Oh, My God, That's Me!

Imagine model Kelly Vitolo's surprise when she saw her own (unauthorized!) image on a Mary Kay "before and after" brochure

At first blush, Kelly Vitolo would seem to be the perfect choice to model for Mary Kay Cosmetics. So when the stunning face that has graced several bridal magazine covers turned up on fliers advertising Mary Kay makeovers for young brides, it should have come as no surprise.

Except for one or two things.
"I would never use the product," Vitolo says. "I think it's inferior." She's also allergic to it. So why was Vitolo's picture on fliers promoting Mary Kay? That's what she wants to know.

The Miami model became aware of the ad campaign firsthand last year, when she and her best friend were browsing through booths at a bridal show in the Crystal Lakes Country Club in Pompano Beach. The Mary Kay counter offered fliers with "before" and "after" pictures of Vitolo demonstrating the wonders of Mary Kay make-up.

"I went, `Oh, my God, that's me!'" Vitolo recalls. "I couldn't believe they were using my pictures. I was shocked."

A closer look confirmed Vitolo's first impression. The photos, which were part of a flier entitled, "Bridal Makeup Artistry," held the caption: "Pamper Yourself, You Deserve It." The photos themselves were at least four years old, Vitolo says, adding that she never particularly liked them. (The lighting was off and she thought the make-up artist hadn't done a very good job.) She especially disliked the "before" picture. "Nobody wants to see a before," says the model disdainfully.

Part of Vitolo's amazement was attributable to the fact that at the time the "after" photo was shot, she wasn't wearing Mary Kay cosmetics. "I would not represent the product," she huffs. "I believe in truth in advertising."

Adding insult to potentially actionable injury, Vitolo is currently up for a deal to represent Revlon and she's afraid her unintentional association with Mary Kay might cost her the job. She has sued Mary Kay in federal court, seeking unspecified damages for invasion of privacy and misappropriation of her likeness and image.

Vitolo says she's been working as a model for eight years, dividing her time between Miami, New York, and Japan. Currently featured on the cover of Joan Collins's book, Prime Time, she has also appeared in numerous magazines, including Modern Romance, Premier Bride, and Novias, as well as on the cover of several Harlequin romance novels.

Brenton Ver Ploeg, an attorney for the big pink cosmetics conglomerate, claims that Mary Kay is not responsible for what its sales representatives do, because they're all independent contractors. Although the agents are responsible for devising their own methods to promote the products, the attorney says they aren't authorized to attach the Mary Kay logo to advertisements that aren't company-sanctioned. Mary Kay didn't okay use of the Vitolo photos by any of its agents, he says; the company wasn't even aware that the pictures or the fliers existed until the suit was filed.

The photos at the center of the dispute were shot in 1987, after Vitolo was approached by Eileen Renee, a local make-up artist, to pose for "before" and "after" pictures that would showcase Renee's abilities. Vitolo says that she believed Renee would only use the photos as part of her portfolio.

Apparently, however, Renee printed up a few fliers to hand out to prospective clients. One of the fliers evidently found its way into the hands of a Mary Kay agent, who scratched out Renee's name and substituted the Mary Kay logo. Since then, Vitolo alleges, the flier has been widely distributed to Mary Kay agents throughout South Florida. In a sworn deposition, Vitolo says that when she confronted the Mary Kay representative at the Pompano Beach bridal show, she was informed that the flier had been passed from one agent to another for years.

Vitolo's attorneys, Sherry Klein and Richard Wolfe, say they have attempted to determine exactly how widely the flier has been distributed during the past five years, but without much luck. "They have not answered any of our questions regarding distribution," Klein says of Mary Kay. "It could be all over the place."

Vitolo especially disliked the "before" picture. "Nobody wants to see a before," says the model disdainfully.

 
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