Model featured in HIV ad without her consent can sue, court rules

Five years after learning her photo was used without permission in an HIV-related ad, one New York woman is finally having her way and heading to court.

In April 2013, an acquaintance of Avril Nolan told her he had seen a photo of her on a quarter-page color ad in the free AM New York newspaper, the New York Post reported at the time.

The ad in question was paid for by the New York Division of Human Rights (DHR) to promote the rights of HIV-positive individuals. It featured Nolan’s face embedded with the text “I am positive’’ and “I have rights.” She was 25 years old at the time.

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After years of legal back-and-forth, the Post reported on Jan. 16 that a Manhattan appeals court unanimously voted that Nolan can rightfully pursue a $1.5 million claim against the agency on grounds of emotional distress.

The outlet further detailed that though the Court of Claims had ruled in 2015 that HIV was still stigmatized enough to allow Nolan to sue, the agency appealed and argued that “HIV is no longer a shameful condition” — but lost again with the Jan. 16 decision.

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“The very fact that DHR highlighted the need for people with AIDS to not feel stigmatized is recognition that they do,” Justice Angela Mazzarelli wrote.

“This is not to imply that we in any way regard HIV or any other disease to be ‘loathsome.’ But “a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society,” Mazzarelli added.

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According to the Post’s 2013 story, Nolan’s controversial photo was first shot by photographer Jena Cumbo, who later sold the image to Getty Images, even though Cumbo “had no written release or authorization,” Nolan told the Post. Getty later settled with Nolan in 2015.

For Nolan, who works in public relations, the damage had already been done.

“Upon learning of the publication, [Nolan] became instantly upset and apprehensive that her relatives, potential romantic partners, clients as well as bosses and supervisors might have seen the advertisement,” court documents say.