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.