Vampire Weekend, Former Model Close in on Tod Brody

Photographer Tod Brody is under pressure to answer for the use of this album cover photo.

A federal court judge in California has turned up the heat on Tod Brody, the elusive photographer at the center of a lawsuit over an image on the cover of Vampire Weekend’s 2009 2010 “Contra” album.

Brody allegedly licensed a Polaroid image of former model Ann Kirsten Kennis to Vampire Weekend and its record label for use on the album cover and in some concert promotions. Kennis sued the band, the label and Brody last July, alleging unauthorized use of her likeness. In response, Vampire Weekend and its record label counter-sued Brody in August. Any liability is his, the band says in that counter-claim, because Brody warranted that he had all the necessary rights to license the image.

But nobody has been able to find Brody in order to serve him with papers stating the claims against him. So the court has approved a joint request from Kennis, Vampire Weekend, and the band’s record label to serve papers on Brody via e-mail and the U.S. mail. (Normally, court papers have to be served in person.) The court approved the alternate delivery on November 18. Court records show that a summons was issued to Brody on November 24. The court says it will consider Brody in receipt of the papers 10 days from that date.

That sets Brody up for a default judgment if he doesn’t respond to the claims against him by early 2011.

According to the original claim filed last summer by Kennis, Brody charged Vampire Weekend a license fee of $5,000 for the image of Kennis. It is unclear how he obtained the image, which was shot more than 25 years ago. But Vampire Weekend says Brody had claimed in the license agreement that he shot the image.

Kennis, meanwhile, has said that the model release Brody presented to Vampire Weekend was forged. The band’s record label says it “reasonably” relied upon the signed release that Brody provided.

The band also says that Brody claimed that he had “good title and full right and authority” to license the image. Brody “misrepresented certain facts and breached contracts,” Vampire Weekend says in its claim against him. “Responsibility, if any, for damages claimed by [Kennis] rests entirely on Brody.”

Brody referred questions from PDN to his lawyer. That lawyer has so far not responded to a request yesterday afternoon for comment.

22 Responses to “Vampire Weekend, Former Model Close in on Tod Brody”

  1. Vampire Weekend Contra Photographer Subpoenaed - Stereogum Says:

    [...] in hearing from him directly. But, according to The Village Voice (who quote a post on on the Photo District News’s blog), no one can track Brody [...]

  2. laws! Says:

    Maybe he should take the numbers off his house; that way the mailman won’t be able to serve notice…
    And actually, notice does not normally have to be served in person, but rather is governed by Federal Rule of Civil Procedure #4(e)1-2
    Which provides a number of ways one can be served which satisfy the statutory requirement of service for federal court (there is also a Constitutional requirement). Don’t magazines have fact checkers anymore?

  3. Thanks for all my friends » Institutions recruit friends to predict the results of hot lead (Figure) Says:

    [...] PDN Pulse » Blog Archive » Vampire Weekend, Former Model Close in … [...]

  4. PS Says:

    Minot deteail, but ‘Contra’ was released in January this year (2010), not 2009 as stated

  5. Vampire Weekend Contra Photographer Subpoenaed « The Record Works Says:

    [...] in hearing from him directly. But, according to The Village Voice (who quote a post on on the Photo District News’s blog), no one can track Brody [...]

  6. MAC Says:

    Try his website..
    http://todbrodyphoto.com/

    He’s responded to the allegation directly.

  7. Michael Says:

    Just read the post on Mr. Brody’s website. He goes on and on about Polaroids and her mother but completely fails to discuss the only relevant point – did he have a model release?

  8. Katia Says:

    Your reporting is factually incorrect, and if you had made a simple phone call to the attorneys for Kennis, VW, and XL Records you wouldn’t be reporting this. Evidentally, Brody is hiding from no one.

    His lawyers contacted them all back in mid November, and are accepting service for Brody. it’s not being done in the manner you describe.

    Perhaps you might want to consider printing the truth before calling someone elusive and implying the fiction you’ve come up with. Otherwise someone might be serving you!

  9. Michael Cole Says:

    It sounds like the reporter was more interested in creating fiction and rumors rather than finding facts.

  10. Rose Says:

    I wouldn’t say whether or not there is a proper model release or not is the only relevant point. Kennis and her attorney made it not the only relevant point themselves by repeatedly claiming in every interview that the photo was taken by her mother. I’m sure Brody feels that’s an important issue to address, and he does so well on his website.

    Additionally, Kennis’ attorney is all over the place on the issue. In some interviews the mother took it. In some it was a family member. And then I’ve even read where he claims he was misquoted and says they have no idea who took it. I’d say they’ve made it pretty relevant!

  11. David Walker Says:

    David Walker responds:

    I’m not sure what motivates my detractors, but anyone who cares to check my reporting against court records is welcome to do so. In particular, please see the “joint motion for authorizing electronic service” filed on October 21, 2010 by attorneys for Kennis, Vampire Weekend, and the band’s record label. (CV 10-6087 VBF: Kennis v. Vampire Weekend, US District Court, Central District of California.) The joint motion states:

    “The Appearing Parties bring this Joint Motion for authorization to serve Brody by his e-mail address and his P.O. Box address pursuant to N.Y. C.P.L.R.
    308(5) and, alternatively, to serve Brody by publication pursuant to Cal. Code Civ. Proc. § 415.50(a), on the grounds that reasonably diligent efforts to serve Brody
    with process have been made, and service on Brody through conventional means is impracticable.”

    A memorandum filed with the joint motion spells out in detail the lengths attorneys for Kennis and the band went through to locate Brody and serve him with the papers that spell out the charges against him.

    The court record also includes an order issued by the judge on November 18, 2010, approving the joint motion for electronic service.

    Finally, as my story says, I contacted both Tod Brody and his attorney for comment before I published my story. I told Mr. Brody what the angle of my story was, and he declined to comment. Instead, he referred me to his attorney, who did not respond to my request for comment. If and when they contact me to offer their response or their version of the story, I will report it promptly, and with the integrity that PDN has always stood for.

    Sincerely,
    David Walker, PDN

  12. David Walker Says:

    Thanks to “PS” for the correction on the release date of the Contra album. DW

  13. Katia Says:

    Notwithstanding what you just posted, or the ruling of the court, your implication that Mr. Brody was trying to hide is incorrect and defamatory. And the fact is that counsel for Kennis, VW, and XL are not serving him by the method you report. Just because the judge approved the motion doesn’t mean that service is occurring in that manner, and indeed, it’s not. You made an incorrect assumption that it was, obviously without any fact checking. A simple call to the lawyers offices will bear that out. They are serving him through his counsel, who contacted them at Mr. Brody’s request and arranged to accept service.

    Additionally, there are no “charges” against anyone. This is a civil case. There is a civil summons and complaint. As a reporter, you should get your legal terminology correct.

    Additionally, according to an interview Mr. Brody did in the UK, at no time has he been in hiding! He’s done quite a bit of public work over the last few months for someone supposedly trying to duck a summons, and he’s represented by one of the major entertainment litigation firms in LA. Doesn’t sound like someone in hiding. Your opening reference to him as “the elusive photographer” doesn’t seem to be very accurate, but is certainly inflammatory. By your own admission he responded to you and referred you to his lawyers which is what any savvy person would do. He says in the interview that the “the lengths” (as you call them) opposing counsel went to to locate him didn’t include sending him a simple e-mail to ask if he’d accept service, despite the fact that they’d made many visits to his website. Had they taken that simple step, he’d have connected them to his attorneys as he did when he was informed of their motion to serve him by alternative means. The facts as they’ve actually transpired seem to confirm that. What you should be reporting is that Mr. Brody’s attorneys contacted the attorneys for Kennis, VW & XL weeks before you published this, and that he was actually hiding from no one!

  14. Julie Kim Says:

    Any reporter experienced at covering these types of cases should know that you can’t just go with information found on documents published by the court. Not now in the internet age, or in the past. You have to check and double check.

    If the previous comment is correct, and I have no reason to believe it’s not, you could have saved a lot of time and trouble by calling all the attorneys involved and asking if what you had found out was accurate. You say Mr. Brody referred you to his attorney. How long was that before you published? Ten minutes?

    Did you even bother to check with the lawyers who brought the motion before the court to see if they were serving by e-mail, or US mail or publication. I’ll bet the answer is no. Pretty irresponsible considering the statements you’ve made. Just because they couldn’t find Brody, doesn’t indicate he was hiding. His website has more recent photos taken in Europe than the US and says Copenhagen Paris New York right on the main page. Has it dawned on anyone that perhaps he lives over there? Maybe they were looking in the wrong country!

    If it turns out that Brody’s lawyers did indeed communicate with the other lawyers, and all is as the previous commenter says, I sincerely hope you suffer the consequences of irresponsible and lazy reporting. “The integrity PDN has always stood for” indeed! I hope you’re the next one to be served!

  15. J. Stuart Says:

    Even your title using the phrase “close in on” reveals your agenda as if he’s a fugitive. And now it turns out that was totally untrue and he was hiding from no one. You act as if he had a responsibility to contact the other side and say “Here I am!” Who would do that? But obviously when his attorneys told him about the motion before the court, he told them to contact the other side.

    I did a little checking of my own to see how hard it would be to find him. In just a few hours on the Internet, I found out that his Facebook and Twitter accounts list Paris as his location as do several other social networking type sites. Hmmm… Paris! What an odd place for a photographer to be! I was able to get in touch with several people who know him, and found out that he had lived in Copenhagen from 2006 thru the beginning of 2010 and before that he was in NYC. Then I was able to get an address for him and a mobile number. Then I called and spoke to him for a minute. He told me that he has responded to everyone who’s contacted him through his website and that includes Ms. Kennis’ attorney.

    If I could do all of this in a few hours time, I wonder what lengths anyone really went to to find and serve him. Seems to me that they’re either inept or untruthful. It’s a lot easier and less expensive to tell the court you’ve exhausted every method of trying to serve someone, than it is to actually locate them and serve them in France or Denmark. And as someone previously pointed out, obviously they didn’t exhaust every method of trying to find him. They had nothing to lose by sending him an e-mail, but they didn’t!

    The bottom line is that you owe an apology for publishing this article. You made a lot of statements and assumptions which aren’t true. And then you try to back them up with documents which do nothing but prove that a motion was filed and granted, but nothing else. If you have detractors, you deserve them. This is completely irresponsible and lazy journalism. You and PDN should be ashamed and as others have said, I hope you’re taken to task for it.

  16. Rob Says:

    If you are taken to task for it, watch out! He’s represented by one of the best litigation firms in LA. They’re sharks who specialize in defamation. Tiger Woods is also one of their clients!

  17. Photo Round-up | Morel Studio Support Says:

    [...] court, since he wasn’t able to be located. Read this rest of this complicated story over at PDN and always remember to get your model [...]

  18. Rob Says:

    Just read you’re going to get your day in court. Suits being filed against you, PDN and others for defamation and libel in Federal Court in LA! You reap what you sow!

  19. Mr. Shuffleupagus Says:

    I’m betting Kennis is telling the truth on this one.
    Regardless, this soap opera is the best thing to come out of Contra…

  20. Rob Says:

    Before you bet on Kennis telling the truth, I’d take a look at the recent UK interview with Brody. The evidence that he took the Polaroid and the witnesses who put Kennis at the casting session are pretty compelling. Her claims that it was taken by her mom and purchased at a “charity shop” are pretty absurd once you hear what should have been pretty obvious to everyone. And that infamous “forged release” turns out to have been created by Vampire Weekend’s London Solicitors, not by Brody. Let’s see them explain their way out of that!

  21. Mr. Shuffleupagus Says:

    @Rob:
    This just keeps getting better.
    I don’t know why but I’m fascinated by this whole thing.

  22. Mr. Shuffleupagus Says:

    (the more people who lie, the more fun it is for us)