Nude model sues college magazine over photographs


© 2003 Student Press Law Center

June 19, 2003

ILLINOIS — A nude figure model has sued Columbia College in Chicago and its student-run magazine claiming her privacy was violated when she was photographed for an article without providing her consent.

Two photographs of the model posing for a life drawing class appeared in the Winter/Spring 2003 edition of ECHO magazine in conjunction with an article about nude modeling. One depicts her from behind at the waist down. The other photograph focuses on a student's drawing with the model pictured in the background slightly out of focus.

The model, identified in the lawsuit only as "Jane Doe," and the ECHO photojournalist, Brian Morowczynski, have starkly contrasting versions of their conversation in Professor Max King Cap's life drawing class. Doe claims that Morowczynski said he would not photograph her, while Morowczynski says that he explicitly asked if he could and she provided consent.

In the lawsuit, Doe said that she was posing nude for King Cap's class last fall when Morowczynski entered the classroom. She said he and King Cap approached her during a break, after she had clothed herself.

According to Charles Lee Mudd Jr., Doe's lawyer, Morowczynski asked if he could remain in the classroom to take photographs of the students, their drawings and the professor.

"She asked, 'You're not going to take photographs of me,' and it was confirmed by the photographer," Mudd said.

The lawsuit states that the classes in which Doe has modeled have been "closed classes," where only the professor and students registered for the class are present. Doe has modeled for Columbia College classes for more than eight years and has been a figure model for more than 10.

Doe said that she did give Morowczynski permission to stay in the classroom but not to take photographs of her.

According to the lawsuit, Doe said she did not know that photographs of her had been published in ECHO until she picked up a copy in April, after the issue had already been on stands for two months.

Fifteen thousand copies of ECHO magazine are distributed twice a year on the Columbia College campus and in the surrounding area, and it is published on the Internet.

"To her dismay and disbelief, Ms. Doe found herself portrayed nude in two prominent full-color, glossy photographs," according to the lawsuit.

She was further distressed that the article compared nude modeling to prostitution, her complaint says.

"While nude modeling is by no means related to the 'oldest profession,' it shares a few common attributes," the article reads. "One, practitioners must get naked for money. Two, they're been doing it for centuries."

Mudd, a privacy lawyer who teaches at John Marshall Law School in Chicago, said that he understands the constraints and limits that artists are under, but it was Morowczynski's responsibility to obtain Doe's written consent before publishing the nude photographs.

"If someone photographs an individual and they appear prominently in the photo, and the photographer intends to publish the photo, they best ought to have the consent of the subject," Mudd said. "Just as written journalists have a burden to ensure the accuracy of what they're reporting, so too should an obligation be put on photojournalists to obtain consent where consent is required."

Morowczynski gives a different version of the events, which led to Doe's suit. He said he contacted King Cap to ask if he could photograph a nude model for ECHO. When Morowczynski arrived at the class where Doe was modeling, he and King Cap approached Doe while she was already nude, and Morowczynski asked if he could photograph her, Morowczynski said.

"I explicitly expressed that I was there to photograph her. I never gave her the impression that I was there to photograph anyone but her," he said. "She gave me her verbal consent to photograph her ... When she made the verbal consent, Max [King Cap] was present and in hearing distance, along with about 15 students."

Morowczynski said that he then began to photograph Doe, starting from behind the model and working around toward her front side.

"I was probably as close as 10 feet to her at some point during the shoot," Morowczynski said. "I made no effort to conceal that I was photographing her."

Morowczynski said that he was in the classroom for about 30 minutes and then he thanked Doe and King Cap and left. He said he did not hear from Doe again until the lawsuit.

Morowczynski said that he is confident King Cap heard Doe's verbal agreement, but he is not sure whether the professor will back him up.

"I don't think it would really be necessary to gain written permission from Jane Doe to allow me to take the photos," Morowczynski said.

Doe is suing for the violation of her right to privacy, harmed reputation, loss of commercial gain, commercial loss, emotional distress and out-of-pocket expenses to cover the lawsuit.

The lawsuit, filed in the Cook County Circuit Court on June 4, names six defendants: Columbia College, ECHO magazine, Morowczynski, the student author of the article, Jamie Degroot, and the two advisers to the journalism course in which ECHO is produced, Sharon Bloyd-Peshkin and Lisa Jevens.

Professor King Cap was not named in the suit because Doe believes that King Cap relied on Morowczynski "misrepresentations," according to Mudd.

King Cap did not respond to an email asking for his reaction to the lawsuit.

Columbia College has not yet been served with the lawsuit, according to Micki Leventhall, a spokesperson for the school.

"We have not had an opportunity to review the lawsuit so we obviously can't comment," she said.

Columbia will have 60 days to respond to the lawsuit once it has been served, according to Mudd.

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