The Aleh Foundation, a high-profile Brooklyn-based non-profit, is facing a $5 million lawsuit for allgedly using a disabled girl's photo for a donation drive without permission.
The Aleh Foundation allegedly used a photo of Ayala Yakobzon -- a 5-year-old who was born with spina bifida and is paralyzed from the waist down -- to solicit donations. Yakobzon's family claims that they never gave permission to use Ayala's photo, and they never received a dime from the foundation.
But did the charitable foundation do anything unlawful?
The lawsuit blames the foundation for "misuse of photographs obtained under false pretenses and in furtherance of a fraud," reports the New York Daily News. False pretenses is a crime where someone obtains the title to property by means of an intentional false statement with the intent to defraud the rightful owner.
Though facts are sparse, it seems Ayala's parents are alleging they transferred the rights to Ayala's photographs after relying on intentionally misleading statements made by the Aleh Foundation.
Ayala's parents allege the entire Aleh campaign to raise money for Ayala was done without their permission. Though a significant amount of money was raised, none of it went to Ayala.
The campaign's profit margin supports that conclusion. According to financial disclosures from 2011, the organization raised $523,799 and spent $513,460, leaving a mere $10,000 to distribute, reports the Daily News.
In most states, you can be sued for using someone else's name, likeness, or other personal attributes without permission for an exploitative purpose, such as in advertising or other promotional activities.
A plaintiff must establish three elements to hold someone liable for unlawful use of name or likeness:
- Use of a protected attribute,
- For an exploitative purpose,
- Without consent.
New York limits liability to the unauthorized use of someone's "name, portrait, picture or voice."
From the allegations, it seems Ayala's parents feel they were tricked into giving permission to use Ayala's photographs. If that's the case, then the consent may be rendered unenforceable and the Aleh Foundation could potentially be liable for violating Ayala's likeness rights.
Representatives for the foundation did not return the Daily News' calls for comment.