Photographers may not be liable for improper publication of model's photos

Phenomenon Productions, Inc., an assumed name of photographers Toriano Treadwell and Anthony Thomas, signed a contract with Diamalynn Arnold to publish her pictures on a website they own.  The site is ostensibly used to garner publicity and contracts for models.  Eventually, however, Arnold found her likeness on another (allegedly racier) website operated by the photographers, a s0-called "street magazine" dedicated to illegal, underground conduct, and an advertisement ostensibly used for prurient purposes.  She sued claiming an invasion of privacy that portrayed her in a "false light" and also arguing that the defendants had illegally appropriated her likeness for commercial value.  The Court of Appeals upheld dismissal of all of her claims except the latter appropriation claim.

The Court held, in essence, that she did not provide sufficient evidence to demonstrate a "palpable difference" between the two websites, and therefor her claim that the photographers had degraded her by posting the photographs on the racier website was tossed.  The judges went on to rule that she must prove actual malice on the part of the photographers in order to hold them responsible for placing her photograph in the street magazine celebrating criminal conduct or in the prurient advertisement:  mere negligence in allowing that to happen was not actionable, according to the court.

In a twenty-first century demonstration of how commerce trumps both personal responsibility and ethics, however, the judges ruled that Arnold may have a claim for the commercial exploitation of her image, if she can persuade a jury that it has significant commercial value.  If she's just another schmuck like the rest of us, though, the mis-use of her image is not actionable.