Chimayó resident files lawsuit, says flask bearing her image is defamatory

Chimayó resident Veronica Vigil says Anne Taintor Inc. has defamed her by using her 1970 high school graduation photo on this flask, a product Vigil says makes light of substance abuse and is in direct conflict with the way she lives her life. Courtesy photo

Correction appended

A Chimayó woman is suing the maker of novelty products over a flask that includes her likeness and the phrase “I’m going to be the most popular girl in rehab.”

Her lawsuit, which was filed in state District Court in November but has since been moved to federal court, also names Doodlet’s gift shop in Santa Fe as a defendant.

In her complaint, Veronica Vigil, says Anne Taintor Inc. obtained and used her high school graduation picture from 1970 without her permission and has defamed her by linking her image to a product that makes light of substance abuse, in direct conflict with the way Vigil lives her life.

“Plaintiff is an active member of her church and does not consume alcohol or drugs,” according to the complaint. “Given the seriousness of the issues of substance abuse in the community in which plaintiff resides, she has held herself out by reputation for her children and her community, to refrain from abuse or even use of alcohol and illicit drugs and has set an example that the issue is a very serious one that destroys families and lives.”

Vigil and her husband, who have two grown children, operate an auto-restoration business in Española. Vigil’s attorney, Blair Dunn, said he wasn’t sure which high school Vigil graduated from but believed it was either Española High School or Pojoaque High School.

Dunn said Vigil’s daughter came across the flask — which features a young Vigil sporting a beehive-inspired hairdo — while vacationing in Florida. The product was not listed on Taintor’s website Friday, but it was offered on Amazon for prices ranging from $21.95 to $25.29.

Anne Taintor Inc. founder Anne Taintor is a Harvard University graduate who, according to the company’s website, has been “making smart people smile since 1985” by selling a variety of products that juxtapose vintage pictures of stereotypically portrayed women with sarcastic slogans that seem to reflect what they might be thinking.

“It’s okay, I didn’t want a real life anyway” and “Make your own damn dinner” are some of the slogans the company has used in conjunction with pictures of smiling housewives on a variety of products, including mugs, flasks, sticky notes, towels, calendars and phone cases.

Taintor began the company — which is celebrating its 30th anniversary and boasts 3,000 outlets in 25 countries — in Maine. But she operated the business from Coyote, N.M., where she lived for about a decade before returning to Maine a few years ago. A message left at her New York City office was not returned. Her Albuquerque-based attorney could not be reached Friday.

Dunn said Doodlet’s — a Santa Fe toy store and gift shop that has been in business since 1955 — is named in the complaint because the store has likely sold magnets and cards bearing the same image as the flask, and thousands of other Taintor products over the years.

Store owners did not return a call from The New Mexican, but they said in an answer to the complaint that they have never sold Taintor products bearing Vigil’s image and that they should not be a party in the suit.

Dunn said other New Mexico outlets, including Talin Market in Albuquerque and Cost Plus, also have carried products with Vigil’s image.

Taintor Inc. has had the case moved to U.S. District Court on the basis that the company is no longer located in New Mexico (cases such as these can only be moved to federal court if the parties live in different states).

But Dunn said he’s trying to have the case moved back to the First Judicial District partially because he thinks a local jury would be better able to understand the harm the products have brought to Vigil’s reputation.

The use of the image has led others to think that Vigil “either has a problem with drugs and alcohol personally, or she condones the use of her image to make light of an important social issue that affects her community,” according to the complaint, and this use has caused her to be “held up to scorn and contempt.”

The suit, which charges Taintor with defamation, invasion of privacy and unfair trade practices, seeks an unspecified amount of compensatory and punitive damages.

Contact Phaedra Haywood at 986-3068 or phaywood@sfnewmexican.com.

Correction: This story has been amended to reflect the following correction. A previous version of this story said the Santa Fe store Doodlet's sold the flask. They likely sold magnets and cards bearing the same image as the flask. The story also said another New Mexican outlet to sell the flask was Costco; it was instead Cost Plus.

(14) comments

Barbara Waxer

These comments are conflating copyright rights with defamation. The subject of a photo probably doesn't own the copyright. While we don't know whether the original photographer retained rights or had an agreement to transfer rights to the high school, one question is whether the images ever even had copyright protection.

Under the law in 1970, as Sheila Smart noted, copyright didn't attach until images were registered with the Copyright Office and were listed with proper notation. If so, the images are still protected.
Defamation is a statement that injures a third party's reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements).

Defamation can apply regardless of an image's copyright status. Your must show 4 four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault; and 4) damages, or some injury or harm.

Taintor could argue that no one would reasonably take the tag line on any of their products seriously. Might be hard to prove actual malice.

William Sagaberd

This is what happens when people sell their yearbook to CLASSMATES.com or its parent company or affiliates. The copyright of the yearbook only covers the images of the yearbook owner, all other images in the yearbook that was sold are not covered by copyright law. Many people have already fought this legal battle and lost. If that picture was in a yearbook that one of her fellow school mates sold to CLASSMATES or their parent company she has already lost her battle. Unfortunately people do not bother to read the fine print in the sale agreement that gives the purchasing company exclusive rights to do anything they want with the images in the yearbook, including selling pictures for commercial use.
Been there done this. I've wasted $50k fitting it to no avail.
The only slim chance for her is that the school copyrighted the yearbook.
INSTAGRAM has an almost identical set of legal agreements in place for their service, you relinquish all rights and ownership of your images when you upload them whether you publish them or not. Once it reaches their servers you no longer own or control that image. Guess where they got the idea?

Meredith Madri

Veronica Vigil ought to have control of her own image, and it what context it is used.

Steve Salazar

If the caption was this "Girls were prettier in 1970", she might just ask for royalties. In this case, however, she needs to sue so hard that the company shuts down.

Mike Land

Where did they get the image? Was there a copyright watermark on it somewhere. If you post an image without placing a (C) or a watermark on it, you are basically giving away that image. Remember the family who wound up on products in Germany? They had posted the image to social media but did not put the (C) in the corner with a date. When you use Google maps, you will notice the watermark on the map images. When you go to a professional photographers web page and see high quality samples, you will see a watermark on it. This lady has a smidgen of a chance only if she posted it to a page she expected to be secure. Elsewise, a federal judge will toss it.

Sheila Smart

While watermarking is desirable, it has not been a legal requirement in the US since 1989. Carolyn Wright of Photoattorney explains here: "A photograph is protected by copyright at the click of the shutter. If the photographer posts a copyright notice on or adjacent to the photo, then an infringer cannot claim that the infringement was innocent. 17 U.S.C. § 401(d). But even if the copyright notice is not posted with the photograph, then you are still liable for the
infringement. In essence, copyright infringement is a strict liability regime. “The standard rationale for excluding innocence as a defense to copyright infringement is that, as between the copyright owner and
the infringer, the infringer is better placed to guard against mistake”; “the strict liability rule should discipline an infringer, who might otherwise mistakenly conclude that his copying will not infringe the copyrighted work, to evaluate the legal consequences of his conduct more carefully.” P. Goldstein, Copyright § 9.4 at 162 (1989)." End of quote.

Watermarks are easily removed and once they are, the genie is out of the bottle and photographers then have to battle infringement.

Maxwell Vertical

Vigil has good case. This will never go to court but will be settled in her favor.

Joe Montoya

Such suit will not see the light of day in any court. It will be seen as an attempt by the victim to scrounge money in her attempt towards an easy route to riches, which will not fly with a jury!

Michael Welsh

So how does Taintor get these images w/out permission? Why not use models who are paid to look foolish?

Julian Grace

Frivolous lawsuit, high expectations of a money award, but just the petty personality gripe blown waaaayyy out of proportion to the satirical and kind of innocent laughs intended, but the waaaayyy overly sensitive and IMohSHO highly insecure high school girl she was and/still is?, exhibiting the highly expected commensurate reaction to a situation where nobody would have even recognized her except for herself. Anyone else?

James Wilson

Julian, let's put your picture on tubes of hemmorhoid cream. You're not going to be petty, and complain, are you?

Andrew Lucero

Oh Please Julian, this NOT a Frivolous lawsuit in any way. The lady has a case and a very good one! Taintor Inc. is using Mrs. Vigil's likeness to make money without her knowledge or consent... What's the difference between Mrs. Vigil and some other model? The difference is they signed a contract and are getting paid for it... At the very least, Mrs. Vigil deserves to be fairly compensated for the use of her picture just as they would any other model... As to punitive damages, I'll let a jury decide what's fair....That said, I highly doubt this will ever see a courtroom. More than likely, it will be settled as quietly as possible out of court.

One thing is for sure, it's seems to me that Anne Taintor has been making a lot money for years by using the likeness of people who didn't know about it...Clearly, she didn't take Business Ethics while she was at Harvard.

Judy Kaminsky

Mark Zuckerberg began Facebook as a student at Harvard. Based on various lawsuits against him over the creation of FB and based on his reputation for selling personal information for a profits (big profits), my guess would be that Ms. Taintor and Mr. Zuckerberg attended the SAME Business Ethics class, at Harvard....[scared]

Mark Ortiz

" the satirical and kind of innocent laughs intended,"
Julian, Let me be the first to congratulate the Grace family for having avoided a plague that has infected every family in Northern New Mexico, alcoholism and drug abuse and finding it so trivial that you find it worth laughing about.

" the waaaayyy overly sensitive and IMohSHO highly insecure high school girl she was and/still is?" So you know her or are you just starting off the New Year reveling you were a bully in school, waaaaayyy back in the day Julian, and maybe still are?

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