SuicideGirls vs. Lithium Picnic: Exclusive AltPorn.net Interview with Apnea on Legal Dispute

We recently reported on the current legal dispute between SuicideGirls and their long time staff photographer Philip Warner, otherwise known as Lithium Picnic. AltPorn.net wanted to extend our appreciation to Apnea for taking the time for this interview, in order to shed some light on the details of this situation.

Sorry the circumstances for this feature are somewhat less positive. We hate to see talented creative people spending their energy fighting for their livelihood. Can you explain for the people not already intimately involved, what precipitated the split, and ensuing $100,000 lawsuit, between Philip and SuicideGirls?

There’s a lot of speculation floating around that it had something to do with the rise of his career and popularity outside of SG and the fact that he was shooting many of the models from GodsGirls and other competitors for his personal projects. Missy sent him demands that he could not shoot SGs for anything outside of SG without their permission, citing his “affiliations” as the reason they could “no longer trust him”. He never breached the contract he was under, so he pushed back and told them that wasn’t in his contract and continued to shoot whoever her wanted.

Ultimately Philip was booted off of the site back in November for shooting me for apneatic.com and allegedly owning and running my site. SG did no fact checking and made no attempt to inquire about it or resolve this with him. He’s been shooting with me (and dozens of other models) since 2003 in standard “trade-for-prints” exchanges. He retains the copyright and the models are allowed to use the images, standard in the industry. I used images he shot on my paysite, he did not and does not have a direct relationship with my site.

As for the ownership claim, he helped me register the name for my site in 2003 before it was a paysite, I even had the URL of apneatic.com posted at the top of my SG profile. There were no issues with it at the time. After they kicked me off the site I decided to open a paysite of my own since alt modeling is one of the major ways I support myself in college. Philip just registered the name for me he did not materially participate in the business, and he said as much to Paul Loving in his reply. This was a clerical error and has been corrected.

Philip had a very specific clause in his contract that allowed him to shoot for “single girl personality based sites” since the new contract they asked him to sign would have been in default from the moment it was signed. He was already shooting on his own with other well known models with sites like Masuimi, Darenzia, Kumi, Scar, etc. I guess it took them eleven months to get angry about it? It doesn’t get more “single girl” than my site, I don’t even post affiliate galleries, it’s “all Apnea, all the time.”

I don’t think anything about this lawsuit makes sense. It seems to me that this is more about who has the deeper pockets and trying to keep him from opening his own site or working for a major competitor than it is about my site.

How long had Philip been working with SuicideGirls, and all told, how many photo sets had he done for them in total?

Our first set went live in November of 2003, since then he’s shot over seventy five sets for the site.

What other sorts of work did they also have him do in his role as staff photographer?

It was not in his job description, but he created and maintained a Suicidegirls Myspace Fan Page (not group) to showcase his SG photos and pimp his affiliate codes. He did this on his own with no input from SG before they recognized Myspace as a viable marketing channel. This was the first big SG presence on myspace. It had samples of his SG photography and links to SG with his affiliate codes. He spent hours a week reply and fielding emails to the model applications and once it got up to about 30,000 members they demanded he give it to them. He pushed back but was nice enough to give them the user name and password to send out bulletins and was doing it for them but they changed his info and tried to take it. He did a password change and explained that if they didn’t want him using the SG name and logo on his fan page he would be more than happy to change it to a Lithium Picnic fan group but then Sean called him screaming (I was sitting next to him, I could hear him screaming) threatening to sue him. He settled in an agreement to keep his codes and a certain amount of his photos on the page but shortly after they breached the agreement and got myspace to move all of the members to another page. He lost a great deal of promotion not to mention the income from the affiliate links they removed.

See for yourself, it’s been a ghost town since they cheated him: http://www.myspace.com/sggroup I suspect they will delete it soon due to the upcoming litigation. It’s been documented and screencapped.

We’ve seen other SuicideGirls staff photographers complain that they still shoot sets for the SuicideGirls organization essentially on spec, what was the process of shooting for them like from start to finish, or from booking to getting the check?

I think most everyone shoots on spec. Even if they ask a photographer to shoot someone there’s no guarantee they will take it. SuicideGirls has withheld his paychecks on multiple occasions until he would sign updated contracts, send in additional hi-res images , or would agree to new terms requiring additional work. His checks were usually paid much later than the terms specified in his agreements.

Reading over Philip’s December 11th letter to SuicideGirls’ attorney Paul Loving, Philip outlined the pre-existance of the general photographic style SuicideGirls currently publish, noting for example the pre-SG publication Blue Blood. Are the SuicideGirls staff and legal counsel seriously trying to claim some sort of copyright on modern street-fashion oriented nude pin-up photography? What is their rationale?

Your guess is as good as mine. In the Godsgirls case the tried to claim ownership of the color pink, so it wouldn’t surprise me.

There has been a lot of speculation on the topic of what exactly SuicideGirls actively considers competition, and this is important because they are known to advocate certain behaviour towards supposed competitors. Since both yourself and Philip have been working with them for so long, can you share some insight into exactly who and what they really consider competitive, from a policy perspective?

I don’t know. SG is so huge, I can’t imagine that any alt porn site could really threaten their business. I think in Philip’s situation, SG is just making an example out of him for shooting girls from other sites for his personal projects and for standing up to them as much as he did. This seems to be more about keeping him from making his own membership site or shooting for another big alt site than it is about them having $100,000 in real damages or being threatened by my site.

Given that SuicideGirls has a fairly widely accepted reputation for their comprehensive exclusionary, and some even say laughably overreaching, contracts, how surprised were you and Philip by the their action against you? Were they easier to work with early on, when you and Philip started working with them? What was it that motivated you to work with an organization notorious for doing just this sort of thing?

Sean asked us to join the site in 2003. There were no exclusive contracts back then, the rule was more like, “If you shoot for another site your sets won’t go live on SG as often.” I remember the day it happened, ex SG Anouck made a fuss about the rule because she was on Manic Jane or something like that, then staff gave her the boot and created the exclusivity rule. Lucky for me, all I ever signed was a model release in 2003 . It wasn’t until I was kicked off of the site in 2005 that the contracts were ever made. As far as being surprised about Philip being served papers, we weren’t surprised at all, just disappointed. We are not a threat to SG, we want nothing more than to be disassociated with them. In my opinion, this is all based on a foundation of greed and spite.

Is your site, Apneatic.com, going to stay live during the dispute, because we’re sure a lot of members and supporters, ourselves included, would really hate to see them get away with pressuring you to close it down over this.

My site isn’t going anywhere! In fact my web designer asked me yesterday if he should halt on the redesign of the site until the case blows over, but I told him to keep building. Philip is still working on his own projects too, as much as this has affected our lives, we’re still loving life and working on our own projects.

In a lot of your publicly posted explanations of the dispute, you state that the suit is over SG’s contractual objection to his alleged ownership and involvement in your site, Apneatic.com . But on November 22nd, he publicly announced on his Lithium Picnic Studios site, that he was about to add quite a few potentially competitive features. He stated that lithiumpicnic.com was gearing up to become a “membership” site with member blogs, member photos, forums, friends lists, along with photo and video updates and much more. The very next day after that announcement, SG issued their disputed “Creative Services Agreement” to Philip, which he claims to have not signed. Then, on November 24th, the day after they issued their “Creative Services Agreement”, he announced that he had left SuicideGirls to pursue other projects. Given the turn of events over those three days, it’s odd to read that the dispute is somehow over your site. Is it fair to think that maybe the dispute is more about a preemptive move on their part to protect themselves against what would obviously be a more competitively featured venture than just your solo project?

He was kicked off SG with no explanation. After 3 years of hard work and promoting SG he was booted from the site without warning, the girls were notified that sets from him were no longer going to be accepted, and his 1,500+ member fan group was deleted. Neither he or the members were offered any explanation. His emails and IMs to SG staff went unanswered. Missy blocked his IMs from three different accounts. All he requested was an explanation and an opportunity to discuss what was happening. About a week later he got the breach document from their attorneys and the demand for $100,000. In response to the flood of emails and inquires and in an attempt to save face he made the simple statement that he was no longer working with SG and was moving on. They are still trying to hold him to a contract that prohibits him from and “disparaging remarks” he was advised by his attorney to keep it simple.

As far as competitive features are concerned, the bottom line is that it is not a paysite. He plans to someday open a site with beautiful nude photos in the style he was shooting before and during his time with SG, but the site will probably be based more on the photography and lighting diagrams and the technical aspects. A place where photographers could join and check out lighting diagrams and talk shop about cameras and stuff. He is always flooded with emails from new photographers asking his advice on stuff, so he figured he might as well start getting paid for it! I think it’s a wonderful idea. No, he never had any intention of opening an SG “girl based” competitor site. We’re leaving that fish for Godsgirls and DeviantNation to fry. But to answer your question, I don’t think this has much to do at all with me or my site, that was just the only half-excuse they could use to sue him since he never really violated his contract.

Tell us about the general public response you’ve been getting so far to the news of this suit.

We’ve been overwhelmed and renewed by the show of support and outrage. We’ve been especially moved by the public and private show of support from SG members, models, and even certain staff. It’s very clear as day that their argument is flimsy, unsubstantiated and malicious. It has never been my intent to persuade anyone to hate Suicidegirls, I wouldn’t wish that kind of energy upon anyone. I just want people to be informed and I want to be left alone. All of that projection is still helping their business. I haven’t visited the site in many moons; if people really didn’t like the site, I wish they would just stop going and stop talking about it. Then maybe Suicidegirls will either quietly go away and stop suing everyone.