Whisper Wear, Inc. is a breast pump manufacturer. Whisper Wear hired James Chatwin to obtain photographs of a model for use in its marketing campaign. The breast pump manufacturer instructed Chatwin to hire a model who would not seek usage fees, assumed Chatwin would take care of the necessary releases, and assumed it would get “full, exclusive, unrestrained use” of the photographs it purchased. Chatwin contacted Arlene Wilson Management “AWM”, a model and talent agency. AWM provided Tiffany Morgan, a professional model. On the day of the photo shoot, Morgan brought a voucher with her. A voucher is a contract, release and invoice signed by the model and the client. Chatwin and Morgan signed the voucher, and Morgan signed a separate general release given to her by Chatwin. The voucher stated that Chatwin would pay $100 for the photographs of Morgan. It specified that the use of the photographs for billboards, national advertising, the internet, and a few other areas had to be pre-negotiated with AWM. The voucher stated in capital letters as follows: THIS RELEASE TAKES PRECEDENCE OVER ANY OTHER RELEASE SIGNED AT THE TIME OF THE JOB WITH THE EXCEPTION OF CONTRACTS AND AGENCY RELEASES THAT CONTAIN ONLY THE SAME INFORMATION HEREIN. The separate release signed by Morgan gave Chatwin “the irrevocable right to use Morgan’s name or any fictional name, picture, portrait, or photograph in all forms and in all media and in all manners . . . for advertising, trade, promotion, exhibition, or any other lawful purposes.” The release further provided: “I agree that Chatwin owns the copyright in these photographs and I hereby waive any claims I may have based on any usage of the photographs . . . including but not limited to claims for either invasion of privacy or libel.” Whisper Wear subsequently paid Chatwin for the photographs and was under the impression that it had purchased the right to use the photographs in its marketing. However, it is undisputed that Whisper Wear used the photographs in a manner that wasn’t authorized under the voucher signed by Chatwin and Morgan.
On November 25, 2002, Morgan, through AWM, contacted Chatwin regarding improper use of the photographs taken on November 14, 2002. According to AWM, Chatwin informed the company that the photographs would not be used by Whisper Wear or any other client. He told AWM that the pictures would be destroyed and Whisper Wear would be hiring another model for the photographs. Chatwin contacted Whisper Wear, but told the company not to worry about the problem.
