30 Jul 2015 How the Joshua Resnick Case Ended Up
You probably heard about the Joshua Resnick lawsuit last year. It got a lot of mainstream media attention for a stock photo case and raised some interesting issues for stock photographers shooting models.
The Case: a Brief Overview
Joshua Resnick is a stock photographer based in Ohio. In 2013, he hired model Nicole Forni for a lingerie shoot. Forni had previous experience in this kind of modeling.
Resnick explained stock to Forni, as he does for all his models. She understood the concept and asked if the images could be used for pornographic or adult services. This is the where the disagreement began.
Resnick says that he explained that stock agency licenses prohibited the use of their images in the pornography industry. Forni says that he promised her that he wouldn’t allow such use.
She then signed the model release.
After the shoot, Resnick paid Forni via a PayPal payment to her agent, for which he states he has proof of payment. Forni says she was never paid. He also sent her some copies of the finished photos. She used them as her Facebook profile photo and her Model Mayhem portfolio, in relatively large size and without a watermark.
The images, available at the time on most top microstock agencies and Forni’s social profiles, quickly became popular for all the wrong reasons. They appeared on escort service ads, pornography ads and a variety of other adult-oriented websites.
Forni sued. She cited Resnick, Shutterstock, and a list of the companies that published the photos, 36 companies in total. She alleged fraud and contract violation on Resnick’s part, demanding in excess of $75,000 in punitive damages for each of six claims. From the other defendants, she demanded $225,000 each.
Shutterstock’s lawyers got the case moved from Ohio to New York, where IP laws were more established and Resnick was able to hire a specialist attorney.
He hired Nancy E. Wolff, which was a smart choice; Wolff is the go-to source for legal advice in the stock photo industry and has the knowledge and experience to make something like this go away. Which she ultimately did.
To fund his defense, Resnick started a GoFundMe campaign and reached out to the industry for help. He produced a YouTube video (since removed) explaining his side of the case and wrote an article on PetaPixel to draw attention to it. The crowdfunding campaign wasn’t successful in relation to the size of his expected legal bills. Ultimately, it proved more a forum for support and criticism than a significant source of funds.
How it Ended Up
The case was withdrawn “without prejudice” by Forni. That means it could have been reinstated at any time, so Resnick would still have had to live with the threat of it coming back. To head off that possibility Wolff negotiated a settlement, the terms of which are confidential. At least he can now sleep at night.
The impact of the lawsuit on his life has been huge. The thread of being financially crippled took a huge emotional toll on him and his family. He’s also changed the way he shoots, no longer shooting that style of photography, requiring more paperwork from his models, and spending a lot of time documenting proof of all conversations and transactions.
You might be asking, what about insurance? Resnick had insurance, but it didn’t cover this kind of case. His insurance company gave him a long list of reasons why they wouldn’t cover him. He has since found a new insurance provider!
Stock is Complicated for Models
Most models are used to shoots where the end use of the images is known in advance. Stock is different in that way, and because it’s not as common, a lot of models haven’t had exposure to it.
If Forni had won, this suit could have created a precedent for lots of similar cases. It would have significantly affected the cooperative relationship between models and photographers, and that would have had an impact in the production of all kinds of photography that uses models.
Fortunately, there’s no longer a risk of that happening, but until the case was withdrawn, no one was sure what the verdict would be.
This controversy exposed the complications of using models in stock. They need to understand and accept the risk of image theft and misuse implied in this type of business, as it is clear that Forni did not. A lot of models, agencies, and managers avoid working with stock photographers due to that risk, among other reasons.
It’s also worth considering the personal impacts of models’ professional choices. Some of them, like this woman, regret certain shots and even their entire involvement in the industry. It’s this feeling that lead them to request the removal of their photos from use, or even worse, to sue the photographers who they worked with. It is messy legal territory to protect oneself from being held responsible for someone else’s choices.
Minimize the Risks
Cases like are very rare, but their impact is very large. There are some relatively minor changes you can make to your processes to minimize your risks.
Check your release. If one is not already present, include a clause stating that the release is the entire legal agreement, which should exclude both verbal and written clauses both before and after signing the release.
Check your insurance. This kind of issue can devastate you financially if you’re not insured, but it can be covered for a near-trivial cost in insurance premiums (depending on where you live).
Educate your models. Explain that usage is protected by the chain of legal agreements from photographer to agency to customer, but that you cannot guarantee that their images won’t be misused. Let them know that they can sue end users for misuse, but that it’s not always easy, and that the release means they can’t sue you for violations committed by other parties.
Also help them realize that the context of the shoot can affect these risks; photos of a business team in an office are less likely to be used on porn or escort sites.
The lack of control over image usage is no greater in stock than most other photography businesses, given that photos inevitably end up on the Internet. But we don’t want stock photography to get a reputation for exposing models to greater risks.