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Compensation and Publication Rights
Hi, I need some professional and ethical advice regarding compensating a model for a shoot and publication rights. Here's the situation. I'm just starting out in the photo biz. So I have no revenue stream whatsoever. I shot a session with a model on a TFP/CD basis (release signed, full understanding on both sides of the usage and nature of the shoot). I now want to use one of those images from that shoot in a revenue producing project - as part of the art featured on a series of blank note cards. So I have gone back to the model seeking permission to use the image and offering compensation for the photo shoot. In return for one payment for the entire shoot, I am seeking publication rights to all of the images from that shoot. If I find another image from that shoot I'd like to use at a later date, I have the ownership rights and permission to use it. It is my understanding that if I pay the model for the shoot, then the product that comes from the shoot, i.e. the images, are mine. This model is seeking image by image permission and compensation. I'm just not sure how the industry handles this situation of compensation and publication rights for an entire shoot. Can those of you more experienced on the business side of the photography world weigh in on this one for me. Thanks in advance for your thoughts and advice, Steve Ratcliff Jul 01 05 02:03 pm Link The images are yours regardless of whether or not you pay the model. However, you're the one that wants to go back and change the agreement. If she wants to require you to compensate her per image released, she can do that. If I were her, I might very well do the same. Usually, the model has no say in which images are going to be sold or published and she knows that up front. It is not that typical to shoot a test (self-promo only) and then try to renegotiate. Jul 01 05 02:10 pm Link I would reshoot it, and get the release right this time. Jul 01 05 03:07 pm Link You guys are assuming the original release doesn't already have him covered, it might very well but he obviously doesn't have a solid understanding of how things work. First thing to do is to find out what the wording of the existing release is (without the models name) Jul 01 05 04:37 pm Link Since it was a TFP/TFCD shoot, to my understanding you can't publish or sell those images without permission from the model. He/she gets a percentage like 35% revenue is what I saw on a previous post - someone was asking about the same question as this. In a basic TFP/TFCD the images from that type of shoot can not be sold without approval from both parties involved because they're really only supposed to be used for portfolio work for both sides. So, go over the current release or the easiest thing to do is simply reshoot and get a different release signed, but meet with him or her discuss it. Really it's not that uncommon to go back and renegotiate. In a previous post that I saw on here somewhere... what they had discussed was that both parties could sell but they would have to give 35% to the party that didn't sell the image. I think that's fair on both sides because if the model sells the image then he/she gives 35% of that profit to the photographer and if the photographer sells it then he/she gives 35% to the model. That's my 2 cents ^_^ Jul 01 05 05:11 pm Link Posted by jstill: Yeah, what he said. All my releases say that I could do whatever the hell I want with the images, whether I want to sell them, publish them, use them as toilet paper. The model on the other hand can not without my permission. Jul 01 05 05:22 pm Link Okay some clarification: Aaron is correct that you should check the original release and see if you are covered for publishing. I would only assume, based on your original post that either you are not, or you had no release to begin with. If you have a release that gives you full rights, the question is moot as you don't need to negotiate any further compensation. Lets assume you don't. (correct me if I am wrong) Now, some things you should understand that are often confused. When you shoot a photograph, you have immediate copywrite for that photograph, and only you can give that away, don't. If you would like to publish a photograph that contains a recognizable likeness of a person you need a model release (unless of an editorial nature, i.e. newspaper). It is a good idea to have a model sign a release giving you these rights. Your release should contain a line like: "the right to use and reuse, in any manner at all, said photographs, in whole or in part, modified or altered, either by themselves or in conjunction with other photographs, in any medium or form of distribution..." and..... "I hereby forever release and discharge Photographer from any and all claims, actions and demands arising out of or in connection with the use of said photographs, including, without limitation, any and all claims for invasion of privacy and libel. This release shall inure to the benefit of the assigns, licensees and legal representatives of Photographer, as well as the party(ies) for whom he took said photographs." So, now you have a shoot that you have no model release for that you wish to publish. You need to negotiate for a release with the model. As you wrote, the model wants to grant limited one time usage (which is typically what a photographer does with a low paying client), and you want unlimited usage, and you haven't come to an agreement on these rights. Personally, I would have offered a tear sheet, but it seems too late for that. Faerie_talez offers a variation where compensation is shared in some way. Unfortunately, in my state, a contract is not binding without the exchange of money. So a tfp contract it worthless to me here. This is why that on the off ocassion that I do a tfp, we don't sign anything. And I don't intend to use the images for anything that will make money. (promotional usage only). If there are ever any misunderstandings, just scrap the work and move on. At this point, if you can't come to an agreement with the model, you need to rely on your skills as a photographer, make a couple of prints from the old shoot, find a new models, PAY her, have her sign a release, reshoot the same images and wooohooo! you are in business. Which brings me back to my original post: I would reshoot it, and get the release right this time. Jul 01 05 06:52 pm Link Photographers and models continually go back and forth on the subject of Releases. A Model Release is NOT a Model Document. A Model Release is a photographer document. Nothing more, nothing less. A Model Release is a document that enables the photographer to utilize images as the photographer, his-her heirs and assigns see fit. Nothing more, nothing less. When prepared correctly, the document addresses any and all image manipulation, transfer of said rights and publishing. A Model Release does not take in to consideration whether the shoot is for barter (TFP) or if the person is paid, or how the images can be used by other parties. Those conditions, if and when applicable, on contingency are listed under a separate "Terms & Conditions" attachment. Models and Photographers often confuse the legal intention of a Model Release. Those that do by placing items (within the release) that address terms and conditions beyond the sole intent of a Model Release have not been advised correctly and will likely expose themselves to legal peril as terms and conditions listed in the release out of compliance will render the complete document null and void. In addition to a Model Release, photographers should also have documents that cover Rights Release, Work For Hire and a Scope of Work (with terms and conditions) that eliminate exposure through contingency use. As well, prior to signature on a Model Release, whenever possible, a government issued ID should be affixed to the upper right hand portion of the document then photo-copied with initials of the signing party placed next to the ID. Models that insist on bringing their own document should title it other than a Model Release, as a Model Release is not applicable for anyone that does not hold copyright with full and complete control of the imaging. The correct document presented by a model is a Rights Release document, not a Rights Transfer, as a rights transfer hands over complete and total control of imaging created by the photographer. Photographers that seek to publish their work, preserve work for posterity or issue work to other party usage should have separate, rather than overlapping documentation. It's called getting the ducks in a row... Jul 01 05 07:42 pm Link Posted by faerie_talez: LOL, where is this post? The person who told you this is way off base and is giving out some bad information for models! Basically if you sign a standard model release you better hope you can trust the photographer. Just look at some of the attitudes people have like Visual Mindscapes "All my releases say that I could do whatever the hell I want with the images, whether I want to sell them, publish them, use them as toilet paper" I mean if you want to take a chance with that type of person then best of luck!! Jul 01 05 08:03 pm Link it was somewhere on here because I know I saw it here O_O, but I thought since it was TFP/TFCD then both sides couldn't sell the images but only use it for portfolio work, am I wrong here??? Jul 01 05 08:10 pm Link You people make me want to cry. A model release specifically gives the photographer the right to sell and/or publish the image without getting sued. A release can be a stand-alone document or part of a large contract the encompasses copyright waiver, etc. Many of the releases I've seen are poorly witten regarldess of whether or not they are part of a broader contract. TFP/CD is usually done for portfolio/self-promotion purposes only, but it doesn't have to be. It dpends what the parties agree to and what they sign. A good release rarely ever includes the phrases listed herein. I've never seen a form prepared by a competent attorney that would disallow for libel suits and I would never, ever sign one (not that it would be likely to hold up anyway). Good releases will rarely allow the photographer unlimited use of an image in perpetuity. It's horribly unfair to the model, especially when the only compensation (as in this case) is a few images. Jul 01 05 09:09 pm Link I'm sorry I made you wanna cry ^_^ Jul 01 05 09:43 pm Link Posted by theda: I can understand your feelings as they come from a Model perspective. That is not however, a consideration for a Model Release, as the document intention is written based on the rights of those standing on the other side of the lens. Jul 01 05 10:46 pm Link Have you actually encountered unlimited releases on commercial assignments? A time period of allowed usage is usually defined, as are specific uses for the image. This unlimited "photographer can do absolutely whatever he wants with said images for ever and ever no matter what" thing is not the norm outside of the internet and stock. Signing every piece of paper stuck in front of you is also not the norm. Also, in many states (but not all) releases are not valid without defining some manner of compensation for the releasee. California may not be one of them. If we could completely trust one another's intent, releases wouldn't be necessary in the first place. Photographers would never do anything improper with images and models would never change their minds and want to sue over proper usage. A release is a form of a contract, and although only one party is surrendering rights, release forms are still expected to be fair to both the releasor and releaseee. Jul 01 05 10:58 pm Link Posted by theda: All one has to do is get a release from the ASMP or any recognized photographic organization and there is no hope in court. These are made by lawyers for photographers so they are not going to be turned away regardless of what a model says. That is why I said you should know who you are dealing with before you sign anything. If I do a test with a model she has to sign a release otherwise I can't submit the images for whatever purpose they were intented. Im not selling them to porn sites and models see that I don't shoot that to begin with so they feel more at ease. I also explain everything beforehand so they understand why I need the release. If a model isn't going to sign a release so I can at least submit images to magazines I work with then I am not going to waste my time. There are far too many models who don't understand how to market themselves, what photographers get paid, etc...and far too many new models who can fill there shoes the next day! Once again this goes back to another recent post discussing what models expect to bet paid. I think it is important models realize photographers shouldn't be your main focus for money as the companies are the ones with the cash. Obviously if you are a nude model you can make more off of photographers who might shoot for websites, adult magazines, or maybe there own images they sell in galleries or are making books. Jul 01 05 11:03 pm Link Posted by ( ANT ) Mgaphoto: There is no such thing as "no hope in court." I've seen releases from the ASMP etc. and they usually ask for everything just short of the model's eternal soul. They are not appropriate for most situations and rarely used by those with the means to hire an attorney to draft more appropriate documents. Jul 01 05 11:08 pm Link Posted by theda: You bring up a few interesting points. First, yes I have encountered a "standardized Release" provided for signature. By standardized I mean a Release written and presented similarly found in such publications as the "Photographer's Market." Some Releases contain a description of the photography session, some do not, which depends on the client and their intended purpose. They can also state under the purpose ambiguity such as "marketing material" which covers a wide spectrum of use. Jul 01 05 11:28 pm Link Posted by ( ANT ) Mgaphoto: Apparently they do trust me and they are always happy with the outcome. Jul 02 05 12:28 am Link Posted by area291: Posted by theda: You bring up a few interesting points. First, yes I have encountered a "standardized Release" provided for signature. By standardized I mean a Release written and presented similarly found in such publications as the "Photographer's Market." Some Releases contain a description of the photography session, some do not, which depends on the client and their intended purpose. They can also state under the purpose ambiguity such as "marketing material" which covers a wide spectrum of use. As usual, I will line up behind Theda. Although many clients will desire them, it is rare that a commercial shoot with models booked thru legit agencies will secure unlimited/buy-out releases. They are cost prohibitive. A lot of the debate in this thread deals with interactions between models and photographers who meet thru the web. Those interactions are in sharp contrast to the operations of the commercial industry. Jul 02 05 09:15 am Link If Steve Ratcliff is following the thread, maybe he can post the release. It might answer the question. Jul 02 05 09:21 am Link Thank you everyone for the wonderful discussion on this topic (I started the thread). I am an amateur photographer just starting to pursue the commercial side of the business. And by commercial I mean finding ways to personally sell my own photography. I am not hired by any clients to produce product. From day one, I have always approached this new world of shooting models with utmost respect, treating the models and the process with absolute professionalism. That is why I started the thread, to get opinions and advice to make sure I do the right thing. The right thing? In my opinion it is honor the model for her work, compensate her to the best of my ability, and do not take advantage of her, either personally or professionally. Based on the advice offered here, I have decided to go back to my models and offer to pay them for the session and then offer additional compensation (in exchange for permission and publication rights) for each image that I want to use in a revenue-producing project. All that remains is determining the rates Thank you everyone for your help and advice. It has been very beneficial. Jul 02 05 10:17 am Link As requested, here is the TFP/CD release I use: Model Release Form For TFP I, ________ (hereafter "Model"), in the interest of gaining valuable modeling experience and in exchange for photographs of myself, do hereby irrevocably authorize ________ (hereafter "Photographer"), and those acting with Photographer's permission, to use photographs taken by Photographer of myself on the date of __________ and derivative works based thereupon (collectively hereafter the "Photos") for all lawful purposes subject to the terms and conditions described herein. I agree that the aforementioned exchange is for photographs delivered to me by Photographer in the quantity and format described as follows: ______________________________________________ I agree that, while I may use the Photos for purposes related to the promotion of my Modeling business, including but not limited to advertising, portfolios, composite cards, exhibitions, contests, and promotional internet web sites, I will not sell publication rights in any or all of the Photos without Photographer's prior consent. Likewise, I authorize Photographer to use the Photos for purposes related to the promotion of Photographer's business, including but not limited to advertising, portfolios, composite cards, exhibitions, contests, and promotional internet web sites, but do not authorize Photographer to sell publication rights in any or all of the Photos except with my prior consent. The photographer gives the model "The right to publish" in any media with the following restrictions: a) The model must always publish the photographerâs copyright notice every time and anytime the photographs are published. b) The photographs are to be published "as is", that is, without distortion or changing the photographs original appearance, with the exception of blemishes and other similar touch-ups. Model hereby releases and agrees to hold harmless Photographer and those acting under his permission, from any liability by virtue of blurring, distortion, alteration, optical illusion, or use in composite form whether intentional or otherwise, that may occur or be produced in the taking of the pictures, or in any processing tending toward the completion of the finished product, unless it can be clearly shown that the foregoing was maliciously caused, and produced, and published solely for the purpose of subjecting Model to conspicuous ridicule, scandal, reproach, scorn, and indignity. Model hereby affirms that all poses, positions and situations enacted in the Photos covered in this release were entered into without force, coercion, or threat whatsoever, and were posed freely by Model with Model's full consent. Model further agrees to hold blameless and free of all accusation of such force or coercion Photographer, his legal representatives, assigns, and those acting under his permission. Model hereby affirms that his/her date of birth is __________ and that Model is fully able to contract in his/her own name without breach of any prior agreement or applicable law, including but not limited to prior agreements with modeling and talent agencies. I have read the foregoing prior to its execution and I am fully familiar with and agree to the contents thereof. Jul 02 05 10:20 am Link I authorize Photographer to use the Photos for purposes related to the promotion of Photographer's business, including but not limited to advertising, portfolios, composite cards, exhibitions, contests, and promotional internet web sites, but do not authorize Photographer to sell publication rights in any or all of the Photos except with my prior consent. I'd say you have to do whatever it takes to get consent, or pay and reshoot, whichever is cheaper. Jul 02 05 10:51 am Link |
