Custom Model Release

[Ed Sukach]

Ed Sukach submitted a new resource:

(there was a url link here which no longer exists) - Custom Model Release

After quite a bit of thought and conversations with other photographers and models, I have settled on what I consider to be an appropriate Model Release, offering protection in good faith to both Photographer AND Model. Most "boiler plate" releases are heavily biased toward the photographer, and truthfully, *I* would not sign them myself. Note that this is a "custom" release, tailored to Fine Art Figure Studies. There have been reported instances of abuse, with the Model Release treated as a...

(there was a url link here which no longer exists)

 

[rrankin]

On first glance, I'd say that this gives the model too much control over you and doesn't actually solve the legal issues satisfactorily. You have paid him/her when this release is signed. With para 2, he/she can prevent you from publishing by not signing a second release while, at the same time under para 3, he/she could be using the same images for self-promotion. Personally, I'd say para 1 is so vague as to be useless. If a disagreement arises, how is either party going to prove what you showed in that portfolio as per that para as a representative sample? It also refers to agreements made outside of this agreement which is another vague minefield sine they are not specified or even legally included by reference. No offense, but I think you need to head back to the drawing board on this one. Cheers, Richard

 

[Ed Sukach]

On first glance, I'd say that this gives the model too much control over you and doesn't actually solve the legal issues satisfactorily.

Thank you for the reply. ALL will be considered.

I am wondering, though .. have you any specific information about which issues are left "unresolved"?

... You have paid him/her when this release is signed.

Not necessarily. Usually, this Assignment - Preliminary Release - will be signed BEFORE the work... to establish the charater and "limits" of the session.

With para 2, he/she can prevent you from publishing by not signing a second release while, at the same time under para 3, he/she could be using the same images for self-promotion

Will not, and can not happen. The Model will not receive the images until I develop the film. Shorter times might be possible with digital cameras, but I do not work with digital cameras.

Personally, I'd say para 1 is so vague as to be useless. If a disagreement arises, how is either party going to prove what you showed in that portfolio as per that para as a representative sample? It also refers to agreements made outside of this agreement which is another vague minefield sine they are not specified or even legally included by reference

.
Signing the Agreement - Preliminary Release - by BOTH parties would indicate an understanding/ agreement as to the work to be done in the future... This will be a control over the Photographer, admittedly, but in my opinion it is only a fair way to assure the Model of "good faith" - in writing.

You view this as a "minefield"? Do you have any other suggestons here?

No offense, but I think you have to head back to the drawing board on this one

This has never left "the drawing board" in the first place. I still have to talk to more participants on both sides.

 

[patrickjames]

As a professional I must interject that the model release is designed to protect you, not the model. If you are an honest and honorable person the model does not need to be protected from you.

 

[Ed Sukach]

Hi, Fellow Professional!

Thank you for your comments. They are appreciated!

I realize that this release is not "of standard form" - it was not meant to be. Unfortunately, there are those who will ABUSE the idea of good faith. This was meant to protect both photographer and model ... and intended for use primarily in "Fine Art" (read: "Nude Figure Study") photography. Commercial work may well require something different.

I would be interested - do you think anything detracts from the "protection" of the photographer, or affords any inappropriate "power" to the model?

 

[TheFlyingCamera]

I agree with previous posters that it gives WAY too much control to the model. I also disagree about putting terms of payment, especially the commission over a period of time, into the model release. Frankly, I am opposed to paying a commission to a model period. Payment to models should be a one-time deal, specified at the time of the modeling session. Given how hard it can be to get models even to show up on time, let alone provide you with contact information valid beyond the day of the shoot, I do NOT want to have a contractual obligation dangling out there for a three-year period. Because of the nature of showing work in a gallery, it might well be two or three years before you actually show or sell the work. If a model hears nothing from you for three years from the date of the shoot, and then five years later sees their photo in a book or a gallery, how are you going to prove to them that you didn't stiff them out of three years' commission, and more to the point, how are you going to prove to a court of law that you didn't, and aren't subject to punitive damages? That's all-around bad mojo. Just pay them whatever you're going to pay them. Specify that in a separate agreement.

The same goes with the "provide digital and analog copies for their use" bit. I have no problem with providing copies of work to models for their portfolios. I am not going to give them unlimited rights to reproduce without some degree of supervision from me - I don't want them taking my work and turning it into posters they're selling on Ebay.

 

[Ed Sukach]

I agree with previous posters that it gives WAY too much control to the model. I also disagree about putting terms of payment, especially the commission over a period of time, into the model release.

Point taken. Having the model share in the financial rewards seems OK to me. It is NOT unheard of for a model or photographer to request and obtain a more reasonable amount for compensation. If I photograph a model as "Fine Art", and pay her a small amount for the model release, say $10, and later that image is the central to a national or world-wide advertising campaign involving great sums of money, it is, to me. only a matter of "good faith" to re-negotiate the contract and increase her compensation.

If a model hears nothing from you for three years from the date of the shoot, and then five years later sees their photo in a book or a gallery, how are you going to prove to them that you didn't stiff them out of three years' commission, and more to the point, how are you going to prove to a court of law that you didn't, and aren't subject to punitive damages?

Unless I've been advised incorrectly, the person bringing the suit will have the primary burden of proof. How will the model PROVE that I DID sell anything, or that I did not exhaust all reasonable means to contact her when, in fact, I will have done exactly that?

That's all-around bad mojo. Just pay them whatever you're going to pay them.

Nah! In my book that is good mojo.

The same goes with the "provide digital and analog copies for their use" bit. I have no problem with providing copies of work to models for their portfolios. I am not going to give them unlimited rights to reproduce without some degree of supervision from me - I don't want them taking my work and turning it into posters they're selling on Ebay.

I specified "Portfolio use only". There is nothing there giving them absolute free us of those images for any other purpose.

 

[TheFlyingCamera]

I'd rather avoid the suit altogether, and just pay the model a reasonable fee upfront. That way, they know exactly what their compensation will be, and if they're not happy with that amount, they politely decline to pose, and that's that. As I said before, I don't think that kind of information belongs in the release itself. You can write up whatever contract you want between you and the model as far as compensation is concerned - I don't think that contract belongs in your model release. I believe in paying a model a fair rate for their time - and I do include the prints I give them, as fine art prints, in the calculation of their compensation. As an example, I know that my prints sell for at least $250 apiece, so if I pay the model $100 in cash for an afternoon's posing, and give them four prints, signed as artists proofs, I just handed that model $1100 worth of compensation. I'd say that is pretty good pay for an afternoon. If you hire a figure model through an agency, where such things are highly regulated, you pay the model typically $150 an hour (well, the AGENCY gets $150 an hour... god knows what the model's actual cut is), and then that's that - the model expects to sign a blanket release that absolves you of any liability and any relationship to them, and any rights they have of review and refusal. I believe in discussing these things with the model in advance, so they can be comfortable when signing that standard release. I'll talk about it with the model before, during and after the shoot, so they feel good about what I've shot, and I'll be glad to discuss any specific image with them, but I'm not going to cede creative control.

If you use a release like the one above, you are creating the perception in the mind of the model that they have co-ownership in the images you create, which is not the case. Again, the idea is to prevent legal hassles, not generate greater possibilities for them in the future. I have heard stories where someone posed for images when they were younger, then many years later regretted, and came back and sued the photographer (or the worst case, the estate of the model, in the form of their parents), and because the model release was not airtight, the photographer got hosed as a result.

 

[Ed Sukach]

If you use a release like the one above, you are creating the perception in the mind of the model that they have co-ownership in the images you create, which is not the case. Again, the idea is to prevent legal hassles, not generate greater possibilities for them in the future. I have heard stories where someone posed for images when they were younger, then many years later regretted, and came back and sued the photographer (or the worst case, the estate of the model, in the form of their parents), and because the model release was not airtight, the photographer got hosed as a result.

The question then becomes ... was the model's conclusion a reasonable one? I've fielded this with "the other side" - models, and so far that does not seem to be the case. (note 1)

As for legal hassles, I've discussed this with my Attorneys, and even more to the point, my youngest daughter who, in a different life was a Legal Secretary in a law firm dedicated to Contract Law, and was deeply involved in Model/ Property Releases, Advertising Contracts ... etc. The stories she can tell (especially, why the release was shot down in court) could curl your hair.
Her one comment: "For the most part, the `boilerplate releases' found in the Everything You Need to Know as a Photographer books are worth much less than the paper they are printed on ... and the most common fault: Too broad. Specificity is important here."

(note 1) I'm not done, yet. I haven't asked the models directly about their perception of "co-ownership" of images. I'll grind that fine... to be more confident of my impression.

BTW ... You did kind of "throw" me here ... where the "someone who posed came back and sued the photographer (or in the worst case the estate of the .... Model...)" Model? Wouldn't the person who posed be the "model"?
They would be suing their own estate????

 

[TheFlyingCamera]

If I made that unclear, my apologies. The situation I described was that a young woman had posed for a photographer. A modest amount of time passed, and she was killed in a car accident. Her parents (representing her estate) sued the photographer, claiming she was a good (insert choice of faith here) girl, and would never have willingly done such a thing. If I recall correctly, the photographer had a poorly executed model release, and so the parents were able to create doubt about the intent of their daughter, and bankrupted the photographer. Now, exactly what was in that release, I have no idea. It could have been something scrawled on a napkin, at which point the photographer deserved what he got.

 

[Dave Wooten]

Release vs Contract

http://www.fordmodels.com/main.cfm

Coming to Milwaukee Open Call Feb 24th 11 am - 4 pm
Brookfield Square mall.....

Check it out and note the contracts a top modeling agency uses...

Think in terms of a contract--an agreement to pay for work done, instead of a release agreement....several times in public and private school situations I had to get parental permission-a release- when a photographer or film crew was on campus....for this "release" compensation was not given...in some cases students were not allowed to be photographed.

I think quite often photographers want a "freebie" imho, while photos given to a model for her work, are often accepted as payment by neophyte or want to be models, a higher and more professional stance is to contract for pay.

Models serious about building their own portfolio and agencies representing models will pay you for your work.

When the end product is to be marketed and sold by the photographer for product ads or fine art prints a lot can be learned by going with a local modeling agency and contracting one of your projects.

 

[copake_ham]

I'd offer a couple of observations:

If I understand correctly, we are considering the situation where a photog is hiring the individual for a specific shoot. The goal then is to obtain an "absolute release" from the model for the use of the photographs taken in exchange for an agreed-upon compensation.

In this situation, once the model agrees to work for hire and is paid - he/she has no further rights to the product.

If, on the other hand, we are talking about a situation where a model is hiring the photographer to provide him/her with a portfolio, then the model controls the contractual arrangement. In such an instance, the interest of the photographer is likely to be to obtain some limited additional usage of the photographs (images, negatives etc.) beyond providing the product to the model (as client).

This second scenario is one of negotiation, and depends on the relative "negotiating power" of each party. If the model is a "newbie" he or she will have to give the photographer greater control of the usage of the images than if the model is a well-established pro.

As to "good faith" the courts are not likely to try to delve into the "integrity" of the parties in a contract dispute. What they are likely to consider is whether here was a true "offer and acceptance" that formed a binding contract.

Three other points worth noting:

1) Even a drunk can form a contract by a writing on a cocktail napkin. In fact, this is usually one of the first cases one studies under contract law. The law favors the making and upholding of contracts and assumes the parties intended to engage in one even if one later claims "impairment".

2) Remember, no one under the age of 18 can enter into a valid contract. Those under the age of 18 are deemed "infants" under the law and any contracts so entered into by such persons are null and void on their face.

This is probably the most important point Ed should keep in mind when entering into Fine Arts modeling contracts. If the model is under 18, the legal guardian must enter into the contract on behalf of the "infant" model.

3) While it is true that more lawyers have made more money defending clients who relied on a formbook to make a contract (figuring it was cheaper than hiring a lawyer) then they did writing them; there are some very good legal formbooks (which lawyers themselves use) that can be consulted in a good law library.

The problems arise when lay persons attempt to "tailor" the forms to meet specific situations.

Anyway, just my 2 cents.

 

[catem]

For interest - there was a major Seminar at the National Portrait Gallery last May on 'Issues of Consent', it included speakers Melanie Manchot, Richard West (Source Magazine), Helen James (writer & researcher) & others (an editor from the Observer whose name I've forgotten). It was running alongside an exhibition by Helen Van Meene. It was public and I was in the audience, there was lots of interesting discussion both from the panel and with the audience after, some known photographers and teachers there... The consensus was there needed to be discussion around 'Consent' with models (subjects) in artistic works in order to protect the model BUT this should be separate and different from the model release which exists to protect the photographer in a COMMERCIAL situation with a commercial model.

An example of the importance of 'informed consent' was that Manchot has taken pictures of people in large groups in public places in the Ukraine where public gatherings are illegal. Before each new exhibition of these photographers she contacts, or attempts to contact, each one of the participants, to get updated permission. This was given as an extreme example of the ongoing need for informed consent, which was in fact put more generally very much in the terms FC described - discussion before, during and after, and then in special circumstances - ongoing. She also included photographs of her mother she has taken which she never exhibits without her 'O.K.' On the day people seemed to see it as possibly and potentially a legal issue, but that in reality it would be very complex (and possibly a minefield) to make legal and binding. It was seen more as an ethical issue - which needed to be thought about and discussed more - and different in this way from the Model Release.

 

[Ed Sukach]

I'd offer a couple of observations:

... Thank you!! Seriously. I'm not trying to defend a mountain here - only to eliminate pain, suffering and misunderstanding in the studio and, subsequently, in the Gallery exhibition.

If I understand correctly, we are considering the situation where a photog is hiring the individual for a specific shoot. The goal then is to obtain an "absolute release" from the model for the use of the photographs taken in exchange for an agreed-upon compensation.

Close - but I'm not seeking a "absolute" release (defining absolute as: This contract allows me to run roughshod over any concerns, sensitivities or rights of the model.)

There is an example: A model was hired for what she understood to be an advertising campaign for "bedroom stuff": - sheets, pillowcases, beds, mattresses - and like that. She posed, naturally, wearing attractive sleepware. She signed a Model Release granting the use of the photographs "For any purpose, no matter how degrading, miserable, or demeaning and no matter how severely it would damage her reputation - giving up all her rights... no opportunity to see the work ... " etc. She accepted pay for her work.
A few months after the session, she happened to be in a Video Rental Shop, and discovered one of the images from that session on the cover of an XXX (and then some) rated video - although she had nothing to do with the video itself. She sued - claiming a "Breach of Contract" - in having been led to misunderstand the terms of the contract - the end use of the product.

She won - BIG!

If, on the other hand, we are talking about a situation where a model is hiring the photographer to provide him/her with a portfolio, then the model controls the contractual arrangement. In such an instance, the interest of the photographer is likely to be to obtain some limited additional usage of the photographs (images, negatives etc.) beyond providing the product to the model (as client).

I would suggest that another scenario can exist: a cooperative agreement where both parties benefit... ~ equally. Come to think of it ... isn't that the premise behind ALL contracts?

As to "good faith" the courts are not likely to try to delve into the "integrity" of the parties in a contract dispute. What they are likely to consider is whether here was a true "offer and acceptance" that formed a binding contract.

Agreed. The "Custom" Release I'm proposing defines the "Offer" more specifically ... and should be more effective in defining the consequences of "acceptance".

Three other points worth noting:
...
2) Remember, no one under the age of 18 can enter into a valid contract. Those under the age of 18 are deemed "infants" under the law and any contracts so entered into by such persons are null and void on their face.

Yes. I always copy a document from the Model, identifying her, and stating her age (e.g. Drivers' License, Passport, State I.D. card) and file it with the Release.

3) While it is true that more lawyers have made more money defending clients who relied on a formbook to make a contract (figuring it was cheaper than hiring a lawyer) then they did writing them; there are some very good legal formbooks (which lawyers themselves use) that can be consulted in a good law library.
The problems arise when lay persons attempt to "tailor" the forms to meet specific situations.

Again, agreed. The key word here is "Consulted". That is where the Attorney STARTS ... his/her intelligence and legal skills are necessary from then on.

To follow these examples lemming-like will, most probably, lead to the same fate as the lemmings.

Anyway, just my 2 cents.

"Just"???? No ... worth FAR more than US$ 0.02!!!

 

[TheFlyingCamera]

One of the problems I have with putting in wording that claims to "respect the models' sensibilities" etc is that even WITH consultation in advance, I can only THINK I know what the model would or wouldn't want. And, they could always change their mind and say yes to one use, but no to a different but analogous use. The whole point of the release is to eliminate interpretation, not to inject more of it. When working with models, I always make it clear in our conversations before AND after signing the release that I will NOT submit their work for publication in "adult" media unless they specifically request such. I think the nature of the work in my portfolio also encourages their understanding that this is not what I would do. Common courtesy and sound professional ethics can overcome a lot of your objections, without giving away the farm to the model. If I have a pose or an idea that I think the model may be uncomfortable with, I shoot a polaroid of the pose and show it to them for their approval first, and discuss the pose beforehand, so they can say yes or no, I'm not comfortable with it. That way, we never do anything they're uncomfortable with in the first place.

 

[Ed Sukach]

One of the problems I have with putting in wording that claims to "respect the models' sensibilities" etc is that even WITH consultation in advance, I can only THINK I know what the model would or wouldn't want.

That "wording" is not in the release... and the reason it is not there is exactly that: it would be far too open to interpretation.

All that said ... my intent, and I invariably DO, just that. I discuss the session, hopefully sufficiently, but I will NEVER be completely sure of what the Model really wants. Or what anyone else, anywhere, wants - in any situation. All I can do is my best.

I am trying to increase understanding of what is involved, and establish confidence in my set of values... otherwise known as, "No five o'clock surprises."

 

[copake_ham]

...

There is an example: A model was hired for what she understood to be an advertising campaign for "bedroom stuff": - sheets, pillowcases, beds, mattresses - and like that. She posed, naturally, wearing attractive sleepware. She signed a Model Release granting the use of the photographs "For any purpose, no matter how degrading, miserable, or demeaning and no matter how severely it would damage her reputation - giving up all her rights... no opportunity to see the work ... " etc. She accepted pay for her work.

A few months after the session, she happened to be in a Video Rental Shop, and discovered one of the images from that session on the cover of an XXX (and then some) rated video - although she had nothing to do with the video itself. She sued - claiming a "Breach of Contract" - in having been led to misunderstand the terms of the contract - the end use of the product.

She won - BIG!

Ed,

It's impossible for me to comment on why she would have won a litigation on the basis of the usage of the image as noted.

I would hazard a guess that she was able to argue that the use was so far outside of the original stated purpose of the shoot as to have been an egregious deception and misrepresentation as to the true intentions of the shooter.

Or, perhaps more likely, she won at a jury trial and that is what was reported but was reversed on an appeal that no one ever heard about.

All too often folks cite the "headline lawsuits" that seem ridiculous and never learn how many are overturned on appeal (where there is no jury - just the law and judges).

By the way, one can mitigate this risk in drawing up the release contract by:

1) Requiring that any court dispute by the parties be strictly before a judge (i.e. a "No Jury Trial" clause) or;

2) Requiring that any disputes that arise between the parties be submitted to binding arbitration only in lieu of the courts.

As to number two, the law is very favorably disposed to arbitration (if only to take case load off the courts) and the effectiveness of such clauses has consistently been upheld by appellate courts, including the US Supreme Court.

 

[Ed Sukach]

As usual, when I write from memory, I can't find the original story. It DID include the "XXX" rated video.

Trying to find it, I referred back to "The Professional Photographer's Survival Guide", by Charles E. Rotkin, (ISBN 0-89879-554-0)... p. 284:

"In selecting a proper model release (see the appendices in the back of this book for samples) you must consider a number of things. There has been litigation concerning advertising photographs when the model or photographer has charged that the pictures published were not for the uses intended at the time they were made. In one well-published incident a model posed for an advertising photograph reading a book in bed. The client was a publisher and the picture was intended to stimulate the sale of books. There was no problem or litigation with the ad that was produced.

However, the picture was subsequently sold to a bed sheet manufacturer and, with some suggestive overtones added to the copy, was used to promote the sale of sheets. The model objected, sued, and won her case on invasion of privacy grounds, because the second ad portrayed her in a derogatory manner. She won her case even though she had signed a "broad-form" release giving the photographer and agent the right to "use the photograph for any purpose." The court ruled that it was clear that the model in this case did not intend to allow her photograph to be used in this suggestive manner and felt that the ad placed her in an unfavorable light."

So ... I have NO problem, whatever, in allowing any of my models to review the - OUR - work. Not only will it be a "good" thing to do, in avoiding, as much as possible "five o'clock surprises", feedback from the model will provide me with useful information in our working relationship. To me, any other course of action, simply, does not make sense.

 

[jdn]

Model Release

With all due respect, when I pay someone for services, they consent to those services, they agree in writing (broad form release) to accept money for those services (assuming they are legal) they have little legal ground to complain later about "intent". "Intent" is a matter of interpretation; it is nebulous; a legal contract in contrast is just that - it spells it out so it cannot be changed without both parties agreement; it is binding. Releases are signed all the time in business for many reasons (did you ever have a car accident and the insurance company offer to settle?); nobody questions "intent" nor does the payor (or Judge) frankly feels sorry after the release is signed for any "misunderstandings". Contract law is rather straightforward. Of course, anyone can sue anyone, but if you have acomplete and full release and a good attorney you should be protected. Furthermore, while I like and respect nearly every model I have worked with and I feel I am ethical, my duty as a businessman is to protect myself, not the model. My attorney has repeatedly told me the same, therfore if I pay the money, I write a one sided contract. It is up to her whether she accepts my compensation offer which includes a full release and signs the contract. "Protecting the model" only opens up opportunity for legal exposure and damages. Don't be silly and include her. Nothing good can become of it.

 

[Ed Sukach]

Interesting reply.

I am a photographer FIRST and a "businessman" third or fourth -- or something like that down the line - a least as far as my involvement in "FINE ART" photography. Commercial, advertising (where does one stop and the other start ?) etc., are NOT the same ball game.

Protect my models? Damned right I will. I have every concern - and every reason to be concerned, about their well-being. I am not on this earth to create misery - or create a situation where misery is a likely result - to ANYONE, especially NOT to those who work with me. My work depends greatly on the confidence the models that work with me have in my integrity ... and committing my modus operandi to paper is one way, IMHO, to enhancing that confidence. See: "rapport".

Please remember that this is a SPECIALIZED contract, reflecting MY involvement in Fine And and Gallery Exhibiton.

I'll ask again ... I've heard the "You're giving the model too much control" comment (almost incessanlty); just where is all this excessive contol? Can I not pay the model $10 or $10,000; or $50 per week for all eternity - if I so choose?

There is a web site that has been a useful guide in all this. I don't have the address at my fingertips. I'll check my bookmarks a edit-post it here. Please - as a favor - check it out and let me know what you think about it.

Added: That web address is:

[ http://www.danheller.com/model-release.html#1 ]

 

[Bill Mobbs]

What a novel concept... that models are people too. Thank you Ed Sukach for traveling on the high road. We do need more like you!

Best regards,

Bill

 

[Ed Sukach]

Thank you, Bill.

I appreciate your expression of support. You have re-stated - exactly - what I am trying to do ... "Take the high road".

 

[Christopher Nisperos]

No model release problems if you just ...

I shoot vegetable portraits. I just eat my models afterwards. No release. No problems (other than a little indigestion). The only payment goes to the produce department, who never ask for a commission!

(By the way, you guys in the U.S. should count your lucky stars! Here in France the question of model releases are (to me) a nightmare; a photographer is obliged to stay in touch with the model and get permission for each and every use of the image for ... I don't remember how many years. Any French photographers reading this are welcome to correct or contribute information)

Best,

Christopher
American in Paris produce markets

PS - yes, of course I shoot portraits, too... but of vegetarians!
.