In June 2012, former model Louisa Raske and her husband walked into a CVS in Miami and were shocked to see a box of L’Oreal Feria brand hair color featuring Louisa’s face. Louisa, who had shot the advertisement in 1999, said her contract with L’Oreal had run out years before.
Concerned that L’Oreal was violating her contract and misusing her image, Raske contacted Next, her former modeling agency. According to Raske’s official complaint filed in November 2012 in the New York State Supreme Court, Next informed her that McCann-Erickson, the booking agency that had created the hair product advertisement, had in fact paid a usage fee to Next on Raske’s behalf. Raske alleges that Next never tried to contact her regarding the negotiations they had done on her behalf and never paid her for their usage. According to Raske’s complaint, Next claimed that they had tried to send her a check. After a back and forth with Next, Raske claims she contacted McCann-Erickson directly to obtain a statement on their image usage agreement with the agency. With these documents in hand, Raske says she eventually received two checks for a total of $39,505.03 from Next. When asked about these allegations, a public relations representative at Next responded, “We never comment on ongoing litigation.”
Raske’s case highlights an continuing problem in the modeling industry. Because of the transitory nature of the work and the complex relationship between models, who tend to be classified as independent contractors, and their agencies, there can often be a lack of accountability and transparency when it comes to the process of trying to enforce agreements.
After modeling from the age of 14, I left my rising career in 1994 at 17, no longer able to bear the culture of abuse and silence perpetuated by the unregulated atmosphere of the modeling industry. That was 20 years ago and little in the fashion industry has changed. Instead of acting as career advocates, as the management relationship is defined, in my experience, agencies use the fast-pace nature of the work and hazy contractual language to their advantage.
In Raske’s case, all claims except for one, unjust enrichment, were dismissed last October. According to her counsel, one of the reasons for this decision was that Raske’s complaint named agencies that she had never worked with. As stated in the complaint, Raske had filed her case “as a representative of all models who are, and have been, represented by New York modeling agencies over the course of at least the last ten years.”
After her case was dismissed, Raske recruited more models to join a new class action lawsuit. With model Alex Shanklin, 36, as the lead plaintiff, Shanklin v. Wilhelmina Models, Inc., et al, was filed by eight female and male models against several big banner modeling agencies.
“The lack of financial transparency has always been viewed as the ghost in the room and it knowingly and sometimes unknowingly affects every model in the industry.”
Shanklin has worked in the industry for over 12 years for companies like Ralph Lauren, Target, and J Crew. He alleges that his former agency, Wilhelmina, received usage fees for photos to be used in international venues, for which he was never compensated. Over the phone, Shanklin told The Daily Beast that friends called him from a mall in Canada excited at having seen his image. This was surprising to Shanklin, as he says he shot that photo many years before and claims he never consented to international rights use. He became suspicious and so began what he refers to as a “cat-and-mouse game” between him and his former agency. According to the complaint, Shanklin “did not receive payment for the continued use of his image.” Wilhelmina has not responded to requests for comment, but the agency’s counsel has moved to dismiss the case on the grounds that the class action complaint “fails to allege with any specificity any facts to support a breach-of-contract or unjust enrichment claim as against Wilhelmina.”
In the complaint, Shanklin also alleges that he found discrepancies in the income that his new agency, Q (misnamed in the Complaint as Que Management), claims they paid him in 2008. Shanklin alleges that Q reported to the IRS that Shanklin earned $35,040 more than his W2 form claims he received. He claims in his complaint that the agency never clarified the discrepancy nor did it pay Shanklin the $35,000. When asked for comment, a spokesperson for the agency said, “I didn’t know we were involved. I would like to make no quote.”
The defendants in the Shanklin case filed for a 30-day extension; they were given two weeks, and the next hearing date is set for May 12th.
These are not the first cases that pit models versus their agencies when it comes to compensation. In 2005, models sued their agencies in the case Fears v. Wilhelmina Model Agency, Inc. Among the allegations were complaints of price fixing and collusion regarding the setting and charging of commissions, as well as the failure to properly account for models’ payments. The case settled and part of the settlement included a consent decree that compelled the modeling agencies named to disclose all compensation received by them on all models’ bookings. The class action plaintiffs allege that the agencies ignored this order and have continued on with business as usual.
One of the complicating factors in the modeling industry is the relationship between the model, who is usually considered an independent contractor, and the agency representing him or her. According to the Raske complaint, when a model signs with an agency, the contract commonly includes a limited power of attorney during the term of agreement, which is often referred to as the “Management Period.” Raske alleged in both complaints that Next appeared to have forged her signature on tax documents given to McCann.
According to the Raske complaint, several of the agencies also tried to threaten models to prevent them from speaking out on these issues. Models were allegedly told that if they were to participate in the 2005 Fears Class Action, they would be “blackballed” and would “never again model in New York.”
“The lack of financial transparency has always been viewed as the ghost in the room and it knowingly and sometimes unknowingly affects every model in the industry,” Shanklin wrote in a letter to the Model Alliance (full disclosure: of which I am an advisory board member). “Since this issue has never been properly addressed, the core of the problem has created a sense of fear, enabling the agencies to operate in an environment of learned helplessness towards the models. This type of environment mirrors typical predatory behavior and needs to be stopped.”
While the Shanklin case is ongoing, what is clear is that there must be greater transparency and accountability in the fashion and modeling industries. The industry has proven time and again that it cannot regulate itself, so is it up to New York State to create mandated guidelines that modeling agencies must follow. It is also up to the public to understand the products we consume. Unfair image usage is particularly galling as the fate of many businesses often depends on advertising images—in which the models appear—to sell their products. So next time you are in your corner drugstore, stop and consider the worker pictured on the hair color box, and not just her mane of Absolute Blonde.