When You Can't Distinguish Fiction From Non-Fiction

She's a lovely girl, who once had a dream of breaking into fashion modeling. By the way, she is not, in fact, HIV positive. That part is a fiction. The problem is, those who saw this image believed fiction to be real, and so Avril Nolan has taken the photo agency to court.

Ms. Nolan had a portfolio, as would any other young lady trying to land jobs in modeling. She no doubt spent a great deal of money in having that porfolio put together so that it would be professional and display her features in the most attractive way. Now 33, she has moved on in her career and is in the publicity game in New York City. Those two-year-old photos, however, remain with the photo agency like artifacts of another era.

At some point, the agency found an old picture and thought it would work well for an advertising campaign being run by the New York State Division of Human Rights. The government agency is keen to normalize the image of the HIV patient, to show all of New York that such a person is not some drug addict or gay male. No, the HIV positive population includes your average (albeit strikingly pretty) young lady who could be sitting next to you on the bus looking just like anyone you might know. Assuming you know some attractive people.

For her new friends in New York, it must surely have been a startling revelation to see a younger version of their Avril looking back at them from the page of AM New York, touting her HIV positiveness. They'd had no idea of her past, and would it be safe to shake her hand again? What about her boyfriend, can you imagine what he would have thought when presented with this bit of advertising fiction that wasn't clearly labeled as fiction?

According to her lawsuit, Ms. Nolan claims that she never issued any sort of release for the photo, and so the agency licensed it to Getty Images illegally. They had no right to use it for their own purposes without first asking her permission. They certainly had no business profiting off something they did not own, which she owns, and for which she never earned anything but pain and suffering and humiliation.

To make matters worse, she is in publicity and her clients might not have been pleased to discover that their PR person was HIV positive because that doesn't imply the leading of a pure and faultless life. If she wasn't into drugs, then, she must have been into unsafe sex and if she can't be trusted to look after her own health, how can she be trusted to look after someone's account?

It's a straightforward case, in that the original photo agency admits she hadn't signed a release. As for Getty Images, they can't be blamed if they bought a picture on false pretenses, unless they are required to have the model's release in hand when they use a licensed image. In which case, they didn't, and the lawsuit will most likely be settled out of court.

What of the Division of Human Rights in New York that once trumpeted how they are all about protecting the rights of HIV positive people? They may have to go back and re-visit the old advertising campaign, to clearly state the genre in which they're publishing their advert. The cover image is pure fiction. The content is genuine. It's that, or find an equally attractive but genuinely HIV positive model and make the lot a work of non-fiction that doesn't humiliate anyone.