Woman unwittingly used in HIV ad awarded $125,000

Dec. 12, 2018 / 6:37 AM GMT

By Dareh Gregorian

A woman whose picture was used in an HIV ad campaign saying “I AM POSITIVE (+)” without her knowledge has been awarded $125,000 in damages.

Avril Nolan, who does not have HIV, was “devastated” when an acquaintance sent her a copy of the ad from the newspaper AM New York back in 2013. The quarter page ad from the New York State Division of Human Rights featured a large picture of her, with “I AM POSITIVE” and “I HAVE RIGHTS” written across it.

“The public is then advised those who are HIV positive have rights protected by the New York State Human Rights Law, and information on how to contact the agency is provided,” Justice Thomas Scuccimarra wrote in a ruling made public Tuesday. “Ms. Nolan was not HIV positive, and no disclaimer to the effect that the person depicted as a model appears in the advertisement. Ms. Nolan did not give permission for the use of her photograph, taken in an entirely different context, and apparently thereafter sold.”

Nolan, who was working in public relations, had posed for the picture for a “street-style” magazine photography piece about her musical interests in 2011, the judge noted. The picture was later sold to a photo agency, which licensed it for the Division of Human Rights ad.

A distraught Nolan called the photographer after seeing the ad, and the photographer tried to get DHR to take the picture down. A DHR employee initially responded, “We need to hear directly from the model via email that she will not hold DHR liable for any usage of her image in this campaign. Upon receipt of that email from Ms. Nolan we will pull the image from all future ads related to this campaign,” according to the judge’s ruling.

Nolan felt “held hostage,” which added to “anxiety and distress,” the judge wrote.

The tumult caused her added stress at work, and made her “paranoid” that strangers would recognize her, the ruling says.

She later learned that ad had run in four print publications and three online publications. “The concerns returned, ‘multiplied,'” the judge noted.

Nolan asked for $1 million in damages for the “embarrassment, humiliation and fear she experienced, and continued to experience for at least six months to more than a year.”

The state argued Nolan was “entitled to reasonable compensation, but not a windfall,” and suggested she receive no more than $25,000.

The judge, who’d already ruled earlier in the case that Nolan had been defamed, found $125,000 would be “reasonable compensation.”

Nolan’s lawyer, Erin Lloyd, declined comment. The New York State Attorney General’s office, which defended the case, referred a request for comment to DHR, which did not immediately respond Tuesday night.

Nolan reportedly struck a confidential settlement with Getty Images over its role in the ad in 2015.