for valuable consideration received...

BrianShaw · Sep 7, 2006

Roger Hicks said in another thread:
"There's also a lot of twaddle being talked about model releases. In this situation, the sort of model release most people would use would be the standard release of all rights in return for valuable consideration received (which can be almost anything, for example, a penny, a print, a beer or reciprocal agreement to be a model). Without valuable consideration a model release has no force, at least in any jurisdiction with which I am familiar, because it's not a valid contract, the elements of which are offer, acceptance and consideration. With the kind of release I describe, he wouldn't get anything anyway."

My experience has been that most photographers don't even know that this expression indicates an exchange between the two parties and assumes that simply getting the model/subject to sign gives them full rights to usage.

I've wondered for a long time... what "valuable consideration" do most non-professional photographers offer a model/subject when asking them to sign a model release?

Roger Hicks · Sep 7, 2006

Dear Brian,

Legally, ANYTHING is acceptable. The classic example of a valid contract is selling a Rolls Royce for a penny. It doesn't have to be an equitable contract...

A print is usually best, except that if something goes wrong and you don't get an image, you can't do that one.

A foreign coin has amusement value, no matter how small its worth: I use to have a supply of kopeks for this very purpose.

If the model signs a release, it is quite hard for them to prove that you did not give them something. This is where something memorable -- a print, a kopek, an unusual cocktail -- is a good idea. Once consideration has been given, and is remembered, the model has to lie, and gratifyingly many people are uncomfortable with this even today.

Generally, if they're friends, I don't bother. A model release can restrict what you can do with a picture, more than the common law does. Besides, a lot of my friends are photographers, and we photograph each other.

The most famous story of a model who was never paid a penny is the short-skirted tennis girl with no knickers on, scratching her bum. To the best of my recollection, which may well be at fault, a young man photographed his girlfriend; there was no model release; and when they split up (as I believe they did), that was the end it...

Cheers,

Roger

rbarker · Sep 7, 2006

My guess would be similar to Roger's - one or more prints from the shoot being the "consideration" for the release. Hence, the origin of the term "TFP" - time for prints - which has evolved to TFCD - time for CD. Now, with Roger's input, we can add "TFK" - time for kopeks.

juan · Sep 7, 2006

Oh, Roger, how sadly modernist and behind the times you are. When you and I went to law school, things such as consideration mattered. Now in the post-modernist world, particulary in these days of feminist legal theory, feelings are all that matter.
juan

vanspaendonck · Sep 7, 2006

Just in case anyone ever shoots models in Europe and needs a release form, forget about the consideration bit. A release without any consideration being mentioned is valid in all EU countries (except for the UK of course, as always) and some more. Thank you Napoleon Bonaparte for the Code Civile, on which the system of law of most countries in Europe is still based. However if the form says that the release is governed by English law or the law of some US state (except for Louisiana I believe), the above may not be true anymore. Do yourself a favour and stipulate that the laws of Transsilvania apply and all conflicts should be brought before the Grand Mufti of Zagreb or something....

Roger Hicks · Sep 7, 2006

vanspaendonck said:
Do yourself a favour and stipulate that the laws of Transsilvania apply and all conflicts should be brought before the Grand Mufti of Zagreb or something....

I was intrigued to learn about the fact that there is no need for consideration. I'm not arguing -- I'm merely ignorant -- but I am surprised that this works in all Europe (except the UK -- and even that may have changed...).

However, the last part strikes me as a commercial opportunity: I wonder if anyone has yet registered grandmuftiofzagreb.com and set up as an arbitrator...

Cheers,

Roger

Joe Symchyshyn · Sep 7, 2006

A contact sheet(s) after the shoot can be the valuable consideration, if discussed prior to the shoot. That's what I do on TFP shoots.

joe

Roger Hicks · Sep 7, 2006

juan said:
feelings are all that matter.
juan

Yes... so we demand recompense for hurt feelings. Once we have established 'feelings' as legal currency, can someone else then sue us for recompense if they make us laugh?

For some reason this reminds me of a wonderful T-shirt I saw a few weeks ago in northern Portugal: MY EGO IS BIGGER THAN YOUR EGO.

Such, as you say, is the state of the law today.

Cheers,

Roger

arigram · Sep 7, 2006

Does a kiss count? Oh, nevermind, I am in the EU, I can rightufully take advantage of my models for not even a measly peck on the cheek...

Claire Senft · Sep 7, 2006

Personally, I have 2 thoughts. That valuable consideration spells out exactly what is being given in exchange. That the exchange is more generous than miserly.

MattKing · Sep 7, 2006

Just carry around a package of those little red legal seals, affix it to the Release, and have the model touch it when he/she signs (the Release should indicate that it is signed under seal).

A contract signed under seal is said to supply its own consideration.

Alternately, include a promise of some value (no matter how slight) from the photographer, and have the photographer sign as well.

It all goes back to the mists of time, when the (English) law would only enforce bargains, not mere promises.

Now back to the work on my desk...

Matt

SuzanneR · Sep 7, 2006

I think a lot of portrait photographers offer "time for prints" when the start to build a portfolio or a discount on sitting fees and prints when they are adding to a portfolio and want to use the images in their own marketing. I know I did that!

One photographer I've met, Andrea Modica, photographed a young girl, Barbara, and her family over a period of ten years. She's published two books, "Treadwell" and "Barbara" with this work. She says she offers 10 percent of her profits to the people she photographs, and I think she gives them prints from time to time.

That struck me as fair and ethical.

Roger Hicks · Sep 7, 2006

MattKing said:
A contract signed under seal is said to supply its own consideration.
Matt

Dear Matt,

Elegant! I only half-recall that argument, but I'm pretty sure you're right. Wasn't signing over a postage stamp regarded the same way?

Cheers,

Roger

Photo Engineer · Sep 7, 2006

If you plan on modeling, a print would go well in your portfolio, especially a prize winner.

PE

Ole · Sep 7, 2006

Last time I needed a model release, I sat down with an English "standard form". Then I deleted evrything I didn't want to worry about, translated the result to Norwegian, cut some more, and translated the remains to English again.

That made for a very short contract, but also one which is easily translatable and pays no special consideration to either country's special laws.

MikeSeb · Sep 7, 2006

Roger Hicks that was the end it... [/QUOTE said:
So to speak....

Steve Smith · Sep 7, 2006

Another aspect of this is that the item of valuable consideration can also be a promise not to do something. e.g. not use the image for a particular purpose.

Steve.

BrianShaw · Sep 7, 2006

Ole said:
That made for a very short contract, but also one which is easily translatable and pays no special consideration to either country's special laws.

So what did it end up saying, Ole... "I take yur pictyure..OK? Sign here_____"

zenrhino · Sep 7, 2006

Thanks to everyone for input on this whole model release topic (in both threads). I'm shooting my first model next week, so this is very helpful indeed.

copake_ham · Sep 7, 2006

"CONSIDERATION:

The inducement to a contract. The cause, motive, price or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. Some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other."

Black's Law Dictionary, Sixth Edition, 1990

1) The above definition does not require, nor does it preclude, monetary remuneration.

2) Juan, other than suffering from a severe case of misogyny what would lead you to claim that feminism is the reason why contractual consideration no longer requires monetary recompense? It hasn't for a long time - if ever.

3) I usually see non-monetary consideration in the course of contractual arrangements b/w financial institutions (e.g. the inducement for two or more banks to enter into an Intercreditor Agreement). Seriously, you don't think we're still supposed to go through the fiction of exchanging a dollar (or some other meaningless monetary sum) in order to effect a contract?

4) Seals - quaint English common law concept. Perhaps still required in UK and Canada - not so in U.S. These days we close a transaction via a signature page exchanged via a scanned .PDF file.

MattKing · Sep 8, 2006

copake_ham said:
4) Seals - quaint English common law concept. Perhaps still required in UK and Canada - not so in U.S. These days we close a transaction via a signature page exchanged via a scanned .PDF file.

Actually George, in the common law provinces of Canada, seals are almost never required, but in certain situations they are highly advantageous, so we use them.

We most often use seals when it is unclear whether there is an exchange of valuable consideration, and thus the enforceability of the agreement could be called into question. A model release is an excellent example - if the model isn't paid, and is otherwise receiving no benefit, there is a real argument that nothing of value has flowed to the model, so the "bargain" shouldn't be enforced.

The seals I use aren't fancy - they are little red stickers, about the size of a dime.

I use them regularly in my estates practice, because I have beneficiaries sign releases, and there is an argument that the inheritances they receive are rights that have vested previously, thus there is no new consideration flowing to them in return for the signed release, etc., etc. etc.

Of course, there are jurisdictions that have modified the common law rules concerning consideration by statute, but as far as I am aware, that is less common than you might think.

By the way, I find your reference to a "quaint English Common law concept" quite entertaining. One of the things that I've learned from doing some comparative legal research, is that very often the provisions in law in the older United States are older ("more quaint??") than the comparable provisions in English and Canadian law. That appears to flow from the fact that between the time of the American revolution (1776), when the USA took over responsibility for its own jurisprudence, and the creation of the Dominion of Canada (1867), when Canada took responsibility for its own jurisprudence, there was about 100 years of quite radical change in English law. In essence, our starting point was about 100 years later, and both of our systems of law still retain a lot from when we started.

Naturally, both systems have undergone hugely important changes in that time as well (e.g. your UCC) but there is still evidence of the differing roots.

The most obvious (as in regularly shown on TV) example - many of your states still use the grand jury in criminal proceedings. The grand jury was used in England in the 1700s, but by the time Canada got its own Criminal Code, it had fallen out of use, so it is essentially unknown in our law.

Matt

BrianShaw · Sep 8, 2006

copake_ham said:
"CONSIDERATION:

The inducement to a contract. The cause, motive, price or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. Some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other."

Black's Law Dictionary, Sixth Edition, 1990

1) The above definition does not require, nor does it preclude, monetary remuneration.

George, since you passed the bar (and I only pass bars that serve alcohol) would you please comment on any legal assumpptions associated wit the term "valuable" when used with 'consideration'. Is a kopek and a smile really "valuable"?

copake_ham · Sep 8, 2006

MattKing said:
Actually George, in the common law provinces of Canada, seals are almost never required, but in certain situations they are highly advantageous, so we use them.

We most often use seals when it is unclear whether there is an exchange of valuable consideration, and thus the enforceability of the agreement could be called into question. A model release is an excellent example - if the model isn't paid, and is otherwise receiving no benefit, there is a real argument that nothing of value has flowed to the model, so the "bargain" shouldn't be enforced.

The seals I use aren't fancy - they are little red stickers, about the size of a dime.

I use them regularly in my estates practice, because I have beneficiaries sign releases, and there is an argument that the inheritances they receive are rights that have vested previously, thus there is no new consideration flowing to them in return for the signed release, etc., etc. etc.

Of course, there are jurisdictions that have modified the common law rules concerning consideration by statute, but as far as I am aware, that is less common than you might think.

By the way, I find your reference to a "quaint English Common law concept" quite entertaining. One of the things that I've learned from doing some comparative legal research, is that very often the provisions in law in the older United States are older ("more quaint??") than the comparable provisions in English and Canadian law. That appears to flow from the fact that between the time of the American revolution (1776), when the USA took over responsibility for its own jurisprudence, and the creation of the Dominion of Canada (1867), when Canada took responsibility for its own jurisprudence, there was about 100 years of quite radical change in English law. In essence, our starting point was about 100 years later, and both of our systems of law still retain a lot from when we started.

Naturally, both systems have undergone hugely important changes in that time as well (e.g. your UCC) but there is still evidence of the differing roots.

The most obvious (as in regularly shown on TV) example - many of your states still use the grand jury in criminal proceedings. The grand jury was used in England in the 1700s, but by the time Canada got its own Criminal Code, it had fallen out of use, so it is essentially unknown in our law.

Matt

Matt,

I presumed that the "seals" thing was really a matter of form rather than substance - there are certain "accoutrements of the trade" which clients (having watched too many movies and tv shows) expect to see when dealing with a lawyer. Heck, no one ever looks up case decisions in the bound "reporters" any more (that's why we have Lexis/Nexis!) but still looks impressive to have shelves of them in the conference room where you meet the client. .

I work for an international bank on transaction-based docs. We just closed (along with a zillion and three other banks) deals with both Hydro Quebec and the Province.

Now there, of course, it is not an English C.L. jurisdiction. But, looking at the historical timeline, I always been curious exactly what is the basis of Quebec civil law? The quick answer I hear is that it is based on the Napoleonic Code. But the British took over Quebec in 1763 - long before the Napoleonic Era. So perhaps Quebec's civil law is based on pre-Napoleonic France?

But then, since for many years the English were a large minority in Quebec, it is difficult for me to see how they would have not sought the "protections" of English common law? It's been a long time since I studied the histories of Lower and Upper Canada. Was their a two-tier justice system in pre-1867 Lower Canada? If so, did it continue post-Confederation?

As to the migration over time from common to statuatory law - based on 51 separate jurisdictions (50 states + DC) it's not surprising to see significant variations and continuing vestiges of earlier forms. Your point about the Grand Jury is one. My brother-in-law just retired from the bench in Tennessee after nearly 30 years. He served on their Chancery Court. It is the old court of equity - which is still used there. In New York, we merged the courts of law and equity many years ago.

And remember, when you get out to the US southwest you have other variations - such as the community property concept.

And I just got through dealing with explaining to our real estate folks in Munich that Mortgages and Deeds of Trust are the same - just different!

To some extent these variations are interesting in their own right - and they do provide for full employment for "local counsel" when you are doing a multi-state deal!

Going back to the original thread concept of "consideration" and the atavistic views of some - I was wondering if in R/E deals we should go back to the procedure whereby the feeofer of the land to be transfered should be required once again give the feeofee a clump of dirt from said real property so that the latter may be truly seised of the land?

Could get messy at the closing table.

joeyk49 · Sep 9, 2006

Could "valuable consideration" be a heartfelt "Thank You"???

MattKing · Sep 9, 2006

joeyk49 said:
Could "valuable consideration" be a heartfelt "Thank You"???

It's of great value, but not likely recognized as such by the law!

It needs some sort of market value, even if slight. Traditionally, there are many references to peppercorns being nominal consideration, but those arose in the context of a world where peppercorns had to be imported to England, from a great distance away.

In the case of a model release, a promise to credit the model whenever the photo was used might have sufficient market value, if the model was a professional.

Matt

for valuable consideration received...

BrianShaw

Roger Hicks

rbarker

juan

vanspaendonck

Roger Hicks

Joe Symchyshyn

Roger Hicks

arigram

Claire Senft

MattKing

Moderator

SuzanneR

Moderator

Roger Hicks

Photo Engineer

Ole

Moderator

MikeSeb

Steve Smith

BrianShaw

zenrhino

copake_ham

MattKing

Moderator

BrianShaw

copake_ham

joeyk49

MattKing

Moderator

for valuable consideration received...

Moderator

Moderator

Moderator

Moderator

Moderator

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