THE VAMPY WEEKS LAWSUIT: A Brief Legal Analysis



Last February, we stumbled across a former Tripwire TV star on court television. Indie rock had killed her cat and she wasn't having it. Last week, the wire was aflame with news that Vampire Weekend is being sued by the young lady who dons the cover of their latest LP, Contra. She claims her photo, taken in the 1980s and allegedly used by the band without her permission, has been cause for the album's wild commercial success. She's asking for TWO MILLION DOLLARS in damages. Frontman Ezra Koenig spoke to NME about the suit and the band's label issued a statement on their behalf. Neither shed much light on what to expect, so we've turned one more time to our esteemed and ludicrously well-dressed legal consultant, Nathan Soderstrom. His analysis is still very expensive.

A couple of points about this lawsuit:

First, if one is into that type of thing, this suit is a textbook example of forum shopping. The plaintiff (Kirsten Kennis) lives in Fairfield, Connecticut, and is suing New York City-based Vampire Weekend and their London, England-based record company in... Los Angeles. This is presumably because the California misappropriation of identity statute allows a plaintiff to recover both actual damages (whatever amount should have been paid for the misappropriated image, emotional distress, damage to the model's reputation, etc.) as well as "any profits...attributable to the use" of the misappropriated image. This latter method of calculating damages is uniquely plaintiff-friendly, and is presumably the reason Kirsten's lawyers chose to file suit in California. Or, she may have chosen to sue with her Beverly Hills law firm just to show the Vampire Weekend guys that she, too, is on that rich person shit. Or not. Regardless, because Vampire Weekend played shows in California during which they displayed the image, sold the album in California, etc,, it is an appropriate venue for the suit.

Anyway, the complaint alleges that Vampire Weekend purchased the photograph of Kirsten Kennis from a photographer named Tod Brady for $5000. However, Brody had not actually taken the photograph, and no rights to the image. To get around this, he allegedly submitted a release form to Vampire Weekend, signed by "Kirsten Johnson." (if California had a "lack of creativity" cause of action, choosing "Johnson" here would probably be actionable). In the event that Brody actually did submit this release along with an image to which he didn't have the rights, this would be a pretty clear-cut case of misappropriation of identity. The complaint hooks in Vampire Weekend by alleging that the band had a "non-delegable duty to prevent or cure...the behavior" (basically, VW had an obligation to make sure the signed release was authentic/legitimate) and that "the Defendants... behaved in such a fashion that there existed a unity of ownership and identity amongst them" (basically, by retaining Brody to find/submit the photograph, Vampire Weekend became liable for any wrongdoing he might commit in that process).

Knowing very little about either California tort law or the facts of this case in general, I'll abstain from commenting on the suit's merits. That said, the complaint seeks two million dollars in damages under the theory that Contra netted that additional amount profits, as a result of Kirsten's face on the cover, than it would have with a picture of a chandelier or Cape Cod or whatever. That's probably a bit optimistic. But who knows? One thing I do know is that this is shaping up to potentially be the indie rock litigation of the year. We shall see...


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THE VAMPY WEEKS LAWSUIT: A Brief Legal Analysis