TXPhotog wrote:
It could be either, but in my experience commercial clients (at least those who are sophisticated about such things) provide their own release (or use an agency voucher in lieu of a release, if it's an agency model).  There are times when the photos are released to the photographer, but usually not unless the shoot is a buyout for the model - and even then, not when the buyout is for a single client or product.

Thank you for this reply. It's a bit 'industry heady' for where I'm at but it certainly very helpful. It makes sense that the client would provide a release, in that case though, do photographers ever run into trouble with using photos for their portfolio, etc?

-Dg

Scott Aitken wrote:
Technically, the copyright holder should be the one to get the model release. So if you are the copyright holder, then you should get the model release. Often the client will want their own, or want a copy of yours. If you are doing work for hire, or in any other way relinquish copyright to the client, then the model release is their responsibility. It is pretty pointless for you to get a model release if you don't have copyright to the images.

Actually, the answer is that whoever is paying the bill should get the release. Copyright (what the photographer owns) doesn't have anything to do with right to privacy (what the model owns).

Approaching this question as an agent that did exactly this kind of negotiation for four years, this is the way it works in NYC (and most other places) in the commercial world. Most of the time. There are always exceptions, but the vast majority works as below.

Assume (for the sake of clarity) that the photographer maintains the copyright, and licenses the image to the end client. (The most common procedure, in my experience.) The photographer does not need a model release, the client does, since the client is the one that is going to publish the model's likeness to advertise their product. The photographer may do the paperwork for the client, in which case the release might be in his name, but the restrictions noted below should be in the release. The client also needs a copyright release from the photographer, for the use of the image he (or she) created.

Normally the client (by name) gets limited rights to the use of the image and the likeness. Limited in time and usage (how long, when, where, how the image can be used).
If it's a "full buy-out", the client gets unrestricted time, but the usage is still restricted. Dove can use the image for advertising (anywhere, anytime, anyhow) their soap, but they can't sell the image to Canon to advertise their towels.

For stock shooting, it's really pretty similar, except (sometimes) for the limitations. Three scenarios.
1) The stock house is contracting the shoot, and the photographer gives up copyright. Normally the model would sign a release to the stock house, or the photographer, either way it doesn't matter, the model sells all rights (unrestricted release) to the use of her (or his) likeness.
2) The photographer allows the stock house to buy all rights to an image. In this case, the photographer would usually get the model's release, because he would be the one originally footing the bill for the shoot. The model sells all rights (unrestricted release) to the use of her (or his) likeness.
3) The photographer licenses an image to them for a limited time. In this case also, the photographer would usually get the model's release, because he would be the one originally footing the bill for the shoot. The model sells all rights (unrestricted release) to the use of her (or his) likeness.

For art, it is again similar. The artist is paying the model for the right to use her to make art. If they can sell it, they need a release, so the photographer (artist) should get an unrestricted  release.


What I outlined above is the accepted industry practice in the professional world.  Note that there are photographers that will try to get a full release from every model on every shoot, regardless of who's paying the bills. They usually won't last long, as agencies (and smart independant models) won't have anything to do with them, at least not more than once.

Scott Aitken wrote:
Technically, the copyright holder should be the one to get the model release. So if you are the copyright holder, then you should get the model release. Often the client will want their own, or want a copy of yours. If you are doing work for hire, or in any other way relinquish copyright to the client, then the model release is their responsibility. It is pretty pointless for you to get a model release if you don't have copyright to the images.

This is the correct answer.  A copyright without the rights to use an image is meaningless.  If the client wants their own release, that just means the model signs both releases (one to protect me; one to protect the client).

James

Scott Aitken wrote:
Technically, the copyright holder should be the one to get the model release. So if you are the copyright holder, then you should get the model release. Often the client will want their own, or want a copy of yours. If you are doing work for hire, or in any other way relinquish copyright to the client, then the model release is their responsibility. It is pretty pointless for you to get a model release if you don't have copyright to the images.

ImagesByJames wrote:
This is the correct answer.  A copyright without the rights to use an image is meaningless.  If the client wants their own release, that just means the model signs both releases (one to protect me; one to protect the client).

James

In a certain way Hoot is correct also. When you deal with agencies [or use agency represented models on a client project even if they were hired by the ad agency or the client] THEY, the model's agency, want to control usage and so will NOT normally allow their models to sign releases for the photographer... even if the photographer owns, and will continue to own, the copyright vis a vis the ultimate client [in circumstances where the client has not contracted for a buy-out of the photographer's copyright interest]. The only exception that I know of, dealing with agency models, is when the photographer them self is the client. But read on...

Further, negotiations for a model's services often involves only one of two images for the client [or photographer if he is the factual client] to actually use... for a specific use; in a specific territory; and for a specific period of time. In the case where maybe several hundred frames might be shot ONLY the client + agency agreed images are released - NOTHING ELSE. After the contracted use time expires the use license also expires.

What this amounts to is that: 1) the photographer is expected to license the photograph itself to the client; BUT 2) the model/agency is licensing the use of the photograph.

So to highlight James' comment you wind up, working under those conditions - and they are normal contracts when agencies are involved - in a position where you, as the photographer, end up owning copyright to many images, perhaps even thousands over a period of years, but without any released use rights. And James is exactly correct - your copyright ownership is ultimately meaningless in that exchange.

An analogy to this might be likened to buying a car, and having the title put in your name [the copyright], but agreeing with the seller that, after an agreed period of time when you can use it, you will never drive it again without both their permission and paying them more money.

In the end you own everything [copyright] but control nothing [use rights].

Studio36

ImagesByJames wrote:
A copyright without the rights to use an image is meaningless.

And that's the whole point of what Hoot posted.  The photographer is not supposed to be able to use the images (unless he cuts a separate deal with both the model and the client, which rarely happens).  The only thing he is supposed to be able to do with them is license their use to the client - who already has a model release.

kgsphoto wrote:
It depends on the reproduction rights.  If the photographer is retaining copyright then it should be his release so the said photos can be used for other purposes.  If the Photographer is giveing up the copyright then the release goes to the client.

No, that is not true.

There are two separate transactions here.  The photographer (who may keep copyright, and generally does) is providing services and a usage license to the client.  The model is providing services and a usage license (the release) to the client.  Assuming the photographer does not give the client buyout rights, he may at a later time be able to sell additional usage rights to the client - but the client must then separately negotiate usage rights from the model (or her agency).

If the photographer wants to make some other use of the pictures, that is outside the scope of the release usage signed by the model, and he needs to negotiate with her for the right to do that.

It is sometimes true that the photographer will act as the agent for the client and have the model sign a release for him (which still will usually be limited to a particular type of use, and NOT allow other uses) - but that is not the more usual case.

AJ Bella wrote:
So the model has no rights to her photos? Can a model write up her own release form for the photog to sign when doing maybe a TFP to ensure she gets her photos?

It seems all the rules benefit the photog and not the model.

AJ, what is being discussed here is a commercial shoot, with a client who is paying for the model and the photographer.  TFP is a very different situation, with different rules.

However, to answer your question, yes, you should get the photographer to sign a limited copyright waiver (or license) to allow you to make self-promotional use of the pictures.  A good photographer should have such a document on hand and be able to give it to you on request; if he doesn't, you can write up your own.  It should be very simple - shouldn't require more than three or four sentences.

TXPhotog wrote:
There are two separate transactions here.  The photographer (who may keep copyright, and generally does) is providing services and a usage license to the client.  The model is providing services and a usage license (the release) to the client.

Think in terms of this word picture:

IMAGINE

A milk cow... with the photographer tugging on the horns and the client tugging on the tail... neither making much headway against the other... whilst the agency is sitting quietly between the two ends of the cow milking it.

------

Few photographers here will find themselves shooting agency models for a commercial "client"... but if you ever do find that employment proposition on the table then you, as the photographer, have to consider carefully what you are charging the client for your work.

If, for example, you would normally shoot on a day rate [whatever it might be], and you don't consider where you are in that position between a client and an agency and adjust your rate accordingly [upwards]... then you WILL be getting "stuffed" just like a Thanksgiving turkey.

Studio36

Yuriy wrote:
I quote (parts of one of my releases):

...
I, ____________________________________(print Model’s name) do hereby give permission and right to [Photographer] his assigns, licensees, successors in interest, legal representatives, heirs, and those acting with [Photographer]’s permission to copyright and/or use, reuse and/or publish, and republish audio and video tape and photographic pictures or portraits of me, or in which I may be distorted in character, or form, in conjunction with my own or a fictitious name, on reproductions thereof in color, or black and white made through any media, for any purpose whatsoever; including the use of any printed matter in conjunction therewith and for advertising.
...
I hereby release, discharge and agree to save harmless [Photographer], their representatives, assigns, employees, or any person or persons, corporation or corporations, acting under their permission or authority, or any person or persons, corporation or corporations, for whom they might be acting, including any firm publishing and/or distributing the finished product, in whole or in part, from and against any liability as a result of any distortion, blurring, alteration, optical illusion, or use in composite form, either intentionally or otherwise, that may occur or be produced in the taking, processing or reproduction of the finished product, its publication or distribution of the same,
...

As stated above, agencies are a different animal.

This has nothing to do with "agencies", except that agencies tend to know and enforce a model's rights, where photographers tend to be less scrupulous about it.

Let's remember the subject of this conversation:  doing a commercial shoot of a model for a client.  Your release violates the terms of a typical commercial shoot in two major respects: 

1.  It grants you usage rights for more than just the particular client, and (if the client is not getting a buyout) for a more extended period and set of media and locations than the client is paying for.  That is, you are cheating the model.

2.  It grants you usage rights for the picture to sell to other clients if you wish, with no constraint on you.  That is, you are cheating the client.

Apparently you have not dealt with a lot of commercial clients, and don't understand the nature of the relationship you have with them.  You also apparently have not dealt with knowledgeable models, who should never sign such a release on a commercial job unless they are paid for it and agree to it in advance.

AJ Bella wrote:
So the model has no rights to her photos? Can a model write up her own release form for the photog to sign when doing maybe a TFP to ensure she gets her photos?

It seems all the rules benefit the photog and not the model.

Maybe what a model needs is a photographer release (just like a client) to outline what they are allowed to do with the photos.  Be it portfolio, for sale (especially this one I imagine), etc.

Because otherwise, from my understanding, for a the typical TFP shoot, nothing is needed.  I have never provided a model release for any of my models.  On my shoot with Flo Jalin, when I asked her if she needed a model release, it actually caught her off guard.  Her response initial response was no.  But it also depended on what my intentions were.  If I was going to attempt to publish/profit from the photos, then yes and her rates were going to go UP from our original agreement.  Otherwise, for portfolio purposes, none was needed.  And as far as I know, she doesn't hate me.

ImagesByJames wrote:

This is the correct answer.  A copyright without the rights to use an image is meaningless.  If the client wants their own release, that just means the model signs both releases (one to protect me; one to protect the client).

James

No, it's not.

For a client shoot where the client is publishing the ad, you don't need a release. You are not violating the models' right ot privacy. The client does need a release.  They are the one publishing the image, so they need your permission (copyright license) and the models' permission (privacy release). Plus possibly location releases as well, if the location is readily identifiable.

The client is paying for you to shoot an ad. Why do you think that you should have the right to do anything with the images after delivering the product to the client? More specifically, why should you have to right to sell the models' likeness for another purpose when the model didn't get paid, and didn't agree to the usage?

studio36uk wrote:
Think in terms of this word picture:

IMAGINE

A milk cow... with the photographer tugging on the horns and the client tugging on the tail... neither making much headway against the other... whilst the agency is sitting quietly between the two ends of the cow milking it.

------

Few photographers here will find themselves shooting agency models for a commercial "client"... but if you ever do find that employment proposition on the table then you, as the photographer, have to consider carefully what you are charging the client for your work.

If, for example, you would normally shoot on a day rate [whatever it might be], and you don't consider where you are in that position between a client and an agency and adjust your rate accordingly [upwards]... then you WILL be getting "stuffed" just like a Thanksgiving turkey.

Studio36

Your analogy is skewed. The client is the cow, and the photographer has him locked up in his own barn. The model and her agency only get what the photographer (or the ad agency) offers. Usually the photographer knows exactly what the entire budget is for the ad campaign, but the model's agent does not. Who's milking whom?

Since it's normally the photographer that negotiates the $$ and contract usage with the client in the first place (at least here in the US), it is up to the photographer to set his rate high enough to make him happy. Then the photographer (or his rep, or the casting director he hires) contacts agencies to hire a model. The typical call tells the model agent who the client is, what the product is, where the ad will run, and how long it will run, and what the model's fee is. The agent either agrees to the offered rate, or the photographer goes elsewhere for a model. Sometimes there is room for the agency to negotiate, but not often, and almost never with the client. With so many models and agents willing to work for relatively low (and ever decreasing) rates (forced on them by the photographer or the ad agency or the client or the casting director), usually there is someone that will accept the offer, just to get some work. That doesn't sound to me like the agency or the model is in the middle milking anything. Never did I ever hear a working professional photographer bitch about the model making so much that there wasn't enough left over for the photog. Cheap clients? Certainly, but the model's rate was reduced too. Somehow the photographer always seemed to make enough money so that he accepted the job. Or rejected the job completely because it didn't pay enough.

But, to the main point, regarding models' right to their likeness, why should they give away the same rights you hold so precious?

Since you would charge (as you have said) huge amounts to give up the full copyright to your images, why do you expect the model to give up all right to her likeness, so you the photographer can sell the images of her forever and for whatever purpose, for no additional compensation? To make an apt analogy that's like the client using your photos again (outside of the original license) and not paying you for the right to do that.

If you want full rights to do whatever you want with the models' likeness, pay them for a buy-out. Separate from the client's rights.

Oh, but you might want to check with the client too. They may have issues with you selling the product they paid for. Legally, depending on the contract, you probably can, but I doubt you would ever work for that client again. Or any advertising agency they work with. I know one photographer in NYC that did just what you are contemplating, but he was new to the business. And, he wasn't around long enough to make that mistake again.

And obviously, I'm not picking on you, there are others in this thread that have the same thought process.

As an aside;
Could you explain what your term "the model agency client" means? It sounds like the model agency is dealing directly with the client, and not the photographer (or photographers rep or casting director). I've seen that happen maybe three times in four years of bookings in the commercial business in NYC.

Hoot wrote:
And obviously, I'm not picking on you, there are others in this thread that have the same thought process.

I know you are not picking on me Hoot. And, I should add, that I am also not advocating in this position, vis a vis commercial work, that the photographer should ALWAYS retain ALL rights and get an unlimited usage release to the exclusion of the model or the ultimate client [end user]... only that it seems under the terms of the agency/client agreement that, on these commercial jobs, there SHOULD be a buy-out of the photographer's rights complete. To do otherwise diminishes the photographer's future use to nil. That IS an effective buy-out but without paying for it. Here we have a situation where the agency claims to control any and all use rights but the photographer gets none of it. Therein lies the problem - if the agency wants that level of control then they should pay for it... and hold the actual copyright. Or the end user client should pay for it and hold the actual copyright. To leave the photographer a copyright ownership but with NO use rights makes copyright ownership factually meaningless. Hence the photographer sets his rate to compensate for the loss of usage rights.

Just as a side note here... and you may NOT be aware of it because it would not happen as often in the US courts, if ever... courts in the European area have held that such agency / client contracts [and certain other media contracts] can be challenged on the basis of "restraint of trade" arising from "unfair (contractual) terms and conditions." And that a term of exclusivity by which the agency can suppress future use should be limited. Limited how and to what extent is the question. In cases that have actually been heard in court it seems that the courts have gone for terms limiting the agency's exclusive control of use to a period of 5 - 10 years [depending on the particular case]. Thereafter, there are uses for images even without releases. This judicial view on limitation of use is in recognition that a copyright owner is, by law, granted the right to exploit the copyright and should not be allowed to have that right abridged by a term of a contract that runs effectively for the life of the copyright. The courts have said that that makes copyright meaningless - just as the other commentator here said and as I said. In fact, to reinforce that view, in British copyright law it is NOT permitted to undertake to create a "life of the copyright" exclusive license [control of use of copyright material exclusively by one party who is not the copyright owner.] Such licenses are void, or voidable, and against public policy. Licenses must be for a "term" and that "term" must expire before the copyright does. Ditto for suppressive agreements such as the agency's contract. The way the agency agreements are worded is such that there is no time limit stated and consequently implicit that they run the "life of the copyright".

A doubly poor situation when the model might be long gone from the agency and the profession, or even be dead, and the agency is still trying to control the images.... and collect agency fees. No, no no!  And the courts have agreed that that is in untenable position.

Hoot wrote:
As an aside;
Could you explain what your term "the model agency client" means? It sounds like the model agency is dealing directly with the client, and not the photographer (or photographers rep or casting director). I've seen that happen maybe three times in four years of bookings in the commercial business in NYC.

The model agency "client," as I use the term, is the person / entity actually contracting with the agency for the use of the model. Anyone else would be a third party. That "client" MAY be, but is not necessarily, the photographer... but more usually, here, it's the ad agency... seldom is it the factual end user "client" of the photographer or ad agency that is dealing with the model agency.

You will see what I am getting at if you read [highlighted part] from the terms and conditions Para 21 that the agency contract does NOT anticipate that the photographer will ALWAYS be the factual model agency client. Outside of photographic work, and for catwalk shows, it might even be the designer or fashion house that contracts for the models... but there they, as the "model agency client" in that case, are obligated to control the photography done at the show [Para 19 of the agency agreement, noted above, covers this as does Para 21]

COPYRIGHT

21.The photographer is not entitled to use any of the images he takes for any usage beyond that agreed under section 2, 9,10 above. The photographer to this extent agrees to restrict use of his copyright and, if the model agency client is not a photographer, the client is to draw these terms and conditions to the attention of the photographer and obtain his agreement before the shoot commences.

The "model agency client" is whoever signs the agreement for the use of the model and obligates them self to pay the agency's invoice. The photographer's "client" is whoever hires the photographer and obligates them self to pay the photographer's invoice. The ad-agency's "client" is whoever contracts with them as the end user of their work product and obligates them self to pay the ad-agency's invoice.

Studio36

TXPhotog wrote:
It seems to me that we are talking past each other here, and neither is understanding the situation of the other.  The confusion seems based on the difference in privacy laws between the US and the UK (or perhaps in Europe generally - I don't know much about European law in this regard).

Here is what I believe the situation is:

You keep speaking of an "agency contract" which binds the photographer not to do something.  There is no equivalent contract in the US.

It would be helpful, then, if someone were to post pertinent parts of an agency agreement [call it a contract or not] as used in the US for the supply of models' services, through an agency, to a hiring party ["client"]

Releases aside, I would love to see one. Just what is the contractual relationship between the two - agency and hiring party - in the US context? NOT the client and the model regards releases but the client and the agency regards THEIR mutual terms and conditions.

What I posted above is a form of contract that the AGENCY it came from uses... and it is the most common form known as the "standard contract" or "standard agreement" and the wording was developed by the [UK] Association of Model Agents / Agencies [aka AMA].

I am quite aware that there was, at one time a similar group in the US, and most of the NYC (and other non-NYC) agencies were participants. I am also aware that certain features of their "standard agreement" for the supply of models' services [developed and agreed AND ACTUALLY USED amongst themselves] became a hot issue in the lawsuit against them by a group of models. It also became a hot issue with the Federal Trade Commission as an anti-trust question EXACTLY because of the way it came into being. So, OK, lets get it out in the open... what are US agencies demanding in a similar respect to the demands being placed on the table by UK agencies when someone calls them and wants to hire a model?

Studio36

TXPhotog wrote:
...
2.  It grants you usage rights for the picture to sell to other clients if you wish, with no constraint on you.  That is, you are cheating the client.
...
Apparently you have not dealt with a lot of commercial clients, and don't understand the nature of the relationship you have with them.  You also apparently have not dealt with knowledgeable models, who should never sign such a release on a commercial job unless they are paid for it and agree to it in advance.

I disagree. This is just from a model release. All commercial clients receive a license of rights which usually gives them exclusive rights to use of am image for a certain period of time in a certain market and area (unless it’s a buyout or they want it exclusively in all markets). If I license the image to a 2nd client across the country for a different market the client is not cheated because the use of an image does not influence said client at all.

The models I have dealt with under those pretenses were paid to completely give up control over an image. The reason I use this is because with all clients that I have dealt with I (technically) hire the models (under contract). The clients then reimburse me for all expenses.


Then again you are right about agencies. If an agency refuses (or wants too high a price) for full release of an image, then you would have to increase your licensing cost to account for additional model releases. If that is the case... It shouldn’t affect you too much in the end unless other clients (who want to use the same image) refuse your bids or estimates because of price.


I write this all with the frame of mind that my intellectual property is indeed mine, so I try to leave myself enough room to freely use my image unless I am paid to keep it exclusive or something along those lines.

That is my market and the kind of clients I prefer to deal with. I’ve probably turned down more jobs than I’ve shot, but I sleep better at night knowing that I have full control my images (my current ones anyway) and my future (I got into my own business to do things my way).
So please remember, that you’re right and most clients want too much (rights, images, w/e) for too low a price, agencies don’t want to cooperate, and shit gets all confusing, but you can still do things your way if you tread lightly and talk right… …Or, you can tell them to take their assignment and shove it (not in those words). lol

studio36uk wrote:
I know you are not picking on me Hoot. And, I should add, that I am also not advocating in this position, vis a vis commercial work, that the photographer should ALWAYS retain ALL rights and get an unlimited usage release to the exclusion of the model or the ultimate client [end user]... only that it seems under the terms of the agency/client agreement that, on these commercial jobs, there SHOULD be a buy-out of the photographer's rights complete. To do otherwise diminishes the photographer's future use to nil. That IS an effective buy-out but without paying for it. Here we have a situation where the agency claims to control any and all use rights but the photographer gets none of it. Therein lies the problem - if the agency wants that level of control then they should pay for it... and hold the actual copyright. Or the end user client should pay for it and hold the actual copyright. To leave the photographer a copyright ownership but with NO use rights makes copyright ownership factually meaningless. Hence the photographer sets his rate to compensate for the loss of usage rights.

I wrote up about half this reply before figuring out (I think) that the laws governing the use of an individuals likeness are very different in the US vs the UK. I edited the parts that were germain, but understand the difference as you read my post.

The agencies here don't make the right to privacy and right to publicity "rules". They are State law, or common law, as decided by the courts and the government. (One of) the agencies roles is to help the model (and the photographers and the clients) insure that no one is violating them.


No, it isn't a buy-out. No one can re-use or re-sell your photos unless they pay you for that usage.

Your future use of the image should compensate the model as well, no? I understand the "artistic creation" thing, but the model has an interest too. Is it not fair that a model be compensated for the additional use (sale) of her image? After all, it's as much about the look that a client is buying as the artistic input of the photographer.

As an aside, on the commercial shoots I'm familiar with, mostly there is very little artistic input by the photographer. Craft yes, art no. Major clients usually have story boards that the photographer is commissioned to duplicate. The better a craftsman, the better and faster the end result, but it almost always looks a lot like the drawings the client came in with originally. What little commercial shooting I did really frustrated me because of that.

It seems that there is a huge difference in privacy rights and publicity rights between the UK and the US. Here, depending on State laws, regardless of whether or not there is an agency in the mix, a photographer can not use a model's likeness unless he has a release to do so. If the model is smart, she will only sign away those rights for proper compensation. The more the money, the more the rights. That's where (one of the many things) agencies are helpful to the model. Mostly they don't know how much their service is worth, and indeed don't understand their rights at all. It is the same as if a photographer doesn't understand copyright.

studio36uk wrote:
Just as a side note here... and you may NOT be aware of it because it would not happen as often in the US courts, if ever... courts in the European area have held that such agency / client contracts [and certain other media contracts] can be challenged on the basis of "restraint of trade" arising from "unfair (contractual) terms and conditions." And that a term of exclusivity by which the agency can suppress future use should be limited. Limited how and to what extent is the question. In cases that have actually been heard in court it seems that the courts have gone for terms limiting the agency's exclusive control of use to a period of 5 - 10 years [depending on the particular case]. Thereafter, there are uses for images even without releases. This judicial view on limitation of use is in recognition that a copyright owner is, by law, granted the right to exploit the copyright and should not be allowed to have that right abridged by a term of a contract that runs effectively for the life of the copyright. The courts have said that that makes copyright meaningless - just as the other commentator here said and as I said. In fact, to reinforce that view, in British copyright law it is NOT permitted to undertake to create a "life of the copyright" exclusive license [control of use of copyright material exclusively by one party who is not the copyright owner.] Such licenses are void, or voidable, and against public policy. Licenses must be for a "term" and that "term" must expire before the copyright does. Ditto for suppressive agreements such as the agency's contract. The way the agency agreements are worded is such that there is no time limit stated and consequently implicit that they run the "life of the copyright".

Nope, you're right, I haven't seen that here. I can't imagine it would arise, because here the agency is only acting as a (loosely defined) legal guardian for the model. The agency doesn't have any power, except for that granted by the model to the agent. In our courts, I believe that the rights to privacy and publicity (again depending on the State) usually overcome the right to commercial use. Editorial is a different story, but that's not part of the discussion.

studio36uk wrote:
A doubly poor situation when the model might be long gone from the agency and the profession, or even be dead, and the agency is still trying to control the images.... and collect agency fees. No, no no!  And the courts have agreed that that is in untenable position.

Right to privacy and publicity survives the model. It transfers to her estate, just as a photographers copyright does. Yes, it gets really complicated. I'm not sure how long the right survives, but it's lots of years. Enough that I never had to be concerned about it.

I have signed (via power of attorney) re-use rights for images when the model couldn't be contacted. The model's check went to the last known address, and if it was returned, went into a special account set up for that purpose. Interestingly, some of the agencie's models that I never knew (before my time) got in touch with us and even started working again because they saw the advertisement and called us. Sometimes I just got a "Thank You" note. Either way, found money is good. The photographers were happy because otherwise they could not, by law, (privacy rights not agency contract) have licensed (re-sold) the images.

Hoot wrote:
As an aside;
Could you explain what your term "the model agency client" means? It sounds like the model agency is dealing directly with the client, and not the photographer (or photographers rep or casting director). I've seen that happen maybe three times in four years of bookings in the commercial business in NYC.

studio36uk wrote:
The model agency "client," as I use the term, is the person / entity actually contracting with the agency for the use of the model. Anyone else would be a third party. That "client" MAY be, but is not necessarily, the photographer... but more usually, here, it's the ad agency... seldom is it the factual end user "client" of the photographer or ad agency that is dealing with the model agency.

You will see what I am getting at if you read [highlighted part] from the terms and conditions Para 21 that the agency contract does NOT anticipate that the photographer will ALWAYS be the factual model agency client. Outside of photographic work, and for catwalk shows, it might even be the designer or fashion house that contracts for the models... but there they, as the "model agency client" in that case, are obligated to control the photography done at the show [Para 19 of the agency agreement, noted above, covers this as does Para 21]


The "model agency client" is whoever signs the agreement for the use of the model and obligates them self to pay the agency's invoice. The photographer's "client" is whoever hires the photographer and obligates them self to pay the photographer's invoice. The ad-agency's "client" is whoever contracts with them as the end user of their work product and obligates them self to pay the ad-agency's invoice.

Studio36

Ok, I understand. Because of the difference between the privacy rights here and there, it didn't make sense. Now I got it.

I also understand now why you have sounded so anti-agency. Here, the agency only protects the model's State-given legal rights, and there the agency actually makes up those restrictions. That would suck.

From what I understand of the (UK) AMA, it would be illegal in the US. You're right, there was something like it here, but it was under cover, because price-fixing (anti-trust) is against the law in the US. It wasn't about the way it came into being, it was that an agreement between agencies existed at all. That's my understanding, as it was before my time in the industry.

TXPhotog has linked to a (longer and more detailed than usual for NYC) agency voucher (client agreement) and the standard NYC agency policies. I think you'll find that the differences between yours (UK) and his (US) explain much of our earlier disagreement.

Yuriy wrote:
I disagree. This is just from a model release. All commercial clients receive a license of rights which usually gives them exclusive rights to use of am image for a certain period of time in a certain market and area (unless it’s a buyout or they want it exclusively in all markets). If I license the image to a 2nd client across the country for a different market the client is not cheated because the use of an image does not influence said client at all.

If you license the image to a second client, you devalue the product you sold the first client. Suppose the Verizon Guy ended up in ads for Bell South, or Sprint. Don't you think the people at Verizon would be just a little unhappy? Yes, this is an extreme case, but that's the way corporate advertising thinks. Whatever you sold to them is theirs for the duration of the licensing period, and they usually don't expect it to show up anywhere else in the future.

Yuriy wrote:
The models I have dealt with under those pretenses were paid to completely give up control over an image. The reason I use this is because with all clients that I have dealt with I (technically) hire the models (under contract). The clients then reimburse me for all expenses.

So, the client pays for the images, you talk the model into signing a full release, and you sell them to someone else. You may be thinking you're slick, but that's not a good business practice in the long run. Let me reiterate;

Oh, but you might want to check with the client too. They may have issues with you selling the product they paid for. Legally, depending on the contract, you probably can, but I doubt you would ever work for that client again. Or any advertising agency they work with. I know one photographer in NYC that did just what you are contemplating, but he was new to the business. And, he wasn't around long enough to make that mistake again.

Yuriy wrote:
Then again you are right about agencies. If an agency refuses (or wants too high a price) for full release of an image, then you would have to increase your licensing cost to account for additional model releases. If that is the case... It shouldn’t affect you too much in the end unless other clients (who want to use the same image) refuse your bids or estimates because of price.

I write this all with the frame of mind that my intellectual property is indeed mine, so I try to leave myself enough room to freely use my image unless I am paid to keep it exclusive or something along those lines.

Let me make a guess here. Could it be that you haven't worked much in the corporate realm? I checked out your port and your website, and that's the way it looks. You really should listen to people that have been there and done that. I guarantee that the first time you get caught re-marketing images paid for by a client, that will be the last time you work for them. Also, the advertising business isn't a big world, and word gets around fast.

In my experience, most working commercial photographers (not the super-stars, and not the beginners) have learned to care less about their (client-driven) "intellectual property" unless someone trys to use it without paying for it. They keep their personal work (art) separate from their bread and butter craft. This isn't to say that they're not proud of what they do, but since their client work is usually not their "vision" they figure the job is done when the photos are delivered. The client bought a product, the client paid for that product, the client got the product, all is well. Then they "do art" or whatever on thier own time.

Yuriy wrote:
That is my market and the kind of clients I prefer to deal with. I’ve probably turned down more jobs than I’ve shot, but I sleep better at night knowing that I have full control my images (my current ones anyway) and my future (I got into my own business to do things my way).
So please remember, that you’re right and most clients want too much (rights, images, w/e) for too low a price, agencies don’t want to cooperate, and shit gets all confusing, but you can still do things your way if you tread lightly and talk right… …Or, you can tell them to take their assignment and shove it (not in those words). lol

And when you can show that you work regularly for major companies, I'll take your business plan more seriously. Until then, I think I'll recommend that people stay closer to what the mainstream demands, and gets.

Hoot wrote:
I wrote up about half this reply before figuring out (I think) that the laws governing the use of an individuals likeness are very different in the US vs the UK. I edited the parts that were germain, but understand the difference as you read my post.

On that single issue you are exactly correct... the UK has no general right to privacy OR any established personal right to one's "image" ["image rights"]

I don't, and won't, work under one of those [UK] agency agreements.

Bizarrely, UK agencies under Equity and BECTU [union] agreements provide that there may be a buy-out of the model's rights for video and motion pictures. Buy-outs for still photography is not even, ever, discussed... and that, at least, would solve SOME of the objections I do have with them. Their control of still photos also extends to editorial or other non-commercial uses and even derivative works which is where the courts have come into play in the past.

If I street cast or use non-agency independents I can negotiate the better deal. I have the freedom to use the material editorially or in derivative forms even without a release. You are right, as a general proposition for the photographer... working with agency models here in the UK sucks.

Studio36

Alan from Aavian Prod wrote:
Beyond that, stop arguing.  Nobody will win this one.  There are too many variables.

I dunno Alan, Yuriy and I are going for coffee when we get the chance, and I think both I and studio36uk understand each other's countries laws a little better.

I had no idea that the industry, and privacy/publicity law (none?) in the UK was so different.

Great explanation in your post! It really is a complicated business.

Alan from Aavian Prod wrote:
Beyond that, stop arguing.  Nobody will win this one.  There are too many variables.

Hoot wrote:
I dunno Alan, Yuriy and I are going for coffee when we get the chance, and I think both I and studio36uk understand each other's countries laws a little better.

I had no idea that the industry, and privacy/publicity law (none?) in the UK was so different.

Great explanation in your post! It really is a complicated business.

Enjoy your coffee.  The United States is not the center of the earth.  Laws vary from country to country and from state to state.  That is the problem with these discussions.  What could be right here could be wrong across the country or across the pond.

I take cream and skinny-sugar, BTW.  E-mail me a hot one.

Dave Green wrote:
Thanks for all the great responses everyone. All of this has been really helpful (and entertaining ). Lots of great perspectives on this. Much more info that I could have hoped for!

Responding to: I'm new to this site and it's really encouraging to see that so many people are willing to take the time to respond so thouroghly to questions like this.

Cheers!
-Dave G.

Good, but don't expect it all the time. lol, sometimes we're not this civil.
;-)

Dave Green wrote:
I'm wondering people's thoughts on this: If you're doing paid work for a client and there is a model involved, who should the model release be signing rights to - the photographer or the client who is paying for the shoot? Does this differ depending on the circumstance or should the photographer always have signed rights to the photos?

Thanks,
-Dg

Read your contract with the client and act accordingly.