payment, then the cover will get pulled, and years later that will become a collectible.

  14. A Realist or a Cynic

    This happens all the time – companies don’t double check (or often even single check) releases. I have seen it happen on bigger jobs for bigger clients. Kinda remarkable, but it happens. The forging the model release is where things seem to go a bit awry, rather than settling with her initially.

  15. I don’t understand why they attempted to use a photo without a clear and definite release form, when they could have recreated a version of this photo fairly easily. it’s not like they would have had to recreate, say, the famous avedon shot of the model stroking the elephant, or fly to New Mexico for Moonrise.

  16. Actually photographers should be using episodes like this to show why agencies shouldn’t be using stock, they should be shooting NEW.

  17. Sad little humans all around. 2012 hurry and get here, it is has become stupid tragedy this story called Earth.

  18. The final user (record label) is responsible for the validity of any releases. Of course, they could go after who provided them with a fraudulent release….

    The lawyers are going to go after who has the money. From that blog, it looks like this scam artist has filed for bankruptcy more than once, so the money is with the label. They may well have insurance to cover this error & omission. $2 mil sounds about right.

  19. This is an amazing image .
    How could a quick snap somehow capture a decade?
    Do any of you guys know where i can get a time machine?
    Thanks,
    Tim

  20. Some writer said the problem with writing is the paperwork. If an image is to be used for a commercial purpose there must be valid releases for that purpose. In this case a signed and dated release from the subject.

    Even in this era of “everything is mine” these rules are in force.

  21. I tend to favor the photographer’s rights, but from the facts I read here she is right to get back at them for stealing the pick and merching it under a bogus release. I’m lazy, but that’s just ridiculous. More power to ya fresh collar vampire weekend girl!

  22. There’s just been a small storm in the courier community about a missing release form from a microstock site. A blurred yet recognizable photo of a bike courier was used for major advertising – bought from Shutterstock without a release. No legal action was taken – it all got settled with free tyres. :-)

    Have a read – the 4-day saga starts here: http://www.movingtargetzine.com/article/corey-calls-for-a-boycott-of-kenda-tyres and concludes here: http://www.movingtargetzine.com/article/coreys-epilogue-to-photogate