Haunting image: Fairfielder sues when old photo resurfaces on Vampire CD cover
Published 2:58 pm, Saturday, July 31, 2010
Ann Kirsten Kennis, who modeled in the 1980s and '90s, now lives a quiet life in Fairfield with her husband and daughter.
Kennis was, therefore, more than a little surprised to discover earlier this year that a nearly 30-year-old photo of her is featured on the cover of the CD, "Contra," by the band, Vampire Weekend. And Vampire Weekend isn't exactly a local band. The recently released "Contra" debuted at No. 1 on the Billboard 200 chart.
In reaction, Kennis has filed a $2 million lawsuit against XL Recordings (the band's record label), Vampire Weekend Inc. (an operating entity for the band), as well as photographer Tom Brody, who submitted a photographic release to Vampire Weekend Inc. allegedly signed by the doe-eyed model in the photo, wearing a short-sleeve yellow Polo shirt.
Kennis' lawyer, Westport-based Alan Neigher, claims in the lawsuit, among other things, use of her photo is a misappropriation of identity, unjust enrichment and demand for accounting.
Kennis' 13-year-old daughter saw an ad for the CD while browsing the Barnes and Noble website.
Seeing the photo of her younger self with a full head of hair "was kind of shocking," said Kennis, who had recently undergone chemotherapy.
"I would say it's a compliment, but it's a little disturbing also."
She went on to say that friends have spotted the image on posters and billboards as far away as London, Finland and Montreal.
To add insult to injury, in addition to the alleged misuse of the photo, Kennis said it isn't one of her better shots since it depicts her with a vacant look.
"It's like someone called my name and I turned."
Even so, some don't think it's as bad as Kennis thinks.
In fact, one of her nephews, a sophomore at Columbia University in New York City, said members of his tennis team were talking about the "hot" girl on the Vampire Weekend album cover. He had not seen the cover at the time the discussion was taking place sunsequently told his friends, "she's my aunt."
Brody contends he took the photo, but Kennis claims she never met Brody. In an article that appeared on Yahoo's homepage last week, Neigher was quoted as saying the photo was taken by Kennis' mother, who was a "chronic Polaroid snapshot-taker," and suggested that she sold or gave away the photo among a batch of other pictures.
However, in an interview with the Fairfield Citizen on Friday, Neigher said that he was misquoted.
"We don't know who took the photo," the lawyer said. Neigher added that even if California-based Brody took the photograph, "He had no right to use it in a commercial way."
But the photo's use on the CD cover isn't the only issue. Neigher said Vampire Weekend also used a large photo of Kennis as a backdrop for a series of concerts preceding the album's release.
"Based on last reports," Neigher stated in his July 15 lawsuit, "the album has sold over one million units worldwide.
He said prominently featuring his client's image at concerts, ahead of the album's release, "affects what the commercialization is worth."
The lawsuit contends that since the album's release, the photo of Kennis (taken sometime around 1983) has been displayed hundreds of millions of times on the Internet, and throughout the print and electronic media in support of the effort to promote, advertise and sell the CD. Neigher added that Kennis' photo was a "substantial factor in generating recognition and buzz for the `Contra' album, thus increasing sales and profits directly benefiting each defendant to (her) detriment."
"It's just not right they're using it everywhere," Kennis said.
Neigher's suit seeks at least $2 million in damages, but notes the defendants have been unjustly enriched in an amount that cannot be precisely determined. As a result, Neigher is seeking a court-ordered accounting of the defendants' financial records as they relate to the "unauthorized use" of his client's photograph.
While Kennis claims she never met Brody, the photographer, he told the Fairfield Citizen:
"I took the photo during a casting session at a commercial production company in New York City in the summer of 1983, and this fact is easily proven with irrefutable documentary evidence as well as witnesses who were present," he said. "By her absurd claim that her mother took the photo, Ms. Kennis has attempted to appropriate my copyright as the photographer, and has slandered and defamed me which I don't take lightly. My attorneys will respond in due course."
Kennis told the Fairfield Citizen it's not likely a modeling Polaroid because a hinge of a door can be seen behind her.
Neigher said that Kennis was a "highly professional and well-placed model," who was "listed with the most prestigious modeling agencies."
"She did clothing, cosmetics, jewelry. It's highly unlikely a Polaroid would have been taken of her at that time," he said.
Brody said the lawsuit's claim the photo isn't a modeling photo, but was taken by Kennis' mother, is blatantly false.
"I'd suggest that her prestigious modeling career may not have been as prestigious or extensive as she claims if she can't identify a casting Polaroid, hundreds and hundreds of which were taken every day in the pre-digital era," said Brody. "I've even read comments online where people say, `It looks just like a casting Polaroid.' "
"She's not angry," Neigher said of his client's reaction to use of her photo on the CD. "This is just business. It's a question of what's right."
While Brody insisted that he took the photograph, a copy of the photographic release he submitted to Vampire Recordings Inc. reveals an agreement with a young woman whose name is spelled differently in two places. At the top of the agreement it's "Kirsten Johnsen" and at the end of the agreement, just below a signature, the name is spelled "Kirsten Johnson." The July 2009 agreement, allegedly signed by Kirsten Johnsen/Johnson, states, "In consideration of the payment by us to you of the sum of one U.S. dollar, you irrevocably and unconditionally give to us all consents required pursuant to the laws of any country of the world," to, among other things, "make and otherwise produce the photograph taken of you and which is to be utilized on the cover of the forthcoming studio album by the recording artists professionally known as Vampire Weekend ..."
Neigher's lawsuit calls the agreement a "sham release" and alleges Brody was paid $5,000 for the photograph.
Brody chose not to answer any questions from the Fairfield Citizen regarding the photographic release, such as the differently spelled names and why the model would be satisfied with a $1 payment.
"My attorneys will respond to the suit and Ms. Kennis' slander of me in due course," he said. "I've made the statement regarding the origin of the photo only because of her claims in the media, but we're not going to defend the suit in the press."
Menawhile, Kennis can't seem to get away from herself. She recently visited her sister in New York City, and soon after she parked her car on Columbus Avenue, she looked up and saw a large image of her younger self on scaffolding.
"It's very surreal," she said.