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Does photographer need model's permission to post?
Please, I need a reply to this from models or photographers. I photographed a model from MM who shall remain nameless. We were to do a TFCD shoot with any full nudity being an extra charge. He wouldn't sign the general model release I had b/c it wasn't specific as to where the pics would go so I asked if he would sign a limited release which basically stated that I would not use the pics for commercial gain and the pics would be used for my personal portfolio and to promote my services. I posted the pics on a website and the model got really pissed and said that I did not ask his permission. In this day and age it is my understanding that photographers have their portfolios posted on numerous sites to either display or promote business. He also said that the site is a gay site and he is not gay. Maybe male models can help me out on this. I get the feeling he attributes "gay" to mean porn. This site is not a paid site. So, it's two issues his not being gay even though I have a disclaimer stating that a posted model doesn't reflect the sexual orientation of that person. Also, it is not a site where I would profit from having his pic posted. Anyway, now he's demanding $500 from me or his lawyer will be contacting me. Was I wrong for not asking permission from him? I don't know how to handle this situation. He asked that I immediately remove the photo from the site, which I did but he still wants the money. I really need help on this as I want to do the right thing as I read so much about models being taken advantage of and I don't want to be that guy. Jun 08 06 12:14 am Link If the model agreed to the shoot he obviously wanted exposure...plus the pictures are your property since you took them in my opinion you dont need permission...I have read this from others as well so I doubt it... Jun 08 06 12:18 am Link Do a search and you'll find that while this problem often frustrates photographers, most agree that the best thing is to take the pictures down. Remember that it was a TFP shoot, a friendly arrangement between you. Don't try to turn it into a hard-edged business matter by muttering over who needs "permissions." Be a nice guy about it and trust in karma to repay you someday. Jun 08 06 12:23 am Link Let's see the release he signed - do I read it right? He signed the "limited" release? Let's see it. There's no way to give you accurate advice without knowing what the release said. Jun 08 06 12:26 am Link By tomorrow noon, you'll get a lot of replies saying "Consult a real lawyer", possibly in caps or accompanied by several exclamation marks. But we all understand why you asked in the forum first. Why see a surgeon when all you need is a first aid kit, right? Still, I must disclaim that I am not a lawyer and I am not giving you legal advice. It's hard to say, without actually seeing the exactly spelling of this "limited" release. Perhaps you can post it on here and let us non-lawyers make a worthless attempt at interpreting it. Also let us know exactly which website you have displayed them. In any case, I don't think you need to panic. Jun 08 06 12:29 am Link ask him in a real email "did you or did you not verbally agree to allow me to use these photos for portfolio purposes" if he answers "yes" then he's bound by the verbal agreement. that alone will hold up in court. he can lie, but then you can sue him for perjury. Jun 08 06 12:32 am Link Photos By Deej wrote: I'm confussed. Why would a site even need a disclaimer when you are advertizing your services. If you posted his pictures on MM you certainly would not have that. Did you tell him what the real usage of his images were going to be for? Jun 08 06 12:37 am Link "I, (Model name), for good and valuable consideration, the receipt of which is acknowledged, give to Photos By Deej!, permission to photograph me and use pictures of me, prints, or digital information pertaining to them, in still format, in color, for his personal portfolio or to promote his photography services. I understand these photos will not be published or sold or be used for commercial gain. I will keep the negatives, prints and/or contact sheet(s) in my possession. " This is what the the limited release completely states. Besides asking for the usual personal information which is irrevelant to this post. The last line is outdated as I've switched to digital. It will be deleted from future releases. Jun 08 06 12:38 am Link As for courtesy, the first thing to do is to remove the picture. TFP/TFCD is not meant to upset anybody. You did so and that's all you had to do. Some clarification: 1) If the model did sign the limited release. You are clear. Put it up his face. 2) If the picture you used were for your own promotion it is okay I have a rule: if the work comes accross as anything that would compromise the model's or photographer's career then it is better not have the work displayed. This is all subjective of course. In this case, the model did not want his image of model being associated with the gay site. He might have the idea that he might be label as such and that his career might get biased because of that. For the current case, simply apologize that you had no intent to offend him and that there is no way that you'll pay him because of 1) and 2). And there is nothing his lawyer but he would waste his time. If I was you I would not use the picture of that model ever. No matter how good they are. He does need exposure from you - no matter how much exposure he might need. (+ he kind of expressed it). Hope that helps. Jun 08 06 12:40 am Link Photos By Deej wrote: Oops. You just published. And this clause has "or" not "and." Jun 08 06 12:42 am Link Macabre World wrote: Ok, that's the thing, I get the feeling from him that gay=bad and it's evident in your post as well. Why would you be upset? Everyone knows websites pop up all the time. Myspace wasn't always here. Do I need to spell out, I'm going to post your photos on this website and so on and I will contact you about any future sites? I use a variety of sites to post my work and all the models I've photographed aren't on all the sites I use. We hadn't even had the shoot yet so not only did I not know how the pics would turn out, I didn't know if or where I would specifically use them? So do I then email him all the possibilities? Where does one draw the line? Jun 08 06 12:44 am Link Christopher Ambler wrote: When I put the word "published", from my understanding published means like a magazine. They have not been published in that regard. I thought pictures were "posted" online? Are we splitting hairs here b/c if published means online then please give me a word that refers to print matter and not web usuage. Jun 08 06 12:49 am Link Photos By Deej wrote: That's the million dollar question! Jun 08 06 12:54 am Link Photos By Deej wrote: If the guy is not gay perhaps he does not want to be associated with a gay site. I could see his friends giving him a hard (no pun intended) time about it. Jun 08 06 12:55 am Link Your release is a bit confusing. It says "not for commercial use," yet it allows for "promotion." Those are generally the same thing. If needs some clarification as to what 'commercial use' is - I assume you mean selling the images for profit is forbidden. That said, if he signed this, you don't need his permission. That said, it's better to just take 'em down and avoid buring a bridge. He may want to work with you again and visa versa. Also, if you need him as a reference and he you, you don't need bad blood between you two. We've taken down photos of models who changed their minds. She appreciated that and we continue to work together. Customer service sometimes means doing that which you don't really want to in the short-term so that you develop strong 'relations' in the long-term. Caio, Tim at Portland Filmworks. Jun 08 06 12:57 am Link As pointed out by Mr. Ambler, I wouldn't use the word "publish" again. The way I would interpret your release is that you are only going to show potential clients these pictures as examples of your work, and not "publish" for public access, like most internet sites are. In addition, I would avoid using the phrase "commercial gain". Because a portfolio is a marketing tool, designed to increase the market value of your commercial services. I assume what you meant was that you would not make direct sales with these images, or in any way, generate direct monetary revenues from them. Lastly, I am a bit confused by the last line where it stated that the models shall keep the negatives? Shouldn't the photographer keep the negatives? *100% non-legal advice* Jun 08 06 01:00 am Link CLT wrote: The website I posted them to which they are now removed is the weblink in my profile. So it's not like I was trying to hide anything. They were not posted with malicious intent. I'm gay. They were posted to the site b/c of my sexual orientation not his. Jun 08 06 01:03 am Link He's insecure Embarrassed and over reacting Not rational. Hard to say if he will do anything about it with lawyers but better to promote peace; I am sorry for that situation and as you already took them down a '' hey buddy its ok '' might calm him down... Explain that pics are down and explain that self promotion of pictures of men might well be on sites where OTHER WORK,or model MEN may be looking or where the public like to see men. let him think it over and say that you will ask him again in near future? but the rights are WHATEVER THE RELEASE SAYS THEY ARE. Good luck Jun 08 06 01:05 am Link Photos By Deej wrote: In that case, I would like to point out that your release is not "complete". Your release simply said that the model gives the photographer the permission to use the model's likeness for whatever purpose. But the more important part of a release is to "release" the photographer from incurring debts or liabilities* from actually using the pictures. Jun 08 06 01:13 am Link Photos By Deej wrote: I can definitely see where he would have a problem being posted on a gay web site. It's probably best that you not use the photos there in my opinion, since this is actually "publishing" the shots. If I were you, I'd just use them in my personal portfolio on non-sexual related web sites. Jun 08 06 01:14 am Link AH HAHAHAHAHA Sounds like you have a stupid model that doesn't understand what he signed to begin with. Your limited release did not seem to have any kind of clause where you share copyright, nor does it state that you guys need permission from either party to use on whatever portfolio you may have. It does state that you guys can use it for portfolio and that's what you did. You did not profit off of them at all. If he presents this in court he will have his ass laughed out for not understanding the written CONTRACT between the 2 of you. He is an insecure model and doesn't want people to think he's gay. That's all. If he can show that you posted that picture up out of a malicious attempt to destroy his reputation that would be the only way he could win the case. It's clear that you didn't have such intentions. However, publishing, whenever you put something on the web you do publish it if it is on a site, but if it is portfolio I do not see that it is actually published. That would be 1 spot that I would see the model might fight about. But... you did not breech the release. The model needs to learn the business and how to read the documents or he just needs to be kicked out. Ignorance in the wording of written documentation you have to sign is no excuse for him. He will just have to put up with it. Jun 08 06 01:16 am Link Now we see why lawyers get paid. Looks like one could argue a bunch of different angles, depending on which one of you was the client. From a practical standpoint and this certainly isn't advice to the legality of things but if it were me I'd A) take down the photos, B) get a more complete release, C) apologize for offending in any manner and then, if he still won't just drop it D) tell him to please just take it up with whomever he feels he needs to. Bottom line is you don't sue someone over $500, certainly if it's not "out of pocket" money with a clear cut wrong like not paying on a lease or something. My own sister wouldn't rep me for a $500 claim. Basically, she'd roll her eyes and tell me to get a life. If you're afraid of a court claim over that and you can't sleep at night pay the guy. Otherwise be as nice as possible and don't worry about it...... Jun 08 06 01:31 am Link The only thing you might be guilty of not explaining simply so the guy could understand what exactly you were going to do with the photos. Then you could both of you have agreed on what you could do. Jun 08 06 01:33 am Link amen. Jun 08 06 01:36 am Link i agree with Tim and CLI on the issue of "commercial gain." This is one of the problems with non-attorneys writing legal agreements. One possible "out" for you, however ... if you do not make money off of your photography, there probably is no commercial gain that can be tied to self promotion. Contingency lawyers spend their time on stuff that they are sure will make money so if you are a hobbyist his chances of any legal success are probably slim because he will probably never get an attorney to represent him - unless he is willing to pay by the hour. Jun 08 06 01:37 am Link I agree with everyone in here who has said you need a more solid release. The release you have is alright but it is clear that it is not prepared in a correct legal manner that a solid release would be. It is in the wording. From what I can tell you did not do anything wrong but the thing is, your release makes sense yes, you got a dumb model yes, your release has HUGE HOLES in it, yes. I did point out a few things that the model could argue in court. You watch your tail. This is a stubborn guy, if you need to consult a real lawyer because it seems as though that model is threatening you for money. $500, you know, it's not much but you could get a lot of things with $500. Jun 08 06 01:51 am Link Tom Sullivan wrote: yep, totally agree. Jun 08 06 01:52 am Link Photos By Deej wrote: This release is aweful. What is a "personal Portfolio"? To me, that means "print portfolio" AND since it is a "personal" portfolio, it could be interpreted to mean that you will not even SHOW the images to Clients (i.e. PERSONAL USE). Jun 08 06 05:48 am Link Photos By Deej wrote: The general rule of thumb after many years in this business.....if you are making money from the models images.....as in an ad for a third party, commercial type....the model should get paid..... Jun 08 06 06:05 am Link Photos By Deej wrote: "published" means, in the most general understanding of the word, distributed in a way so as to make [the images] available to the public... posting on a website meets that definition in the same way as publishing in print... even on a free flyer about your services... for public distribution. Jun 08 06 06:12 am Link Photos By Deej wrote: I read through the whole thread so far. Sorry, but you don't have a leg to stand on. The model expressed concern before the shoot about possible usage of his pictures. He expressed so much concern that you had to revise your model release in order to get him to shoot with you. Jun 08 06 06:19 am Link I am not a lawyer, so this comment should not be construed as legal advice. In my opinion, if you (in your capacity as a photographer) take a picture of another adult (in his capacity as a model), then there is an expectation on both sides that any resulting image may be diplayed by you in such a way that others see it. The fact that he signed a release, something that is not done between friends taking snaps of each other for their photograph albums, indicates that you are both aware of this was an activity between a photographer and model. Also in my opinion, as there has been a misunderstanding between two people, it is reasonable to assume you did not discuss your shared understanding of this activity sufficiently carefully BEFORE using the images for your intended purpose. You may wish to think about that for future occasions and get some advice on the wording of your release form. Furthemore, if I put an image on the internet, so that it could be seen by other people, I would consider it to be publishing that image. There have been many threads on various ways in which people can be offended, so I am sure that everyone is familiar with the concept that certain things cause offense to certain people. Sexuality (like race, religion, social class and relative wealth) can be an issue to certain people. It is both sensible and considerate to take into account other people's feelings on these matters. For example, I am a member of the Executive Committee of the Burma Campaign Society, so I regularly have to reconcile the desire to promote friendship (between former British and Japanese soldiers who fought against each other in Burma in the 2nd World War) and the recognition that some people have the right to refuse to accept the offer of friendship from former enemies. Jun 08 06 06:27 am Link AntoineM732 wrote: I'm going to scream if I hear this lame-ass excuse again. Jun 08 06 06:28 am Link Photos By Deej wrote: So far, nothing in this allows for publication or distribution of those images in any way. Arguably, it only allows you to put pictures into a book and show that book to people who are interested in working with you. Photos By Deej wrote: Passing over the "I understand" clumsiness, this clarly indicates that the model's intent in granting this "release" is NOT to allow publication of his image. Someone on the other side of the courtroom might argue that the "published" that is NOT allowed is limited by the subsequent words to only cases where the images are sold or used for commercial gain, but that's not what, as a matter of logic, the "or" means. Photos By Deej wrote: So you can't sell the images to anyone for any purpose, including editorial use. Photos By Deej wrote: And you can't use them for "commercial gain" (except, perhaps, in promoting your own photography services). Photos By Deej wrote: Yes, we know that this refers to the film/hardcopy print world, and that these pictures were digital, so there are no negatives or prints. However, from the standpoint of determining what was in the model's mind that he thought he was agreeing to, we need to look at what that wording means, and then extend it to digital. Jun 08 06 08:34 am Link Well I have to agree with most of the posters here, you really need to rework your limited release. I'm not a lawyer either, but have read a lot of legal paperwork on the need and neccessity of model releases. As already mentioned, yours has some holes in it: I think most judges would consider that "publish" would apply to Internet posting. Checking a legal dictionary gives a definition of publish as: "to make public to at least one other person by any means." And although you have a provision "to promote his photography service" you then basically contradict it with "not for commercial gain". From my understanding, courts HAVE decided that images in a photographers portfolio are considered self-promotion - and, if you are in photography to make money, self-promotion is considered commercial use, which is why a model release is required even if you only intend the photographs to be in an offline portfolio. Jun 08 06 09:15 am Link I almost don't see the point of getting into this disucssion because it is so absurd. You got accurate information from Studio36uk, Bang Bang and TXPhotog. I am truly amazed at the bad advice many are giving you. Let's get to the most basic issues. Your release says that you won't publish the photos. You take that to mean not put them in a magazine. The industry and most courts consider the net publication. Case law has found the Internet to be publishing. Indeed, there have been court cases that have said merely displaying a photo in your studio can be publication, but from the nature of your release that appears to be what you wanted to do. That whole argument aside, you prepared the release. If it is ambiguous, and this document is very badly written, it is most probably going to be construed against you since the model couldn't possibly read your mind. If the model believed, as he reasonably did, that not published would include not putting it on the web, a court would most probably accept that interpretatoin. TXPhotog got it right on California law as well. Read it yourself: http://caselaw.lp.findlaw.com/cacodes/c … 3346.html. In California, publishing a photo to promote your business is generally commercial use. There are statutory damages for using a likeness without a release, and in this case, the release specifically forbids publication. Save yourself a lot of trouble. Take the photos down. If that doesn't satisfy him, it might be less expensive to just pay the $500 since even contacting a lawyer will cost you more. Bear in mind, if he hires a lawyer and wins, under California law, you might well be required to pay his legal fees. This is not legal advice, just the ramblings of a CA photographer, but in my view you simply did the wrong thing. I am sure it wasn't intentional, but no matter what arguments and rationalization you make here, you stepped over the line when you published the photos. Jun 08 06 09:18 am Link I agree with TX. Your release is kind of vague but it sounds like this model has a case. And it sounds like you didn't really explain to him about your site. I know you said it was a link on your mm page, but he may not have looked at it so he didn't know that it would be on that type of site. He is probably afraid of what kind of a reputation he may get from that kind of publicity. There is a difference between posting something in your portfolio and posting something on a site which would leave his sexual orientation in question. Jun 08 06 09:20 am Link Sorry, but you screwed up. Your screw up had to do with the mistake so many photographers whose only real experience being on the net and not in the real world; you decided to write a legal document with no kknowledge of how 'words' are used and defined. A model release is a specific legal document and every word in it has a specific meaning. Organizations such as PPA and other spent decades in court in every state in the coiuntry, working out specific meanings for those words and phrases, definitions which have now stood the test of time and are accepted in civil courts. In specific, you wrote "... will not be published or sold ...", then you published them, the key words there being "or" and "publish". As for your current situation with the model, you are fried. Granted you had no intent, but you did screw up. I would suggest doing whatever you can to make the model happy, then spending a hundred or so bucks to have an attorney write up a standard release for you and explain the specific meanings of its terms to you. Never use the release you wrote again, it's awful. In the future, remember that eery word in a release is there for areason and when they are changed the meaning of the release may be changed. Jun 08 06 11:02 am Link IS THIS OF ANY USE TO YOU? Site or Sites Model Release Form My name is ___________[name of model] ___________ . I am over 18 years old at the time of signing this Model Release and I was over the age of 18 at the time that the photographs, drawings, digital renderings and/or graphic materials using my likeness (Works) were made by __________[name of model]_____________ (Artist) on or about __/__/__ . I understand that Artist is a member of an Internet community called Site or Sites found at www.Site or Sites.com. Graphic materials and other artworks such as the Works are made available at Site or Sites.com for viewing and for purchase, among other applications. The Works will be viewable by anyone accessing the Site or Sites website and may also appear at other places or times as authorized by Site or Sites. This release is made specifically for the benefit of both Artist and Site or Sites. I confirm for the benefit of Artist and Site or Sites that I knowingly appeared nude and/or semi nude as part of my participation in connection with the Works and that the Works may contain images of my body in suggestive and possibly erotic poses. In return for my participation in the Works of Artist and for their exposure through Site or Sites and in return for other considerations and other agreements I may have made separately with Artist about the Works, I give the following rights and make the following releases: a) Artist and/or Site or Sites have the unrestricted right and permission forever to use, including to publish, display or to transmit, and to copyright and republish pictures or other images of me (or incorporating or based on my likeness) intact or distorted without restriction as to changes or transformations or reproduction and made or distributed or sold through any and all media now or later developed and for any purpose whatsoever; except that separate permission and negotiation will be required for the use of my image as contained in the Works as a sale or lease to a company other than Site or Sites for use in the direct advertising of its products and/or services. b) I release, discharge and agree to save harmless Artist and Site or Sites their legal representatives or assigns, and all persons functioning under their permission or authority from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form whether intentional or otherwise, that may occur or be produced in the rendering of the Works or in any subsequent processing and/or distribution of the Works, as well as any publication of the Works, including without limitation any claims for libel or invasion of privacy. I confirm that I have no expectation of receiving any money or other items of value directly from Site or Sites and that Site or Sites will have no financial obligations to me whatsoever in return for the rights I am giving it under this model release. Signed:_____________________________________ Date __/__/__ Address:________________________________________________________________ City:__________________________ State: ________ Postal Code:_________ Country:____________________ Phone:_____________________________ I ______[Artistâs Name]_______ confirm that this Model Release was signed in my presence by ______________ [modelâs name]______________ and that I was presented at the time with adequate proof of age showing him/her to be over the age of 18. Jun 08 06 11:26 am Link AngelFishSolo wrote: It won't really be of any use to the OP since he presented the model a release and he declined to sign it. Jun 08 06 11:32 am Link |
