IMG model Yuliana Bondar recently filed suit in the United States District Court for the Southern District of New York against LASplash Cosmetics, alleging, inter alia, that an image of her was featured without her consent in an ad campaign by the company. (Links to the Complaint and Exhibits are provided at end of this post).
Bondar is a well-known model signed to IMG Models, an agency that has also represented top models Heidi Klum, Gisele Bündchen and Tyra Banks. She has walked the runway for Anne Klein, BCBG Max Azria, Tracy Reese, Marchesa, and Tory Burch, appeared in high-end catalogs for Bloomingdales, Bergdorf Goodman, and Saks Fifth Avenue, and has been featured in French Vogue, Elle, and Marie Claire. LASplash Cosmetics designs and manufactures cosmetics, sold in over thirty countries. The complaint states that LASplash advertises their products in publications Seventeen, Teen, Nylon, In Style, OK, and American Cheerleader – a far cry from the publications Bondar has been featured in.
Bondar’s complaint alleges that New York-based photographer and defendant David Byun contacted Major Models, Bondar’s then agency, to have her appear for a photo shoot at George Brown Studio in New York. Bondar was never paid for the shoot, nor did she sign a release in connection with it. She claims that, “neither she nor her management team would have agreed for her to appear as “the face” of LASplash,” based on the high caliber of designers she has worked with in the past. The complaint further states that the images in the LASplash campaign were used without her permission, authorization, or written release. Bondar believes that the undisclosed and unauthorized use of her image damaged her career and inhibits her from working with cosmetics campaigns that may require exclusivity in the future. She is claiming unfair competition under the Trademark Act of 1946 (the Lanham Act), copyright infringement under the Copyright Act of 1976, unfair competition under the common law of the State of New York, and a violation of her rights under sections 50 and 51 of the New York Civil Rights Law.
Bondar’s fear about LASplash’s advertisements negatively affecting the possibility of being offered future cosmetics campaigns does seem to be warranted, as these contracts typically include exclusivity clauses. Generally, an exclusive agreement clause prevents a party to the contract from entering a similar contract with a third party. If Bondar is seen as the “face” of LASplash, her ability to obtain a lucrative exclusive contract with another beauty brand could be seriously jeopardized. She is seeking damages for the “unauthorized use” of her image because she is claiming that the ad is already hurting her career.
The complaint specifically states that these cosmetics campaigns, “are the landmark of a models career and are the most lucrative of all campaigns, as they result in the increased value of a models image.” New York Magazine’s “What’s the Ultimate Job a Model Can Book These Days?” November story by James Lim supports this argument. Lim asks some of the most influential players in the modeling world what they believe to be the most desirous opportunities to be, and the overwhelming response was cosmetics contracts. Chris Gay, the President of Marilyn Agency, answered, “Cosmetics contracts are always considered the crown jewel of a model’s career.” Top model Coco Rocha said, “Any perfume and cosmetics contract, of course.” And model Crystal Renn revealed that, “The coveted cosmetics contract is always the Holy Grail. It also offers the opportunity to work on representing a brand in a higher, more meaningful manner.”
Nearly all models are vying for a cosmetics campaign offer, so a situation like the one that Bondar has found herself in is certainly worrisome. With LASplash advertisements out there, Yuliana Bondar’s chances of becoming the “face” of another beauty brand – and reaping the benefits of such a contract – are slim.
FashionLawCenter readers who are hungry for all the information they can get, click on both Complaint and on Exhibits.
For another, lighter, look at this story, refer to CosmeticsDesign.com.
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Yuliana Bondar and the LASplash multi-million dollar lawsuit
It is not of uncommon occurrence that a cosmetic company lands itself in trouble over the misuse of a model. Of recently, Ukranian model Yuliana Bondar claimed that photographer David Byun ‘secretly stole her image’ without her consent to a little known cosmetic brand called LASplash. She even argues that she was made no payment and had no clue that she was becoming the face of a company she hardly knew. Having modeled for renowned companies like Vera Wang, Marc Jacobs and Anne Klein, Yuliana feels being associated with a company like LASplash would destroy her career. (McDougall, Andrew) In addition, once a model becomes the face of a cosmetic brand, she hardly has any chance of scoring another big cosmetic project. Yuliana is claiming unfair competition under the Trademark Act of 1946 (the Lanham Act), copyright infringement under the Copyright Act of 1976, unfair competition under the common law of the State of New York, and a violation of her rights under sections 50 and 51 of the New York Civil Rights Law. (Simmerson, Alexandra) Despite the multi-million dollar lawsuit, David maintains ‘everything was legal’ in respect to the photograph. (UK National the Daily Mail)
In my opinion, the happening is sufficient to wreck Yuliana’s career. If David maintains that ‘everything was legal’, he would be having all the legal paperwork including the contract with Yuliana Bondar. If all the required documentation is not present, it clearly proves the unauthorized usage of Yuliana’s photograph. A model at the peak of the career would seldom allow she to be the face of a company as minor as LASplash. Having walked the ramp for distinguished designers like BGBG Max Azria and Tory Burch, and having shot high-profile editorial and campaign work, why would Yuliana in her right mind want to be linked with a mediocre company like LASplash? (Abraham, Tamara) The case seems pretty simple to me. A cosmetic brand uses a model’s face to get in the limelight. Yuliana would know that getting in the newspaper for controversies like this would only making her career suffer. Nevertheless, she is still fighting for justice. This only proves that something did go terribly wrong and it is not some mere miscommunication between Yuliana and David.
Works Cited
McDougall, Andrew. “Breaking News on Cosmetics Formulation & Packaging
in North AmericaEU Edition.” CosmeticsDesign.com USA. 28 Feb. 2012. Web. 01 June 2012. .
Simmerson, Alexandra. “Fashion Law Center.” Model Sues Over Alleged Unauthorized
Use of Her Image. 06 Mar. 2012. Web. 01 June 2012. .
Abraham, Tamara. “Top Model Files Lawsuit for $25m after ‘unauthorised Photo’ Was
Used in Ad for Little-known Beauty Brand.” Mail Online. 27 Feb. 2012. Web. 01 June 2012. .
Lawsuits regarding intellectual property are becoming more popular. Internet and other digital technologies made images, private information accessible for people who sometimes use them in illegitimate way and “make” them of their own. Individuals have rights for protection against unauthorized use of their information for commercial purposes .The case with Yiliana Bandar shows that models out of all other professions have a minimum protection. This particular case is touches a common issue in intellectual property practice: who is the owner of images the photographer captured, model or the photographer? Under U.S Law the photographer who created the work, image is the owner. Even thou he is the owner of negative or photos, it doesn’t automatically give him permission to use them or publish. In order for him to be able to sell photos or use in commercial purposes, he should get a Model Release form. This document should be signed by a model (in this case by Yuliana Bondar) granting permission to publish the photograph. This kind of form usually provides compensation for the model. All the legal obligations need to be settled down before the photo shoot. After signing a Model Release form, the photographer automatically becomes the owner and can sell images to gain profit. He has also rights to alter them the way he thinks would be more profitable. Very often those pictures end up on the cover of magazines or sometimes on the cover of an adult movie ad. This part can be very tricky. In my opinion, Model Release form should give an option to a model whether she wants her pictures to be featured on the cover of an adult movie or not. As for this case, the accused photographer David Byun could win the case if he will present a Model Release form to the Court. If he will fail to do so, it could damage his career together with the cosmetic brand LASplash.
Copyright laws are extremely clear-cut under the Copyright Act of 1976. As explained in Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys, a Copyright is a tool in protecting designs and other various forms of artistic expression. The Copyright umbrella covers many aspects including but not limited to fabric prints, jewelry, websites, handbags, accessories, as well as photographs. Yuliana Bondar is claiming that LASplash Cosmetics has completely disregarded this concrete and strictly abided by law. In her case, when it comes to celebrities, models, politicians, etc. their photos and/or names may not be used unless the company has been given written permission or a license to use them. The use of her face without permission in their ad campaign is illegal. With this being said, I honestly wonder why a smaller company like LASplash would knowingly take such a big risk in which they could potentially loose a lot of money as well as their reputation within the industry. Is it due to inexperience? Or just complete negligence?
With the information at hand I personally can draw the conclusion that the odds are in favor for LASplash being found at fault in this case. If the use of Bondar’s photographs was indeed legal, than there would have been no issue in producing a signed Model Release Form, and this case would have been resolved before being brought to court. I can see how Bondar’s claim that the illegal use of her face in LASplash’s ad campaign has damaged her professional career is valid. As a model that has built her portfolio with high end and well respected names in the fashion and cosmetics industry her reputation can be diminished if her name and face is so strongly connected to a company of LASplash’s caliber. This, alongside the fact that the illegal use of her photo as the face of the company’s new campaign prevents and makes her a less preferred candidate for a reputable company that requires exclusivity within the cosmetics modeling industry. Honestly, I would be very surprised if LASplash wasn’t held accountable for their actions.
LASplash Cosmetics & David Byun are going to loose this case on copyright violations. Copyright is one of the most straight forward and clear laws on the books. The moment you violate an individuals copyright & civil rights by publishing images in advertising without a signed release your guilty.
This looks like a slam dunk for Ms. Bondar, she obviously did not sign a release and was more than likely mislead into the photoshoot by an obvious miscommuncation (more than likely intentional) on Byun’s part to her agency. I cannot even imagine being a fashion photographer and crossing an agency like IMG Models or any model agency, this looks like a career ending move on the part of Byun.
On to LASplash, to even imagine a company would publish images in 30 countries without a release seems absolutely insane. The fact that you can still find the images in department stores today in NYC (June 2012) approaching 3 years after the shoot is blatant negligence. I can only hope for the defendants in this case that their settlement offer is amazing, because the potential for exemplary damages could exceed the lawsuit amount.
I have been watching this case carefully as a third year law student at NYU and see that Judge Shira A. Scheindlin is presiding over the case, she is one the most experienced expert in copyright law in the entire federal court system. Basically, this the worst case scenario for the defendants in this case, since I am curtain that this would not be going to court if there was a signed model release by Ms. Bondar.
I can only imagine that LASplash & Byun are going to try to settle this case, I cannot see a win scenario for the defendants given what I have read.
!!BEWARE!!! WORLDWIDE BLACKLISTED PHOTOGRAPHER
David Byun exercises improper business schemes at the expense of models, agencies, companies, colleagues and collaborators. Many of the people reading this that have worked with David Byun will soon realize they too have been deceived.
After hearing about the Federal lawsuit concerning David Byun aka David Byun Creative Inc. , I found it sensible to write this. I have known David Byun for years and can tell you from first hand experience that Byun is not a trustworthy person nor can I even imagine the treachery he has peddled to his legal representatives to assist him on this case. (I hope they get paid before they put all the work in) I say this from having worked personally with Byun, and having been a casualty of his duplicitous way of working. I have been in the fashion industry for decades as an agent, art buyer, legal consultant, and executive. I am considered by thousands of my colleagues as an expert in the fashion business because of my long history of booking many thousands of commercial jobs. Byun lacks a photographic agent in NYC because he systematically cheats his agents, does bookings behind the agencies back and doesn’t pay the commissions promised. He is a “nobody” that has rested on Korean magazines to make his phony manifestation a feasible way of appealing small startup fashion companies and even big ones into commissions.
I can unmistakably remember voluminous instances where Byun has done exactly what is alleged in the lawsuit brought against him in Federal Court. Specifically, deceiving models and agents about photoshoots. I have far reaching and a considerable amount of friends at model agencies and in the fashion industry worldwide; one which has found another instance with striking similarity and deception; specifically, to the intentions of how the images of the model would be used based on emails from Byun and how they were used in actuality.
Another potential severe case is pending from a top agency & top model. The foundation is being formed at this very moment.
What I know and what friends at agencies have come to consensus and apprehension about Byun’s deceitful working pattern is this:
Byun articulates usually via email that he is shooting “small jobs”, tests, specs, for a friend assignments and for low rates, promises beautiful photos and non advertisement usage, usually lookbooks, line sheets, and trade images knowing clearly that the intention of the client is to use the images for commercial consumer purposes. Then images are used in websites, advertisements, ads or anything he has pledged to the client, Byun purposefully leaves out in attempt to purge his wrongdoing usage on contracts with these small companies, or doesn’t do them at all. Since Byun’s clients are usually minor or unknown, the images are never detected as illegal usage. Byun takes advantage of the fact that some novice clients do not grasp the working and procedural regulations required to use images of models for consumer usage, such as model releases, contracts etc. When Byun offers the service to his clients, he does his best to provide the entire creative team, hair, makeup, retouching, videos and models, in essence the entire production; which is totally fine, the issue is Byun lies about how the images are going to be used to everyone on the team including the model agencies (Byun communicates to the clients he has “connections” at the agencies, the reality is this is precisely where the deception starts. see *) for the sole purpose to profit from the uninformed team. These actions are the “soul” of fraud.
· Model agencies of repute & prestige will not give experienced talent to a low paying company for consumer usage, these jobs could potential damage the models future. Byun sets up the agency to a lower rate so that he profits all the money possible from the client using the tactic explained here:
A regular usage of consumer speech in advertisement for a medium level model with 1 year usage for a small clothing company would cost the client between. 5-10k for the date rate. A top model 10k-50k and a supermodel up to a millions of dollars depending on usage/time/exposure and client.
In the usual Byun circumstance, his client total budget base is around 10k-20k for the entire production at best, so Byun fraudulently represents what the job is for to the agencies, and make statements like, the job is a small company, for: promo / a friend / test/ spec/ etc… These statements disarms the agencies and Byun gets the jobs categorized into non consumer usage/ non web/editorial/spec rates/trial/promo/etc… This allows the booking of a mid level model for 500-1500 dollars, all based on trust.
Now in respect to an international makeup campaign in various countries; because of the nature of the exclusivity required by high end cosmetic companies contracts rates can range from 200k-to multi millions of dollars even for relatively unknown models, especially over a three year period or if the images are used in national magazine advertisements with point of purchase scenarios such as in a retail stores and webpages worldwide. This is where the deception and treachery of Byun is so apparent in this particular case. Byun in essence has prevented a model for the last three years from being able to procure a cosmetic contract, basically irreparably damaging her career.
The larger more reputable agencies and even smaller ones have fixed onto this deceitful pattern, and will never work with Byun on commercial jobs with reputable models, moving forward. A few agents in consensus with models have suggested playing imprudent to the deceit and sue Byun when images are used illegally, Byun is well on the way to becoming victim to his own deception.
Now, moving onto the way Byun has survived in business, Byun (Sung Byun) is a native Korean and capitalized on the expanding commercial viability of magazines such as Korean W and occasionally Korean Vogue. These magazines have given Byun a bargaining chip with the reputable agencies for the top talent, he has obtained the models usually paid 150.00-1500.00 dollars for a cover/editorial based on the magazine reputation, not his own. This is the going rate for an editorial, as everyone knows in the fashion industry. You will never see Byun cross over to the American, French, Italian versions of these magazines, for the sharp fact that these magazines would never work with him because he lacks the proficiency of a Mert & Marcus, Mario Testino, or Steven Meisel, not only technically but more importantly as a human being. Also key agents at the top agencies in the world will have nothing to do with Byun working with top girls, especially with what has come to light.
That being said, Byun has created a large magnitude of one time disgruntled clients like, Nieman Marcus, Saks, and many more, including myself. Byun also once worked with Naomi Campbell for Harper’s Spain in 2004, then in exchange for consideration in future shoots gave her images to a “not so good” (as he stated) magazine in New York City. This pretty much ended his relationship with IMG once Naomi was represented there a few years later.
As time would have it, the Korean magazines that Byun bases his fictional “top” photographer prestige on, have also moved clearly in a different direction. The magazine editors have found other Korean photographers that are just nicer and more talented to work with. For this specific reason W Korea magazine did not work with Byun on the last anniversary issue. Its more then likely that his continued work with these magazines will also terminate rapidly given the circumstances of this case. Clients just don’t like working with Byun, he has no ability to take criticism, is not open to a team work environment and systematically tries to eliminate anybody from the photoshoot that would be able to see his pedestrian skills. Byun has been falling in a descending spiral because the years of miserable and deceiving business tactics, and alienating everyone that comes in contact with him for an amount of time. I am sure in his mind, the photography industry is a dying business; but in fact it’s an emergent and vastly developing industry that he is being left out of.
Moving on to this case, When I came across the complaint I instantaneously knew he was guilty of the charges. I am confident Byun did not tell the plaintiff what the images were for ; nor the agency, as he states in his declaration. (this is proved below see email **) He more than likely twisted and omitted emails that he claims are “real” in his declaration. A huge incongruity is very evident in the call sheet and receipt of payment by Major Model Management. The documents (call sheet, receipt) make no reference to the cosmetic company or usage agreement, on the contrary the call sheet appears like the model had been sent to a “test” product shoot. Furthermore, Katia Sherman president of Major Model Management is a absolute professional that supervises all cosmetic agreements, her 20+ years in the industry would never allow this shoot to have happened, she takes pride and safe guards all her models from this sort of trickery, no single agent could confirm a international cosmetic campaign without Sherman’s input at Major Model Management. All the agencies including Major Model Management have a fiduciary duty to the model to state what the shoot is for in writing, and to put this into the callsheet and clearly into the receipt of payment, in Byun’s case this completely absent. There is no way the agency cheated the model, it makes no sense they would be cheating themselves.
The plaintiff claims in the complaint that she was not paid for the international makeup campaign. This claim is valid she was paid for a product test shoot, and the client was David Byun Creative Inc. She did not sign an agreement or model release with Byun and the supposed emails Byun claims to have, are more than likely stringed together emails, (***see footnote) and lack the standards of electronic discovery. The 1500.00 rate is what an agency would charge for a test shoot of products, with no commercial usage. I also noticed that Byun claims to have paid the plaintiff 150.00 for a previous shoot in Sept of 2009, this rate is considered a symbolic rate, agencies do with photographers for small non consumer, editorials, lighttests, linesheets, & lookbooks for internal usage of a designers collection to present at market week in or internal trade. (its important to remember in 2009, some agencies that had not caught on to Byun and wanted to help) These shoots are not to be used in consumer speech. I even have a copy of the agreement supplied by yet another disgruntled Byun employee in reference to this exact shoot, the agreement clearly doesn’t state anything about web usage, ecommerce or a usage period. Even mentioning it in Byun’s declaration especially since I can see that the client is still using the images on her webpage to date may have inadvertently opened a can of worms. Complicating this issue the images have been used in ecommerce, a form of consumer usage, which I am sure the plaintiff was not paid for. Furthermore, neither the agency nor the model signed agreements in regards to commercial speech. Usage of a models likeness on a webpage for products available to the general public for purchase is: commercial speech. Generally, Byun’s “C” level clients cannot afford this on 10k budgets; while still making Byun a profit, so he just lets it happen. I have mountains of examples.
Given the nature of Byun’s well documented atrocious business tactics, his untruthful statements to everyone that he works with, his perjurious declaration and growingly frantic efforts to swindle talent, agents and artists and more than likely his legal representatives – the persona of Byun’s repulsive, cruel and premeditated actions and fraudulent representations will come to light in the federal court. His skilled career of unprincipled bad conduct has irreversibly ended all future chances of success in the fashion industry.
I truly don’t think any respectable model agency; artist agency or fashion/beauty companies are going to want to work with Byun, Nor should they just due to the fiduciary duty to their models, artists and companies. Knowledgeably working with a thief would in essence make one culpable should future litigations arise.
Frankly, I feel so bad for his legal representatives, hopefully Byun made fraudulent statements to them while procuring services and they can get out of the case, I doubt they will get paid by Byun. Defending him will be arduous & time consuming venture for any lawfirm.
Now to the provable factual stuff:
Enclosed below (**Email)is an email between Byun, and Lucy Fox a friend and person that later worked for Marie Claire Magazine, this email is in reference to the LASplash job, shot one week later (the pending Federal case) and represents a small sample of the fraudulent activities involved in this case, this email was given to me along with thousands more on a harddrive from a former Byun employee in 2010, whom Byun also cheated. The important significance of these emails being in hardrive form on a mail client based program archive is that they contain all the raw headers, making them provable as electronic discovery showing they were delivered and sent through Byun’s IP address. Unfortunately, I only have from 2010 back to 2005, about 60,000 emails.
** footnote: I found it incredibly interesting that the supposed emails that happen in early Jan of 2010 between Byun and Major do not exist on this original archive in an original email or in there entirety. It looks as if strings were added, omitted, deleted in the declaration emails.
**EMAIL
From: “pictures@davidbyun.com”
Subject: LA
Date: January 2, 2010 3:28:57 PM EST
To: lucy fox
Reply-To: “pictures@davidbyun.com” pictures@davidbyun.com
hi lucy
another reason why I think having them at the set is a bit tricky is that
I’m inviting some of the best talents in new york as more of a personal favor
with really low rate.
if there is a client then they would think that it’s a real job and that will create a very strange energy and also possibly ruin my relationship with the talent even after a long explanation.
lets try not to have them here in nyc
david byun
http://www.davidbyun.com
001 917 407 5513
________________________________________________________________________________________________
This is just one email, but I have thousands of provable (to the rigorous standards of electronic discovery, unlike Byun’s patched and more than likely fraudulent email strings)emails that confirm a horrific depiction of Byun fraudulent business tactics, in particular him lying continually to clients & agencies to secure a job, at the expense of others.
This example is just the tip of an extremely enormous iceberg. Once the documented proof is out, Byun’s believability, credibility and business will be compromised. Byun calculated efforts to disenfranchise models, agencies, magazines and companies are soon to become public knowledge and perpetuate a never-ending onslaught of new lawsuits. This is purely because it is not the only instance he has done this to a model.
Most seriously, Byun has also conned the government of the United States of America, in regards to his financial earnings, not declaring his income appropriately in his tax returns. I have hundreds of documented transactions that are not declared in taxes over 5 years, his deceit and unquenchable greed has even perpetuated to cheat the government that has offered him the opportunity to become a citizen of this country and do business here.
So that it is clear, I plan to go public with all this information and make myself accessible to the plaintiff in this case and cases in the immediate future. I have absolutely no fear of retaliations from Byun, this is not a defamation case or libel, all the facts presented are true, Byun will never be able to prove otherwise. This statement will go out to nearly 30,000 contacts through out the world of fashion, beauty, artistic management and model management industry in early September when everyone returns from summer holiday.
I am not an attorney or legal person, but its my opinion that this model and her representives were tricked. I have seen this model in magazines before and could only assume that if she was on the packaging of a cosmetic product she endorces that product. The fact that she is on this crappy brands products couldnt possible make her attactive to a future major cosmetic brands, its like a Playboy model trying to get in Vogue.
I am really confident that the court will see that something really fishy is going on here with the defendants claims they did everything legally, I doubt they will be able to produce a model release, and will loose this case. I am sure they will say it was verbal or produce some random fake emails and loose.
I went to a couple of stores here in NYC to see if I could still find the displays, low and behold, I found them at the first Duane Reade I walked into right next to Revlon. I hope this model gets millions, it will teach hack compaines and photographers not to cheat people.
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It appears as though Juliana Bondar has won her case. The judge saw fit the federal claim and warrented it. Some of the other more insignificant claims (more than likely as backup if the Lanham Act charge had not made it) were dissmissed. The companies are in settlement negociations and Ms. Bondar will get her justice in the form of good old greenbacks. I would imagine that these defendants will be abolished from the entire fashion industry.
Bondar won her case, although the money details appear to be sealed, the rumor is that she cleaned them out. Good for her, I hope this opens the door for all the other models that have been wrongfully robbed of their face, to promote some cheap brand without even knowing it. Justice is much deserved in this case as these defendants trampled on her rights. I hope she got millions!