How about this model release?

[Ed Sukach]

... What happens if you have a really great Art Photo that you know will make you lots of fortune/fame but they don't like it and refuses to sign the 'second' release for 'unreasonable reasons'?

So far, it hasn't happened. I'm usually - more often that that - I have ALWAYS been more sensitive to the content than the models. Of course there is a chance of disagreement - I'd probably cry and scream and moan - but the model WILL have the final say.

There is a lot of preparation that goes into a photography session - especially one dealing with nudes. We both have to agree to what the "theme" of the session will be, and I always show the model my work - both on the walls and in my portfolio. I take great care to make the agreement to "work together" and "what will be done" clear to both of us ... so there haven't been any "five o'clock" surprises.

For most other uses, this might be so cumbersome that nothing would ever get published.

Simple solution: Get another Release, specifying that particular use. I have "been published" - and it is difficult to envision pens with a greater velocities than those in the hands of models signing such a release... for a magazine like "Elle".

In these situations I tend to agree with what the last couple of posters said: in public almost anything is fair game and "I don't know nuttin'".

Well - look at the bright side - Lawyers have to eat ... uh... drive Porsches ... too!

 

[Paul Sorensen]

How about:

"For value received, I irrevocably relinquish my rights to any future profits or other additional compensation and, hereby consent to the publication and public showing of my photograph(s) used by David B, whether or not with my name or any text, captions, illustrations whatsoever, and additionally I unconditionally release David B from any and all liability for such use in any and all media."

I would assume that this wouldn't get you very far in court since it is not at all clear that the value received will be considered "consideration" for the purposes of a contract. The issue I have is the permanent nature. Without the permanent nature, if it just has the language of the first and second releases posted by David, there is no need for consideration to have been received, it is not a contract, only a statement of permission being granted.

Edit: I am not a lawyer, I have just read enough to be dangerous.

 

[jstraw]

"News" use - wherever, has been judged to be protected from the Copyright Law, as a matter of "Freedom of the Press - under the Constitution of the United States. Elsewhere --- I do not know.

Simply because it is done "In a Public Place" does not exempt a Model - or anyone - from a reasonable share of the proceeds derived from their participation in the activity.

An example ... Heidi Klum models clothes for Dior, on a public beach in Miami. The images are published in Cosmo.
Not "news", and you bet your life she and many others will share in the projected proceeds from the shoot.

Heidi Klum trips and falls into a hot dog stand on the same public beach in Miami... and the image is published in the Enquirer.
"News" - and she probably will NOT be paid for the image.

I don't think copyright is the issue. I'm pretty sure that in all cases in your example the ownership of the copyright resides with the photographer and/or the publisher. The subject of the photograph hasn't (in most cases, think Cindy Sherman) a stake in the copyright.

To use your examples, I'm pretty sure I can't publish a poster of the hot dog entanglement and profir from it, unilaterally (or can I?). But can I also not hang it is a show or sell a print? I need guidance.

I'm not into gratuitous CYA. If I need releases I'll get them or not shoot images that require them. If I don't actually need them, for say...street photography then I really, really don't want to spend energy on them.

I know MANY a news photographer that have hung shows of their work and can guarantee you that releases were few and far between. I can't really imagine that if they were necessary, the fact that an image was originally created as news would exempt it from required releases, should it be used for something else later on.

 

[Ed Sukach]

A LOT DOES depend on the initial motivation: News remains "news". One can "publish "news" current or old, and the character of the work does not change; it is still "news". Whether or not money can be made from its use is not relevant - the sales of millions of additional newspapers can be attributed to the use of one single "news" photograph.

I am guilty for confusing "Copyright Law' with "Civil Law". The use of an image of anyone my be tested under laws governing libel, slander or invasion of privacy.

Let me see what I can do here:

Invasion of Privacy: Stick a camera into a toilet, where someone has a reasonable expectation of privacy and photograph them - That is Invasion of Privacy.

Libel: Take a photograph of a politician checking the air in his tires, and publish it with the caption, "AB Lets the Air Out of His Opponents Tires" - a LIE. That is Libel.

Slander: Take a truthful photograph of a prominent politician with his fly open, and publish it without comment. True - it did happen, but the photograph shows him in an unreasonably "bad light" - bad enough to damage his reputation. That is Slander.

No reputable publication, nor an editor with an IQ exceeding his/her hat size - or a photographer with the same qualification - will welcome a law suit based on any of these... so to REDUCE the risk, we have Model Releases.

Now, I am NOT an Attorney! My only qualification is having been close to some of the affected activity, while keeping my eyes open.
I will welcome comments from ALL of those in the Legal profession.

As far as monetary compensation to the model ... It must pass the test of "reasonable". It is doubtful that one Polaroid "test shot" given to a Model for the use of her image use in a National Advertising Campaign would be considered "reasonable compensation".
What is? There we must search the precedents established in prior cases. That is the "bull work" performed by Junior Partners, Paralegals ... and if the truth be known ... Legal Secretaries.

 

[BrianShaw]

Ed, I'm not a lawyer and certainly not an expert in defamation... but I'm not sure you have "slander" right. My impression is that slander is transitory defamation... basically verbal in nature whereas libel is something more fixed, like published materials. I think the pic of the politicial with the open fly would be news, but if captioned "politician tries to increase votes by opening the barn door", then maybe it would be libel.

By the way, it seems like a lot of defamation threats (if not real actions) are the result of embarassment. To the best of my knowledge, embarassing someone isn't a crime unless they have really been harmed by that embarasment.

 

[jstraw]

Scenario:

A photographer is working on an asignment for a pictorial magazine on city life. He photographs an apple vendor and the image is published as part of the story. Did he need a release from the apple vendor?

A year later the photographer hangs a show in a gallery and the prints will be available for purchase. He includes the image of the apple vendor. Is a release from the subject required?

Several years after that, a company that sells mass produced "art prints" in cheap frames for home decor asks to license the image for use in their product line? Is a release needed from the apple vendor?

 

[BrianShaw]

Scenario:

I'm thinking "no" to all of your questions.

 

[copake_ham]

Scenario:

A photographer is working on an asignment for a pictorial magazine on city life. He photographs an apple vendor and the image is published as part of the story. Did he need a release from the apple vendor?

A year later the photographer hangs a show in a gallery and the prints will be available for purchase. He includes the image of the apple vendor. Is a release from the subject required?

Several years after that, a company that sells mass produced "art prints" in cheap frames for home decor asks to license the image for use in their product line? Is a release needed from the apple vendor?

I'm thinking "no" to all of your questions.

I'm thinking I agree with Brian so long as the photog shot the apple vendor as "street" (i.e. never asked him to pose - even if the vendor, seeing he was being shot "chose" to strike a pose).

Now if the apple vendor was located in certain cultures where taking a picture is akin to stealing one's soul - the photog may have greater problems than can be released via a "model release"!

 

[jstraw]

Ok, so now imagine the photographer making the same image has the intention of selling the image to the "home decor" reseller from the get go. He isn't a journalist and he doesn't hang shows in galleries. Is the answer different?

 

[BrianShaw]

More imagining

Probably not. The only thing that would make it different in my mind is if the apple vendor was a hired actor/model and the apple cart was a set.

I've heard about celebs who claim to have all rights to any usage of their image ( :rolleyes: ), even if captured in a public setting ... but in general I think that "right" is a figment of their imagination.

 

[jstraw]

By my way of thinking one seldom ever needs to be concerned with model releases unless one is manipulating the activity of the subject (ie: making them a "model") or the person is a public figure who's image has intrinsic value.

Asking for signatures on model release forms for street photography is a lot of bother over nothing, imho.

 

[BrianShaw]

By my way of thinking one seldom ever needs to be concerned with model releases unless one is manipulating the activity of the subject (ie: making them a "model") or the person is a public figure who's image has intrinsic value.[/]

Asking for signatures on model release forms for street photography is a lot of bother over nothing, imho.

I agree with your opinion, except one. I don't think public figures have any more rights than the rest of us, nor any real control over how a legally-gathered image of them is used... so long as there is no harrassment in gathering the photo or defamation in its use. Maybe I'm wrong, but I'd be surprised if I were. Courtesy and allowing those with public images is a totally different subject, of course!

 

[Ed Sukach]

Scenario:
A photographer is working on an asignment for a pictorial magazine on city life. He photographs an apple vendor and the image is published as part of the story. Did he need a release from the apple vendor?
A year later the photographer hangs a show in a gallery and the prints will be available for purchase. He includes the image of the apple vendor. Is a release from the subject required?
Several years after that, a company that sells mass produced "art prints" in cheap frames for home decor asks to license the image for use in their product line? Is a release needed from the apple vendor?

I would say the "Apple Vendor" has a valid claim for "fair compensation" from all three. The only question I would have is the "pictorial magazine", and whether or not the photograph could be classified as news.

I think it would be accurate to note that "Compensation" in these cases might not amount to very much ... likely, not enough to justify pursuing a law suit.

Rule of thumb: If money was mage. or there was a reasonable expectation that there would money made from the use in the future - a Model Release would be highly desirable.

Another example:

A model accepted an assignment that she was led to believe would be used in Advertising Copy for "bedding" - sheets, pillows, furniture (beds and mattresses). She posed wearing negligees, - the usual sensuous sleepwear - that sort of thing. She was paid, and signed a Model Release - the usual "boilerplate" deal - "Any and all uses, no matter how humiliating or degrading ..."

Some months later, she stopped by her local Video Shop and found HER image - complete with negligee and bedding - emblazoned on the cover and back of an XXXX - rated Video - with the title of something like: "Debbie Does Cleveland Airport".

Does anyone have an opinion of what would happen if she took the case to Court?

 

[jstraw]

I would say the "Apple Vendor" has a valid claim for "fair compensation" from all three. The only question I would have is the "pictorial magazine", and whether or not the photograph could be classified as news.

I think it would be accurate to note that "Compensation" in these cases might not amount to very much ... likely, not enough to justify pursuing a law suit.

Rule of thumb: If money was mage. or there was a reasonable expectation that there would money made from the use in the future - a Model Release would be highly desirable.

Another example:

A model accepted an assignment that she was led to believe would be used in Advertising Copy for "bedding" - sheets, pillows, furniture (beds and mattresses). She posed wearing negligees, - the usual sensuous sleepwear - that sort of thing. She was paid, and signed a Model Release - the usual "boilerplate" deal - "Any and all uses, no matter how humiliating or degrading ..."

Some months later, she stopped by her local Video Shop and found HER image - complete with negligee and bedding - emblazoned on the cover and back of an XXXX - rated Video - with the title of something like: "Debbie Does Cleveland Airport".

Does anyone have an opinion of what would happen if she took the case to Court?

When you read "pictorual magazine," think National Geographic. Those shooters are photojournalists.

In your scenario, the model has no recourse. She signed away all rights.

 

[copake_ham]

By my way of thinking one seldom ever needs to be concerned with model releases unless one is manipulating the activity of the subject (ie: making them a "model") or the person is a public figure who's image has intrinsic value.

Asking for signatures on model release forms for street photography is a lot of bother over nothing, imho.

I agree with your opinion, except one. I don't think public figures have any more rights than the rest of us, nor any real control over how a legally-gathered image of them is used... so long as there is no harrassment in gathering the photo or defamation in its use. Maybe I'm wrong, but I'd be surprised if I were. Courtesy and allowing those with public images is a totally different subject, of course!

Brian has pretty much nailed it again except I'd add that, if anything, the public figure has fewer rights than someone else.

If you choose to make yourself a person of "noteworthiness" (i.e. become a "public figure") your very persona and image can well be considered "newsworthy".

This is the big thing with the "papparazzi" controversy. For example, a famous star cannot obtain "publicity" in a controlled format (e.g. a PR or studio release) and then legally object when her/his image becomes a popular one such that his/her daily comings and goings become "newsworthy events".

Simply put, there is a downside to become a "celebrity" - you lose privacy.

 

[Ed Sukach]

In your scenario, the model has no recourse. She signed away all rights.

I know one National Geographic photographer who had extensive aerial photographs of the Kalihari Desert published. I asked him - he did not consider himself a "photojournalist", nor his photography, "news".

About the Release:

Directly from the "Professional Photographer's Survival Guide", by Charles E. Rotkin, ISBN 0-89879-554-0; p284:

... "There has been litigation concerning advertising photographs when the model or photographer has charged that the pictures published were not for the use intended at the time they were made. In one well-publicized incident, a model posed for an advertising photograph while 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 did not intend to allow her photograph to be used in this suggestive manner and felt that the ad did cast her in an unfavoravble light."

My example was simplified and intensified.

A Model Release is a contract, not a license to kill. If you exceed certain limits - most noticeable to me, are those of "good faith" - it is no longer a valid contract.

Rotkin wrote a really good book here. I'd suggest that everyone intending to sell their photographs buy one - and read it.

 

[jstraw]

I know one National Geographic photographer who had extensive aerial photographs of the Kalihari Desert published. I asked him - he did not consider himself a "photojournalist", nor his photography, "news".

About the Release:

Directly from the "Professional Photographer's Survival Guide", by Charles E. Rotkin, ISBN 0-89879-554-0; p284:

... "There has been litigation concerning advertising photographs when the model or photographer has charged that the pictures published were not for the use intended at the time they were made. In one well-publicized incident, a model posed for an advertising photograph while 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 did not intend to allow her photograph to be used in this suggestive manner and felt that the ad did cast her in an unfavoravble light."

My example was simplified and intensified.

A Model Release is a contract, not a license to kill. If you exceed certain limits - most noticeable to me, are those of "good faith" - it is no longer a valid contract.

Rotkin wrote a really good book here. I'd suggest that everyone intending to sell their photographs buy one - and read it.

The fact that you "intensified" your example means little. Based on your example: "...signed a Model Release - the usual "boilerplate" deal - "Any and all uses, no matter how humiliating or degrading ..." I stand by my statement. She'd have no recourse.

If the actually release was less broad, then that's different.

The Geographic shooters I have known are all photojournalists with with newspaper backgrounds. Some people that shoot for the magazine are not journalists. The magazine is journalism and for the most part, the photography in its pages is photojournalism. This is another topic though...

 

[Ed Sukach]

The fact that you "intensified" your example means little. Based on your example: "...signed a Model Release - the usual "boilerplate" deal - "Any and all uses, no matter how humiliating or degrading ..." I stand by my statement. She'd have no recourse.

I admire your tenacity.

Charles E. Rotkin has an impressive resume' - one of a Photographer who has been in the "thick of things" - over, under, and THROUGH the hill many times.

Obviously this will NOT be a win-win discussion, so I'll only repeat the advice to BUY THIS BOOK! The material in there - one way or another - has saved a SIGNIFICANT portion of my gluteus maximus a number of times.
It has even saved visits to my Attorneys, by providing a general framework for what is reality concerning Copyright Law, Model and Property Releases, `Work for Hire', Publication ...

I'll only say that this is a COMPLICATED area of the Law. What seems "simple" to the layman, can be extremely convoluted and tangled.

After the dust settles, my advice: Be a good guy; Don't try to hurt anyone, for any reason. Don't try to cheat anyone out of their share of the pie. Act according to the "Golden Rule".
It is a free country ... follow that advice or don't. Your choice.

People being what they are, you will, occasionally be attacked by Cretins mumbling omething about "A jungle out there". Your best defense will be to refuse to be part of the predator group.

 

[jstraw]

My tenacity tends to win me both admirers and well...non-admirers. ;-)

My only point was that I was responding to what you actually posted, not knowing it had been intensified.

I'm I could stand to know the legal nuances better than I do.