Profit sharing with the model?

You need a release if you are going to sell/publish photos of people taken in private situations. Public places another grey area. (Bresson didn't get many model releases, he did get some id's for editorial work). Most of my career is editorial work of willing participants or people in public places and I don't mess with a release, and I do not find it ethical to "pimp" my subjects for stock photo sales, as they were just regular folks that I am telling the story of. (don't mean to say stock houses are bad)
Now a Chemical Company sent me to 12 states this year to photograph people for a publication, we did get a model release from each of them to confirm that they knew they were going to be quoted and photographed... I was not involved in the compensation, and again I don't plan on (nor should I) use the photos for any other use.

RE OP's photo
IF that were a photo of someone famous or "exotic" I think it would be more "saleable" and then the release spelling out additional compensation IF any would be needed.

As I understand it there are three factors that truly matter.

Commercial use; stock photos, advertising, and the like should have releases.

Art; Cartier-Bresson type stuff. Basically anything shot in a public space and sold as art, generally no release. Shooting on private property complicates the issues.

News; in a Bonafide news organization if they can get a shot they can use the shot as news. They can't stick it in an ad for a clent though without a release.

markbarendt said:

Art; Cartier-Bresson type stuff. Basically anything shot in a public space and sold as art, generally no release. Shooting on private property complicates the issues

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Only shooting on private property in which photography is a no-no complicates the issue. Photography being barred gives the people there on the private property, and the property itself, a reasonable expectation of privacy. If photography is allowed in the place, there is no issue, as people there have no reasonable expectation of privacy. So, in terms of art, it isn't really a cut-and-dried public versus private property issue. It is an issue of whether or not there is a reasonable expectation of privacy in that location.

markbarendt said:

News; in a Bonafide news organization if they can get a shot they can use the shot as news. They can't stick it in an ad for a clent though without a release.

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That is not always the case. You cannot just waltz onto somebody's property to get a news photo, except in special circumstances. See Florida Publishing Co. (Times-Union) v Fletcher for a famous example in which a newspaper photographer was allowed to do this. It is worth looking into because it explains why he was allowed to do to so, thus also explains why someone might not be allowed to do so.

This issue has never reached the Supreme Court. Lower courts have generally based their decisions on the special circumstances in each case, instead of making sweeping rulings. But generally, there have to be special circumstances present in order for this to be allowed. In the Fletcher case, the circumstances were that fire fighters invited the reporter onto the property, and that nobody objected to his presence at the time (even though the owner of the house was not present). You have to feel the emotional distress and anger of the mother who found out about her 14-year-old daughter's death by seeing the char mark left by her body published in the newspaper. However, one person's personal distress is usually not enough to block the liberties granted to the press in this country.

vpwphoto said:

I "grabbed" a photo at a car show of some girls in bobby socks and saddle shoes against the wheel of a friends Buick.
I never sold a print, but did win a jurried show award (no cash) and this guy thinks I own him hundreds of dollars.
I have a print in my studio and he comes by and always makes comments.... sour grapes, I did give him an 11x14.

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You don't owe him anything. A car show is usually open to the public, and photography is usually allowed, so there is usually no reasonable expectation of privacy for anyone there, or their property (cars, trucks, etc.). If he didn't want his car shot, he shouldn't have brought it out into the public view. It's as simple as that.

IME, the best course of action is to explain this to them once or twice, and if they still don't get it (which they never do), tell them to please consult a lawyer, and that you do not wish them to discuss it with you any more. If they do consult the lawyer, they will waste their money being told the same thing you just told them. if they continue to bother you, they are committing harassment, and possibly coercion, depending on the circumstances.

Publishers are given great liberties in this country. But they must be constantly defended from illegal attack, unfortunately.

2F/2F said:

So, in terms of art, it isn't really a public versus private property issue. It is an issue of reasonable expectation of privacy.

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a perfect clarification, thanks.

2F/2F said:

You cannot just waltz onto somebody's property to get a news photo, except in special circumstances.

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Absolutely agreed, having legal access and shooting without a prohibition in place is important.

The answer to your question is: No, you should not agree to any kind of profit/earnings split agreement with a model. The reason is simply that if you sell the picture now and again for fifty years then every time you do you are obliged to track down the model and hand over some cash. So you should tie things up neatly at the start with an agreed remuneration paid up front.

VPWPhoto, Mark Barendt, 2F/2F: Your extended discussion with release from editorial/art/commercial perspective has answered a couple more of my questions so thanks again

PaulC: Thanks and I agree. But maybe this temptation of near-perpetual income is what drives people to ask for a profit sharing agreement in the first place?

How about a one-time payment for a fixed few years and then if any sales happen beyond that time, maybe have a re-negotiation?

Sounds like an acceptable middle ground?

Cheers,
Som

KanFotog said:

VPWPhoto, Mark Barendt, 2F/2F: Your extended discussion with release from editorial/art/commercial perspective has answered a couple more of my questions so thanks again

PaulC: Thanks and I agree. But maybe this temptation of near-perpetual income is what drives people to ask for a profit sharing agreement in the first place?

How about a one-time payment for a fixed few years and then if any sales happen beyond that time, maybe have a re-negotiation?

Sounds like an acceptable middle ground?

Cheers,
Som

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You don't want to have to find them at some time in the future.

Especially if they are dead