Posted by Tim Downin: 
I was wondering if anyone could point me to a readily accessible release form designed to grant useage rights to a MUA.  I've had a MUA request that I do some portfolio shots for her and I would like to grant her portfolio usage, but not commercial, rights to use the photos since she's not offering to pay for the shoot.  Thanks!

Tim, you can just use the standard TFP model release, such as the one here

http://bobcannonphotography.com/TFP%20M … elease.htm

and then use your favorite word processing program to change all instances of the word "myself" to "my makeup work", and change "model" and "modeling" to "makeup artist".

Posted by EmElle: 
A separate release form... no one has ever had one that I'm aware.  It's incredibly rare for a makeup artist to even be in a position to sell a photo.  They can generally only use it for self-promotion, including their own portfolios, websites, comp cards, mailings, and perhaps ads in a publication promoting their services.

I guess I'm missing the reasoning behind a request.  For 99.9% of the work and people involved, it's simply unnecessary and is a non-issue.

This is an interesting legal problem. In the UK [but not in the US] there does not have to be an express intention to create a work of joint authorship, HOWEVER, in both cases the MUA is creating some kind of unique element (in the make-up) that the photographer is imaging. The MUA would have a © interest in their work and the photographer in theirs. The photo however would show the © work of both the MUA and the photographer. Therefore, the MUA could prevent the photographer, by reason of their © from exploiting the photograph without a license and the photographer could prevent the MUA, by reason of their © interest in the finished photo, from using the photo without a license.

Exactly because of this there is every reason to cross license IN WRITING the work of both the MUA and the photographer and that license should be one formed as a "non-exclusive" type. Alternatively the MUA could sign over copyright itself in the MUA's work to the photographer in exchange for a perpetual non-exclusive license in the IMAGE from the photographer. The second is a better alternative because the full © title is perfected and rests with only one of the parties.

This same problem goes even further if there is an art director; stylist; maybe a hair stylist; and others (e.g. a scenic painter creating a background); EVEN THE MODEL, contributing creative input to a photograph. They would all have, in fact not only in theory, an initial © interest in their individual creative contributions.

The only way to be absolutely SURE of who can do what in the future is to CYA with paperwork.

UK copyright law, where I work, makes them ALL joint authors AUTOMATICALLY, and joint OWNERS of the ©, unless they assign their individual © interest to the photographer. Potentially some dangerous ground there if a dispute arises later about usage.

One similar US case [California] was that of an art director and photographer who collaborated in a photograph. The photographer later licensed the use of image and the art director  sued for 50% of the money. The court held that the art director was a joint author and thus owned 50% of the © and for that reason was entitled to 50% of the profits. In other US cases the courts have gone the other way.... but is it worth the risk?

Studio36

Posted by studio36uk:  UK copyright law, where I work, makes them ALL joint authors AUTOMATICALLY unless they assign their © interest to the photographer. Potentially some dangerous ground there if a dispute arises later about usage.

No it does not. Nothing in the CDPA or relevent UK case history suggests that for the specific situation of photographer, MUA, model, client etc working on a shoot. 

Posted by piers: 
No it does not. Nothing in the CDPA or relevent UK case history suggests that for the specific situation of photographer, MUA, model, client etc working on a shoot.   

Suggest you look here Piers:

Joint Authors and Copyright - UK - 2 recent cases

Brighton and Doublejoint v Jones; Judgement handed down in this case on 18 May 2004
case summary at:
http://www.simkins.co.uk/ebulletins/arc … thors.aspx

Comment by Simkus [a London IP law firm]: "...Whilst this case concerned primarily rights in relation to a dramatic work, the principles might just as easily apply to the evolution of a film or television script, a novel or a musical composition.  There are lessons to be learned by all involved in the creation and exploitation of copyright works, not only with regard to the nature of copyright when two or more authors are involved, but also as to the extent to which a work may be copied without actually reproducing any part of its physical manifestation and the potential scope of an implied licence to exploit a work. Yet again the desirability of the parties entering into clearly drafted written agreements at the outset has been illustrated."

Also:

Beckingham v Hodgens and others; Chancery Division; 2nd July 2002
case summary at:
http://www.humphreys.co.uk/articles/l_copyright_3.htm

IF you get stuck in with someone advancing a similar claim on a photograph these two cases would be in the forefront leading the court's decision.

It is also, CLEAR AND UNAMBIGUOUS in the [UK]CDPA that the case for joint authorship is prima face where any two or more contributors of independent creative input create a combined  work from which the individual contributions can not be seperated in the finished work. They HAVE created a joint work. Beckingham v Hodgens proves that even more directly, and to the point, than the Brighton and Doublejoint v Jones case.

If you have a problem with my estimation of the situation on this ask an IP lawyer where you would stand.

Studio36

Posted by studio36uk:  If you have a problem with my estimation of the situation on this ask an IP lawyer where you would stand.

I do, I have and the results are as stated in my previous post.

With regard to photographer, MUA, AD and model you came closer with your suggestion above that a MUA might have a claim for copyright of the make up. That would create the situation of the photograph containing another, distinct copyright work. Likewise a stylist or designer. This situation is described in the CDPA.

However that is very different to automatically being joint author.

I asked very specifically if there was any precedent for a stylist or AD on a photographic shoot to have a claim to joint authorship and the answer was an unequivocal no. The comment was made that, should it ever occur, such a judgement could be described as 'our worst nightmare'.

It is that last bit that makes me very uneasy about posts such as yours. Keep saying something, even if it is wrong, and eventually someone will believe it.

Posted by EmElle: 
Have you actually found an untrustworthy makeup artist?  Is s/he selling or attempting to sell your images?  No legitimate entity would buy an image from a makeup artist, because they would know that s/he is not the copyright holder.  They would ask for your permission, and of course the money would go to you.

I guess I'm missing the reasoning behind a request.  For 99.9% of the work and people involved, it's simply unnecessary and is a non-issue.

I fail to understand the negative connotation that is implied here.  It is not that I feel that I have found an untrustworthy MUA, but more that I don't want there to be any ambiguity or miscommunication with the situation at hand.  Even if this were someone that I knew well, I would still expect a signed release form, you never know what turns the road of life will take and I would like to be prepared and know that my rights are protected.

The intention of this post was more to find out what, if anything, is commonly used in this situation and if nothing is, what creative suggestions would be made to tackle the issue.  So far I'm liking what has been suggested.

My understanding has always been that, unless otherwise stated specifically in writing, the photographer ultimately holds the full copyright.  If certain key details in this situation were different, I would probably be more inclined to grant the MUA as much as 50/50 copyright for a project like this, but unfortunately those conditions have not been met.  I'd like to make sure that before I ever shoot a single picture all of my proverbial ducks are in a row and that we are all completely clear where we stand on this issue at hand.

Posted by piers: The comment was made that, should it ever occur, such a judgement could be described as 'our worst nightmare'.

I made no such comment.

The issue of automatic creation of joint authorship was taken up in the Beckingham v Hodgens case and the court re-stated the DPCA as the authority. The court said there, that there does NOT have to be an specific and express agreement to create a joint work (DPCA) but that it can come about merely by the fact that there were several contributors of independent creative input to the whole... and that in the finished work they could not be separated. In that case a session musician playing an independent self directed riff intertwined his own creative work with the sheet music the rest of the band was playing from. It was sufficient to give him joint authorship rights.

In the US the situation is different because there must be an intent (express or implied) to create a joint work... but not, apparently, in the UK. The US position therefore is one of "opt in" where the UK position is one of "opt out".

What I do advocate is heading off any possibility of a claim "at the pass" by using appropriate "opt out" documentary evidence of just who owns what.

You know and I know that some judges are good; some are bad; and some are just dottering old fools. Want to chance it which one you will get?

Studio36

Posted by Tim Downin:
I fail to understand the negative connotation that is implied here.  It is not that I feel that I have found an untrustworthy MUA, but more that I don't want there to be any ambiguity or miscommunication with the situation at hand.  Even if this were someone that I knew well, I would still expect a signed release form, you never know what turns the road of life will take and I would like to be prepared and know that my rights are protected.

I brought it up because in my 10 years doing makeup and hair, this has been addressed casually all of once, and that photographer never insituted anything.  Usually this sort of thing isn't really even thought about, that I'm aware, because the photog knows he holds copyright, and in all cases would be protected under the law.  This type of thing seems to me would only come up for the average photog if someone was deliberately screwing with said photog.

However, now that I think more about this, I suppose it makes sense to be prepared.  Case in point, I know one makeup artist who commissioned a shoot for a magazine, to show off her work.  It was published as promised.  I don't recall what she was actually attempting to do with the images (I think trying to get negs), but she found that although the shoot was designed solely for her art, she did not own the images.  The photog didn't cough up anything, and rightly so under our laws here.  In such a situation like this, it would make sense to have a clear discussion, especially in writing, as to who owns what.

It might also be smart to do this, because I have found many instances of new makeup artists who don't know any better who claim copyright or joint copyright on images in her portfolio, when it's clear nothing like that exists.

However, it's usually not done, and has never been done to me. 

I appreciate the discussion on UK copyright law.  That was something I was not aware of.

Posted by EG Photography: 

Posted by Tim Downin: 
I was wondering if anyone could point me to a readily accessible release form designed to grant useage rights to a MUA.  I've had a MUA request that I do some portfolio shots for her and I would like to grant her portfolio usage, but not commercial, rights to use the photos since she's not offering to pay for the shoot.  Thanks!

Tim, you can just use the standard TFP model release, such as the one here

http://bobcannonphotography.com/TFP%20M … elease.htm

and then use your favorite word processing program to change all instances of the word "myself" to "my makeup work", and change "model" and "modeling" to "makeup artist".

Posted by studio36uk:In the US the situation is different because there must be an intent (express or implied) to create a joint work... but not, apparently, in the UK. The US
position therefore is one of "opt in" where the UK position is one of "opt out".

No it isn't, at least not for the speicific situtation faced in this thread.

Once again, the advice I have been given from a well respected firm of IP specialists is that there is no precedent that would suggest that a stylist or AD on a photographic shoot would have automatic joint authorship of the photograph(s). They may have a claim to copyright in an underlying work - but even that would not be automatic.

Is it your guess that the cases you keep quoting would apply in the specific situation of AD/stylist (and by extension, MUA, and worse, client) v Photographer? Or have you received specific, qualified legal advice that those cases are relevant? If the later, then fair enough, we have a conflict of qualified advice - and the lawyers are keeping themselves in business. If not you are simply jumping to the wrong conclusion.

Oh, and to clarify, the comment about nightmares was made by a leading industry figure also present at the time in response to the answer given to me by the IP specialist. Your suggestion that you can just amend your terms to counter such a nightmare implies you don't understand the ramifications.

Posted by EmElle:This type of thing seems to me would only come up for the average photog if someone was deliberately screwing with said photog.

Unfortunately it does seem on the increase. Not necessarily maliciously but clumsy. Typical examples being someone posting images from a client shoot before the client has done so, publicy displaying images that have not been released by the photographer - and, admittedly more with models, signing waivers for publication that the model doesn't have the right to do so.

Posted by piers: 
Once again, the advice I have been given from a well respected firm of IP specialists is that there is no precedent that would suggest that a stylist or AD on a photographic shoot would have automatic joint authorship of the photograph(s). They may have a claim to copyright in an underlying work - but even that would not be automatic.

Is it your guess that the cases you keep quoting would apply in the specific situation of AD/stylist (and by extension, MUA, and worse, client) v Photographer? Or have you received specific, qualified legal advice that those cases are relevant? If the later, then fair enough, we have a conflict of qualified advice - and the lawyers are keeping themselves in business. If not you are simply jumping to the wrong conclusion.

Yes I have asked for and obtained qualified advice. And yes, there are two different scenarios possible - one, that you note, is that there may be underlying copyrighted works but not involving joint copyright. The second involves an element of timing that is implicit, but not spelled out in extent, in the DPCA. Advice given to me on both points went something like this...

Underlying works - but with two distinct copyrights The first work will have typically been made at a different time and to a different end but imaged in a later photo. One of two characteristics can be assigned: 1) Incidental inclusion - permitted under the DCPA with nominal restrictions; - OR - 2) Such underlying works featured as the predominant element of the later made image. The photo then, in the second case, would be best described as a derivative work. There WILL be copyright implications but copyrights will be held separately by the two creators, that of the original work and that of the maker of the derivative - the photographer. The extent of permissible use of the derivative work might be in question without clearance from the copyright holder of the underlying work.

Joint authorship arises as a principle in the DCPA when two or more people collaborate at the same time to create a work incorporating the creative elements contributed by (both or all) into a single work with a single end - AND - where in the completed work (per DCPA) the contributions of each to the whole can not be separated. It is in that case where Beckingham v Hodgens becomes the relevant precedent on joint authorship.

It is also there, in joint works, that I am advised that one can contract out of the difficulty by consolidating the copyrights into one ownership or by licensing. This is very, very, common for example in commercial film production to the extent that all parties defer copyright in their individual contributions to the producer (or director, as the case may be - it could be either) but almost always still assert their individual moral rights (which can never be sold or transferred) Thus you see movies with credits longer than the film itself - but where the copyright in the whole work is perfected in, and owned by, only one party.

Another element that seemed to come into play, at least in the court's published deliberations in Beckingham v Hodgens was that of the extent of direction given to one or more of the contributing parties relative to their contribution. The more direction the less strong the claim, apparently. Thus someone that is working independently and self directed, and here we could consider the AD, the MUA and the stylist - in stills work) could be in a stronger position than someone being closely directed (e.g. the photographer's assistant). Someone who is a factual employee performing (and contributing to the work) in the course of their employment would have no contributory claim.

We are not that far apart here Piers, we both recognise the underlying principles. It is only the perspective that each of us, and our respective legal advisor, has on the problem of who owns what in the circumstances, where we differ on the detail.

The case of an AD v photographer has been heard in the US - and the photographer lost.

CORRECTION FROM MY ORIGINAL POST

From memory I believed that this was heard as a contract case in state court... it wasn't. it was heard as a copyright case in the US federal courts. I went back and looked for it again. I'm trying to get the exact court citation for it.

The case was heard in the 9th US Circuit Federal Court of Appeals; [apparently the decision was handed down on February 15, 2002]

You can find it here as:
The Art Directors’ Rights In Commercial Photography

http://www.artlaws.com/rightsin.html

and here

http://www.artlaws.com/ArtDirectorandPh … rticle.htm

True, there are no specific precedents like this one on stills photography in the UK but as we, as a society, become more litigious one will surely come along in not too many years.

Studio36

Posted by Tim Downin: 
I was wondering if anyone could point me to a readily accessible release form designed to grant useage rights to a MUA.  I've had a MUA request that I do some portfolio shots for her and I would like to grant her portfolio usage, but not commercial, rights to use the photos since she's not offering to pay for the shoot.  Thanks!

This is a somewhat unusual notion you have.  If the make-up artist is using work for her portfolio, and the portfolio is designed for seeking additional work, then doesn't it stand to reason the images are commercial in nature?

Just what is it you are worried about?

Posted by Ched: 
This is a reason for the $20-25 kit fee. When the model pays the MUA the kit fee, they are buying the looks on themselves, and therefore if the photographer gets the release from the model who has paid the kit fee, then they are obtaining an extension of the model's rights which come from using the MUA as work for hire. But I'm not a lawyer.

I am baffled by this statement.  It makes no sense at all.  The reason for the kit fee is to "rent" the kit and cover supplies used.  Not to buy looks.

First, no model has ever paid me a kit fee, they pay my rates.  They pay my rates because they are not bookworthy for my portfolio.  However, in the rare event that that lucky shot came about, I get my usage rights from the photographer, not the model, unless the model managed to negotiate ownership of the images (has never happened in my experience).  The model paying me or not paying me has nothing at all to do with it.  The photographer may request a fee from me for the post work, handling, and shipping of the image, but they usually don't as an act of goodwill, to continue my working relationship with them (which is their choice, not anything we've negotiated).

Any model I do not charge, it's simply because I believe that she, the photographer, the styling, the concept are all bookworthy, which means I get usage rights anyway the moment she signs the release the photographer hands her.

My only usage rights are and have always been for promotional use.  In a narrow view, that is a commercial venture, but a test shoot is a commercial venture for everyone involved.  Level playing field.  However, in the general view, promotional use is simply that, and a commercial venture is one where I am offered money for THAT shot.  Not offered money for my services on future shoots.  I cannot legally sell THAT shot.  Therefore my usage is limited.

To the original poster, if the shoot is potentially bookworthy for you, I can see why you aren't charging her.  But if you're pretty sure that it's not bookworthy for you, you should charge her.  Or perhaps negotiate a trade.  Make sure she does some shoot worthwhile for you, and in return she gets her shoot.  You can even write up a specific contract for that.  In fact, I have a testing agreement contract (I think) that you could modify for your use.  It's actually a contract from a makeup artist to testing photographers to guarantee she'll get her images.  Email me at [email protected] if you're interested.

(the reason I think I have this is that I forgot all about it.  I've had rare occasion to use it, as I trust the shooters I've been working with.)

Having something that spells out explicitly in writing that says she has the right to use them to promote herself, but stops short of allowing her full commercial rights to sale the images.

Posted by theda: 
You don't need a release form for a MUA, as the MUA's likeness isn't being photographed. 

What you're asking about is a copyright waiver to allow the MUA usage right. Such a form would be the same for an MUA as for anyone else you're granting limited usage to.

Exactly.  Sorry if I haven't been quite as clear as intended.  Do you have a good one that you can point to?

Posted by EmElle: 
To the original poster, if the shoot is potentially bookworthy for you, I can see why you aren't charging her.  But if you're pretty sure that it's not bookworthy for you, you should charge her.  Or perhaps negotiate a trade.  Make sure she does some shoot worthwhile for you, and in return she gets her shoot.  You can even write up a specific contract for that.  In fact, I have a testing agreement contract (I think) that you could modify for your use.  It's actually a contract from a makeup artist to testing photographers to guarantee she'll get her images.  Email me at [email protected] if you're interested.

(the reason I think I have this is that I forgot all about it.  I've had rare occasion to use it, as I trust the shooters I've been working with.)

I don't think it's so much "bookworthy," but I agreed to do it because I thought it sounded like a fun shoot to do.  The MUA wanted to attempt to portray depictions of the bubonic (sp?) plague for a type of interview.  I had never seen her work, so I didn't even know her standard of performance.

The excersize in legality is more for my benefit, mostly to keep myself in the habit of broaching the issue, as I have been very lax about it in the past.  She and I have a standing arrangement and I feel we know what each other expects, but I don't want there to be any ambiguity, or a 'convenient' miscommunication later down the road. 

I would love to see your contract, I'll shoot you a personal email.

Posted by modelmayhemstoryhubcom: 
In accordance with US Title 17 The MUA has copyright in the artwork created on the face of the model just as a painter has copyright in a painting he created.  The photographer has copyright in the photo image, but it is not exclusive if it contains other copyrighted works.  A photographer can not photograph a painting, statue, sign, logo, or other copyrighted work and expect exclusive copyrights to the image.  He must obtain rights to the included work before he can seek commercial gain.  If the photographer can show in writing that the included copyrighted work is a "work for hire" then he can claim exclusive rights.  So if he hired the MUA to perform a "work for hire" then the MUAs copyrighted work is owned by the photographer.  However, if a photographer's client can show that the photographer and the MUA were hired then the client can claim exclusive rights.  This is true unless the parties negotiate other arrangements in writing.  If no release exists then the default rules apply.  The MUA has copyrights to the artwork on the face, the photographer has copyrights to the photo image, and the model has copyrights to their likeness.  No party can legally use the image for commercial gain without resolving the default rights in writing.

Storyhub

I know of no instances in which MUAs have actually held copyrights to simple make-up jobs. Perhpas for something elaborate and unique, but it the work isn't recognizable and distinct, it's not copyrighted.

Posted by modelmayhemstoryhubcom: 
If no release exists then the default rules apply.... No party can legally use the image for commercial gain without resolving the default rights in writing.

Storyhub

It gets better than that, or worse, depending on which side you're on

I take issue with the limit you note on commercial gain though that is one element of the problem where there is no agreement on rights at all. The default position where there is no employment and no work for hire and no written rights contract may be that of implied license.

Implied license is a state of being that is not a property right such as copyright is but rather a personal one. An implied license can be rescinded or withdrawn at any time by the person granting it. No reason is even necessary. An implied license, further, can NOT be transferred from the party to whom it is first given to any subsequent party. Thus, an implied license from the AD or MUA or stylist or model to the photographer does not give the photographer the right to authorise ANY other party, under the same implied license, to reproduce the photographer's image containing the copyright work of any of the others. He may only do so (make copies) himself. It matters not that it is commercial or non-commercial repro. Thus, the photographer could make copies and distribute them to the shoot participants but he could not authorise them individually to make further copies for their own use... e.g. by supplying a CD of the printable images for them to print and use in their portfolios or comp cards... or passing on for distribution to their agents who would reasonably want to make more copies for their use... and so forth. The photographer may [or may not] be able to post the images to their own website but certainly could not authorise anyone else to do the same. Ect, ect. Commercial value would be near nil because any publisher would not buy on the basis of implied licenses - publication rights are only an illusion unless completely and legally cleared regarding each and every underlying work and usage.

Implied licenses are worth exactly the same as value of the paper they are written on.

It is interesting, though Piers disagrees with me, that in the key UK case I have mentioned [Beckingham v Hodgens] Hodgens used the music part written and performed by Beckingham, and incorporated into a larger work written and performed by Hodgens, under an implied license. Beckingham later rescinded that license and sued for part of the profits of the whole song production [his part + Hodgens part] under the theory that it was a joint authorship composed of both the creative contribution of Hodgens and himself and those parts were inseparable in the final work. The court agreed with Beckingham 1) that he could rescind the (any) implied license; and 2) that in UK law there need not be an express agreement to create a work of joint authorship; and 3) that in the circumstances Beckingham was a joint author and this also jointly owned the copyright in the completed work; and 4) that as joint copyright owner Beckingham was entitled to a share in the profits realised by Hodgens' commercial exploitation of the work for the life of the copyright

The implied license in this case was worth, to Hodgens, EXACTLY the same as the value of the paper it was written on. In fact, failure to get his duckies in a row at the onset cost Hodgens a bundle, because, by the time Beckingham sued, the song was a commercial success.

For those in the US the concept and principles of implied rights carry over to US legal practice, as well, and could have nearly the same results for anyone who relies on them.


Studio36

Posted by Tim Downin: 
I was wondering if anyone could point me to a readily accessible release form designed to grant useage rights to a MUA.  I've had a MUA request that I do some portfolio shots for her and I would like to grant her portfolio usage, but not commercial, rights to use the photos since she's not offering to pay for the shoot.  Thanks!