Avril Nolan, a 25-year-old woman from Brooklyn, was photographed for "an online music publication” years ago," according to the New York Post. Nolan said that the photographer "had no written release or authorization" to sell her image to another party.
Through a circuitous series of mistakes, the image would resurface in a big way. The original photographer later sold Nolan’s picture to Getty Images, a massive stock photography company. Last April, Getty sold the image to The New York State Division of Human Rights, which last month ran a magazine ad for New Yorkers living with HIV, informing them of their state-protected rights under the New York State Human Rights Law, and featuring Nolan next to the words "I am positive (+)" and "I have right."
The ad, which the New York Daily News notes "did not ID her as merely a model," ran in the free AM New York newspaper on April 3. According to its media kit, AM New York has a print and digital audience of over 1.5 million New Yorkers.
One of those New Yorkers was Nolan’s exercise instructor, who, according to the Post, reached out to Nolan via Facebook about the ad.
Nolan promptly filed a lawsuit last month against Getty Images for $450,000, stating in court papers that she “became instantly upset and apprehensive that her relatives, potential romantic partners, clients as well as bosses and supervisors might have seen the advertisement.”
Her lawsuit claims that Getty Images “never requested proof that [Nolan] had executed a legally enforceable and binding written model release.”
At the end of last month, Judge Scuccimara ruled in Nolan’s favor with distinctly poz-phobic language. Calling HIV a "loathsome disease," Scuccimara ruled that "the state was negligent," and that the state-sponsored ad was defamatory for making Nolan to appear to be HIV-positive. (The Post reports that Nolan is also pursuing a legal claim against the state's Division of Human Rights.)
The judge wrote that the ad harmed Nolan by linking her to a population that faces “public contempt, ridicule, aversion, or disgrace.”
“Not just sexually transmitted diseases fall under the loathsome disease category,” he wrote in the ruling, “but any disease that arouses some intense disgust in society, in part because it is viewed as incurable or chronic.”
The Postreports that a lawyer for New York state’s Division of Human Rights argued that HIV is not a “loathsome disease for defamation purposes.”