One for the lawyers (and other fans of the judiciary)

David H. Bebbington · Oct 17, 2007

This case has been apparently becoming known for a little while but has just been featured in this week's British Journal of Photography:
http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003642941
An absolute classic case which give the perfect answer to the question "Why bother with model releases?" The subject, if he signed a release at all, was imagining his image would be used innocently to publicize the State Fair, it ended up being used in a way which I have no doubt a court would find highly defamatory, and it's seconds out for a heavyweight legal slugfest!

jovo · Oct 17, 2007

"Of the lawsuit, Warwick says it seems the lawyer is "just throwing everything up against the wall and seeing what sticks." He adds, "If this guy gets five or ten thousand dollars, he should count himself lucky."

Ha! Mr. Warwick has a lot to learn.

juan · Oct 17, 2007

A greeting card is a commercial use of the photograph - that's always construed more strictly than editorial use. It would appear the farmer posed for the picture and consented to one use that was probably editorial (promotion of the Virginia State Fair), but that the photo was used commercially on the greeting card. I don't know Virginia law, but the general rule followed in most US states, it that consent to commercial use must be specific.
juan

SuzanneR · Oct 17, 2007

Yes... I think releases, though good to get, won't cover all possible uses. The problem is often with what is written with the photograph, not the image itself. Even for editorial uses, we used to get releases whenever possible at the magazine I worked for, but I was always careful about the caption information with the photograph, even with a release.

A release doesn't give you a license to make someone appear to be a fool.

gr82bart · Oct 17, 2007

I'll bet the conversation with the farmer was: "We're just using it for the State Fair promos" and I bet the language of the release was "Photographer has the right to use the image for whatever he/she wants."

If true, the photographer was misleading and the farmer didn't read (or understand what he read).

Regards, Art.

copake_ham · Oct 17, 2007

gr82bart said:
If true, the photographer was misleading and the farmer didn't read (or understand what he read).

Regards, Art.

Art,

Legally, this is a meaningless distinction. Failure to read or understand the terms of a contract is not a legitimate defense. Unless the farmer wants to prove he is an imbecile (since he is clearly not a minor) he has no defense based on misunderstanding the terms of a contract.

Minors and imbeciles are protected; but even drunks can be held to a contract, including one hastily drawn up on a cocktail napkin.

Lee Shively · Oct 17, 2007

The article doesn't indicate with any certainty that there ever was a release. Unless a signed release is produced, this guy will likely "goose" all the other parties involved.

gr82bart · Oct 17, 2007

copake_ham said:
Minors and imbeciles are protected; but even drunks can be held to a contract, including one hastily drawn up on a cocktail napkin.

What about the goose?

Regards, Art.

David H. Bebbington · Oct 17, 2007

Lee Shively said:
The article doesn't indicate with any certainty that there ever was a release. Unless a signed release is produced, this guy will likely "goose" all the other parties involved.

Since suit was filed on September 12, and producing a valid model release would blow the farmer's case right out of the water, it would be a fair guess that the Burwells, the photographers in the case, don't have or can't find any such release!

Regards,

David

Ian Leake · Oct 17, 2007

David H. Bebbington said:
Since suit was filed on September 12, and producing a valid model release would blow the farmer's case right out of the water, it would be a fair guess that the Burwells, the photographers in the case, don't have or can't find any such release!

Regards,

David

There seem to be two lessons to learn here. Firstly, if you get a release then make sure you file it properly. And secondly, if you don't get a release then don't pretend you have one in order to make a fast buck.

gr82bart · Oct 17, 2007

Can you hear the headlines now on that old TV show the People's Court? The case of "The goose that laid the golden egg".

Regards, Art.

TheFlyingCamera · Oct 17, 2007

Or on Judge Judy, "Getting the ganz from the gander!"

Ed Sukach · Oct 17, 2007

copake_ham said:
Legally, this is a meaningless distinction. Failure to read or understand the terms of a contract is not a legitimate defense. Unless the farmer wants to prove he is an imbecile (since he is clearly not a minor) he has no defense based on misunderstanding the terms of a contract.
Minors and imbeciles are protected; but even drunks can be held to a contract, including one hastily drawn up on a cocktail napkin.

I dislike arguing legal matters with anyone involved professionally with the law ... but ....

Charles E. Rotkin in The Professional Photographer's Survival Guide cites a case where a model signed a Model Release relating to a series of photographs taken of her in sleep ware (scanty negligee, etc,) with the understanding that the end use would be for advertising purposes ... sheets, pillows, blankets, mattresses ... like that. The release she signed was "boilerplate" ... "for any and all uses, including degrading, illegal, defamitory ..."

Some months after the shoot, she visited a local Video Rental shop, and behind the swinging doors, there was a tape in a box, rated XXXX +, with a photograph from that session, of her, on the cover.

She sued, claiming a Breach of Good Faith - they had misrepresented the INTENT of the session to her.

The Court agreed ... and she WON, big time.

A Model Release IS a contract ... and all the rules pertaining to Contract Law apply.

Roger Hicks · Oct 17, 2007

Ian Leake said:
There seem to be two lessons to learn here. Firstly, if you get a release then make sure you file it properly. And secondly, if you don't get a release then don't pretend you have one in order to make a fast buck.

Third, have some respect for your subjects, especially if they are not professional, paid models signing unlimited releases.

Fourth, phrase your release properly. My broadest release states that the model will be taken to be an imaginary person, so the pic can be used for anything.

Of course a written contract may be varied verbally, as pointed out above, but it's a bugger to prove that this was the case.

Cheers,

Roger

Ian Leake · Oct 18, 2007

Roger Hicks said:
Third, have some respect for your subjects, especially if they are not professional, paid models signing unlimited releases.

I agree with this one 110%. If you say one thing ("it's just for the county fair" - if that's what was said - or "it's commercial but just for selling duvets") and then do something very different then you have a problem with your personal ethics and deserve a good slap.

Tomasz Segiet · Oct 29, 2007

Of course, the farmer was conned/exploited/ridiculed etc.; but still another thing is the madness we seem to live in behind the claim for $23 million reparations. Or maybe it is the madness of USA; but it's spreading quick.

copake_ham · Oct 29, 2007

Ed Sukach said:
I dislike arguing legal matters with anyone involved professionally with the law ... but ....

Charles E. Rotkin in The Professional Photographer's Survival Guide cites a case where a model signed a Model Release relating to a series of photographs taken of her in sleep ware (scanty negligee, etc,) with the understanding that the end use would be for advertising purposes ... sheets, pillows, blankets, mattresses ... like that. The release she signed was "boilerplate" ... "for any and all uses, including degrading, illegal, defamitory ..."

Some months after the shoot, she visited a local Video Rental shop, and behind the swinging doors, there was a tape in a box, rated XXXX +, with a photograph from that session, of her, on the cover.

She sued, claiming a Breach of Good Faith - they had misrepresented the INTENT of the session to her.

The Court agreed ... and she WON, big time.

A Model Release IS a contract ... and all the rules pertaining to Contract Law apply.

Ed,

You've cited this "case" before and I don't doubt the model won. Not knowing the specifics of the case I can only speculate from your fact pattern.

There is the possibility of bringing parol evidence (i.e. oral terms and conditions) into a contracts dispute. The legal hurdle is relatively high to gaining admissibility of such evidence - and you cannot win solely on parol evidence - but as supporting evidence it can be admissible. However, parol evidence can only be applied when it is shown to have been agreed-upon after the written contract was entered into.

So, on you facts, it would appear that, after executing the original model release, the parties orally agreed to the limitation you cite. If the model can prove this post-writing oral condition - then yes, she can prevail by showing that the subsequent oral agreement terms were violated.

Apparently it was in the case you cite and it was critical to moving the burden of proof from the plaintiff to the defendant.

One for the lawyers (and other fans of the judiciary)

David H. Bebbington

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