Yummee wrote:
Hello to all,

I am going to do my first photo shoot and it's a TFCD.
I have spoke with the photographer and he is very well interested and so am I. I am not as experienced as some of you so can anyone give me some ideas as far as where to look for "this particular" kind of contract? I know that some things are pretty much obvious because of the conversation we had but I don't want any misunderstandings. After all this is a business and legal paper work is very necessary. I have searched on-line only to get to a bunch of sites you have to pay to get the contract. Not even sure if the contract that they will provide will cover all I want to be included ( if you know what I mean). I'm going to the library today....so can anyone give me some helpful advice. It's greatly appreciated!!! Thanks to all *~YUMMEE~*

what is it you think this "contract" is going to do for you...if the photographer doesnt live up to what he promisies, are you going to retain legal representation to inforce the contract...for TFP images?...no offense yummie, but this borders on ridiculous...all the photog has to do i say the images were lost...the film was ruined or the media was corrupt...if you dont trust this photog..dont work with him/her.

Looknsee Photography wrote:
I would think that a model release would be appropriate -- especially for the photographer (who would typically retain the copyrights of the images).

A contract is probably overkill, but it is a good idea to take a little time to clarify expectations.  For example: 

   >>>  When & where is the sitting?
   >>>  What is everybody's contact information (e.g. cell number)?
   >>>  Who will be in attendance at the sitting?
   >>>  Who is providing makeup & wardrobe?
   >>>  How many images do you expect from the photographer?
   >>>  Are these images edited or unedited?
   >>>  Will the images include the photographer's logo?
   >>>  Will the images identify the model?
   >>>  What size are the images?
   >>>  What are the model's usage rights?
   >>>  When should the model expect the images?
   >>>  etc.

In general, I know it's a bother, but it is a good idea to make sure that everybody concerned is on the same page before anyone invests time & money.  If you don't do that, then one of you is likely to start a negative thread here in the forum complaining about how the other party did you wrong.

a "model release" protects the photographers useage of the images..nothing more..how would that help this model?

Yummee wrote:
Is a contract a good idea for TFP or TFCD?

No but a release would cover your ass

C R Photography wrote:

No but a release would cover your ass

No, it wouldn't.  A release covers the photographer's ass.  That's what it's for.

Scott Aitken wrote:
Normally, due to copyright laws, you can not edit the photos the photographer gives you (other than resizing them) without their permission.

This argument has been made before, and I have yet to see a credible case made for it.  Photographer's pictures are edited all the time, and notwithstanding the unfortunate reading of "derivative work" by one of our members, there is nothing in copyright law that prohibits it.

David Green wrote:
A fair release should protect the model, too.

then, its not a model release...:::::sighh:::: it would be an agreement...

David Green wrote:
A model release IS a contract. Any agreement, even verbal, between a model and a photographer may be legally construed as a contract.

Not true.  A release is a grant of rights from the model to the photographer.  There is no reason why it has to be a contract.

David Green wrote:
That's why it is important to have a release, even for TFP/TFCD work, especially if any of the parties involved has professional aspirations. It doesn't just protect the photographer (though at the minimum, it does just that). A fair release should protect the model, too.

Releases protect the photographer.  That's what they are for.  A release grants the photographer certain rights.  It does not protect the model.

When working with agency models, the equivalent to a "TFP" is a "test".  It is a shoot in which the model and photographer both get to use the pictures for their portfolios and to market themselves.  No releases are signed, because they are not necessary.

David Green wrote:
Yummee, you should have a release. It should give you certain assurances: That the photographer won't use the images to promote illegal activities; that it will not be modified in a way that could embarrass or libel you; that it will not be used to promote sexual services. (The last one, of course, you would delete if you are indeed posing nude or for adult pictures.)

And if she does not sign a release, she is not protected against these things?  No.  A release DOES NOT improve a model's rights in the way a photo will be used.

It certainly is possible to have a contract between the model and the photographer which does protect her rights, but it's not "a release" - it's a contract of some other kind.  (Yes, such a contract could also contain release clauses, but that still makes it a contract of some other kind.)

David Green wrote:
It should detail that the photographer will give you images, whether those images will be retouched; whether they are electronic or print. My release only promises a CD of my picks of unretouched images, but depending on the shoot, I may give a model more...

The release should also say whether the photographer will give you high-res or low-res images, and what you may used the images for.

And this will do what?

A release needs to be signed by the model.  Nothing signed by the model creates any obligation by the photographer.  Only if the document is signed by the photographer is that obligation created.  And when that happens, it's not "a release" any more.

Looknsee Photography wrote:
I would think that a model release would be appropriate -- especially for the photographer (who would typically retain the copyrights of the images).

Doug Swinskey wrote:
a "model release" protects the photographers useage of the images..nothing more..how would that help this model?

I said that the model release is especially good for the photographer.  It helps the model in that it ensures that the model understands that she doesn't have any of the copyrights to the images.

Looknsee Photography wrote:
I said that the model release is especially good for the photographer.  It helps the model in that it ensures that the model understands that she doesn't have any of the copyrights to the images.

A release has nothing to do with copyright.  It doesn't help her understand anything about copyright. 

A release has to do with only one issue:  the model's rights to control use of her image.  Nothing else.

TXPhotog wrote:

This argument has been made before, and I have yet to see a credible case made for it.  Photographer's pictures are edited all the time, and notwithstanding the unfortunate reading of "derivative work" by one of our members, there is nothing in copyright law that prohibits it.

It *could* be considered willful destruction... but that would be a stretch of an argument...which is what lawyers get paid for.

Heidi Brennan wrote:
Why don't you guys cut her some slack, she said that this is her first shoot. Perhaps she isn't quite sure yet of how all of these things are handled?

This isn't that type of business...if she can't handle a little harshness in the help she gets then she's going to have a real hard time of it when people tell her she's ugly or fat or any of the other numerous put downs models get.


If it's your first shoot here's what I would recommend:

ASK THE PHOTOGRAPHER!

- via email ask the photographer what to expect exactly from beginning to the end...this way you have a written proof of what your expectations are and what the photographer is offering you for your time.

- if anything about what you expect is not included ask the photographer if he will agree to including it.

- keep all copies of these emails

- if anything the day of the shoot does not go according to what you have negotiated to expect, ask the photographer if you can leave/end the shoot and let him know you weren't expecting such and such.

- as part of the negotiation process in the emails be sure to get a timeline for delivery of photographs...if they aren't delivered in that timeline feel free to bug him about it.  Also if you feel your time is very valuable negotiate a non-delivery amount, a dollar amount that will cover your time should the photographer be unwilling or unable to deliver the photos.

James Jackson wrote:
It *could* be considered willful destruction... but that would be a stretch of an argument...which is what lawyers get paid for.

Willful destruction of what?  She has no obligation to maintain it, she can delete it or burn it at will.  She can also retouch it. 

The photographer retains his original, so nothing has been "destroyed".

James Jackson wrote:
If it's your first shoot here's what I would recommend:

ASK THE PHOTOGRAPHER!

- via email ask the photographer what to expect exactly from beginning to the end...this way you have a written proof of what your expectations are and what the photographer is offering you for your time.

- if anything about what you expect is not included ask the photographer if he will agree to including it.

- keep all copies of these emails

- if anything the day of the shoot does not go according to what you have negotiated to expect, ask the photographer if you can leave/end the shoot and let him know you weren't expecting such and such.

- as part of the negotiation process in the emails be sure to get a timeline for delivery of photographs...if they aren't delivered in that timeline feel free to bug him about it.  Also if you feel your time is very valuable negotiate a non-delivery amount, a dollar amount that will cover your time should the photographer be unwilling or unable to deliver the photos.

Agreed.  This makes a lot more sense than trying to come up with some formal contract and asking him to sign it.

Scott Aitken wrote:
Normally, due to copyright laws, you can not edit the photos the photographer gives you (other than resizing them) without their permission.

TXPhotog wrote:
This argument has been made before, and I have yet to see a credible case made for it.  Photographer's pictures are edited all the time, and notwithstanding the unfortunate reading of "derivative work" by one of our members, there is nothing in copyright law that prohibits it.

This is an often repeated argument.  Clearly nothing in copyright law prohibits a model from editing an image.  Copyright law deals with reproduction, distribution and publication.  In many cases the model would probably be prohibitted from publishing the edited images without the consent of the copyright holder.  On the other hand, certain aspects of copyright law, such as parody, would suggest that some kinds of editing are protected and beyond the control of the copyright holder.

Copyright is really misunderstood by many.

TXPhotog wrote:

Willful destruction of what?  She has no obligation to maintain it, she can delete it or burn it at will.  She can also retouch it. 

The photographer retains his original, so nothing has been "destroyed".

Willful destruction includes copyrighted "copies" of original works if the copies would be considered copyright protected...

section 106a:

(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

It would have to be a "recognizable" artist, but no one can say that a judge would/wouldn't agree with an artist's recognizably or right to protect his/her own image if the modification to the image did serious damage to how it looked/how the artist was perceived.

James Jackson wrote:
section 106a:

You left out the first part of 106a, which is crucial:

Title 17 wrote:
(a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art —

(1) shall have the right —

Section 106a does not apply to the situation of a picture used by a model for self promotion.  Such a picture is not a "work of visual art", and therefore is not protected by 106a, which only applies to "works of visual art".  The stature of the photographer as an artist is not relevant.

Title 17 wrote:
A “work of visual art” is —

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include —

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title.23

TXPhotog wrote:
Section 106a does not apply to the situation of a picture used by a model for self promotion.  Such a picture is not a "work of visual art", and therefore is not protected by 106a, which only applies to "works of visual art".  The stature of the photographer as an artist is not relevant.

A “work of visual art” is —

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include —

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title.23

I was just about to paste that same thing...  I would think then that the argument could be made it *is* a work of visual art... if, and only if, it is a TFP and the original was an actual print signed by the photographer

-OR-

You could logically argue that a digital gallery is the same as a physical gallery and a single copy or short run copy "produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author"... I know, I know...that's not exactly how the law reads, *but* a lot of laws are being expanded to protect digital copies of copyrighted works as much as physical copies.  I see no reason why a single or short run set of images, signed by me and either numbered or made as a single copy, should not be as protected as a print that meets the same criteria.  If I sign the CD and number it or only ever make one...well...what is the difference between that and a print?

Of course, this would have to be argued in court, and it is open for interpretation, but it could be argued effectively I think...

I also think the sections you bolded in (A) (i) and (ii) are irrelevant because - the modification is to a photographic image -and- this is not a case of a "merchandising item or advertising, promotional, descriptive, covering, or packaging material or container"

James Jackson wrote:
Of course, this would have to be argued in court, and it is open for interpretation, but it could be argued effectively I think...

We have had this discussion before.  As you point out, anything at all, no matter how specious, can be argued in court.  But there comes a point when common sense and a rational reading of the law have to govern action.  Otherwise we are all paralyzed because anything at all could be claimed to be illegal.  "Somebody could argue in court" is not a very useful standard.

James Jackson wrote:
I also think the sections you bolded in (A) (i) and (ii) are irrelevant because - the modification is to a photographic image -and- this is not a case of a "merchandising item or advertising, promotional, descriptive, covering, or packaging material or container"

Sure it is.  I specified that the image was to be used for self promotion by the model.  That makes it a "merchandising" or "promotional" item.  Once again, I know if you try really hard you can find some way to argue against the clear intent of the law . . . . but again, a rational reading is required.

James Jackson wrote:
I would think then that the argument could be made it *is* a work of visual art... if, and only if, it is a TFP and the original was an actual print signed by the photographer

If the model retouched that physical print that was signed and numbered, yes.  But if she made a copy of it for self promotion on the web (as I specified, and assuming that using the picture on the web for self promotion was authorized by the photographer), modifications to that copy would not be covered by 106a.

TXPhotog wrote:
Try signing and numbering a copy of a piece of "art" that exists only in RAM and the video card memory of my computer.  Can't be done.  And there is no way the law is intended to apply to such electronic copies.

James Jackson wrote:
Of course, this would have to be argued in court, and it is open for interpretation, but it could be argued effectively I think...

We have had this discussion before.  As you point out, anything at all, no matter how specious, can be argued in court.  But there comes a point when common sense and a rational reading of the law have to govern action.  Otherwise we are all paralyzed because anything at all could be claimed to be illegal.  "Somebody could argue in court" is not a very useful standard.

James Jackson wrote:
I also think the sections you bolded in (A) (i) and (ii) are irrelevant because - the modification is to a photographic image -and- this is not a case of a "merchandising item or advertising, promotional, descriptive, covering, or packaging material or container"

Sure it is.  I specified that the image was to be used for self promotion by the model.  That makes it a "merchandising" or "promotional" item.  Once again, I know if you try really hard you can find some way to argue against the clear intent of the law . . . . but again, a rational reading is required.

Well hey, as usual I think we'll have to disagree...not that either of us is defacto wrong...just that I don't agree with your interpretation of the intent of the law.

Clearly a photograph of a model is not what they were trying to define in (A)(ii)... obviously by the context the section was talking about "merchandising item"s (like posters, catalogs, boxes, t-shirts, and flyers) and clarifying that as being an "advertising, promotional, descriptive, covering, or packaging material/container".

This is *my* rational reading of the law...I am not emotional or trying to get one up on you man...just saying I don't agree with your interpretation.

Nina Brown wrote:
Damn...her question was a good one...

I agree

Nina Brown wrote:
...only receives two out of the 25 rolls of film that were shot.  TFP is a reciprocal pay form and if a model puts time and effort for make-up, outfits and traveling...she should receive her images and sometimes it just doesn't happen.

Firstly: A TFP does not mean you get a copy of every image shot of you during what could be a very long photography session... A TFP doesn't mean you get a print of every photograph taken of you for all 25 rolls of film... A TFP in fact doesn't mean anything...it's not a real word...  It's all up to what the model and photographer negotiate to be the result of the shoot.


As to this part of the question...

Nina Brown wrote:
what happens when the model DOESNT receive images

See earlier...

James Jackson wrote:
ASK THE PHOTOGRAPHER!
...

- as part of the negotiation process in the emails be sure to get a timeline for delivery of photographs...if they aren't delivered in that timeline feel free to bug him about it.  Also if you feel your time is very valuable negotiate a non-delivery amount, a dollar amount that will cover your time should the photographer be unwilling or unable to deliver the photos.

Nina Brown wrote:
Damn...her question was a good one...most people responding are photogs thinking only of themselves, as in you're the ones NOT getting paid. However, what happens when the model DOESNT receive images or only receives two out of the 25 rolls of film that were shot.  TFP is a reciprocal pay form and if a model puts time and effort for make-up, outfits and traveling...she should receive her images and sometimes it just doesn't happen.  I know plenty of models this has happened to. Girl, i say you make your own...and not for money, but just so you can get some guaranteed pics...and if he lost the film...shoot again!

I understand your position and I am genuinely sorry all photographers don't keep their promises.  But a contract still makes no sense- if the photographer doesn't live up to the contract, what are you going to do?  What are your damages?  Gas money to get to the shoot?  You can't sue for that.

I am an outstanding photographer, and have had great success as a professional, and do keep my promises.  But if a model I'm interested in shooting portfolio work with, comes to me with a contract, I wouldn't shoot with him or her.  If we can't trust eachother with no money on the line, how can we come together to colaborate to create great images, much less work together as paying gigs come down the line?

Nina Brown wrote:
Damn...her question was a good one...

And the third post in this thread was the good answer.  She asked, she got an answer.  Later she got another good answer.  The information is there.

Heidi Brennan wrote:
That really has nothing to do with it. She's a first timer asking for advice. She wasn't asking for comments on her or her photos, she was asking a question about contracts. I don't think there's any reason to be harsh with someone over that, particularly if they're new. The way some people talk, they think that everyone should know everything right off the bat.

Well, firstly let's ask her if she was offended?

Second, let's hold her hand and ask her why...

Third, let's have her breath deep breaths and contemplate the meaning of life in a lotus pose...

Finally, let's see if she got any good advice while she was being offended and pissed upon by us uppity photographers who think everyone should know everything right off the bat...uh yep she did...so STFU!

Heidi Brennan wrote:
James Jackson wrote:
This isn't that type of business...if she can't handle a little harshness in the help she gets then she's going to have a real hard time of it when people tell her she's ugly or fat or any of the other numerous put downs models get.


Heidi Brennan wrote:
That really has nothing to do with it. She's a first timer asking for advice. She wasn't asking for comments on her or her photos, she was asking a question about contracts. I don't think there's any reason to be harsh with someone over that, particularly if they're new. The way some people talk, they think that everyone should know everything right off the bat.

Heidi, I think you misunderstood James. I think he was making the point that as a model she is going to be hearing a lot worse criticism than this post... i dont think he was actually critiquing her. but its true, you ask every top model and they will have many many stories of being told they were too tall, too short, too fat, too skinny, nose is too big, boobs are too small... you name it they have probably all heard it.... well maybe not adrianna lima...

James Jackson wrote:

Well, firstly let's ask her if she was offended?

Second, let's hold her hand and ask her why...

Third, let's have her breath deep breaths and contemplate the meaning of life in a lotus pose...

Finally, let's see if she got any good advice while she was being offended and pissed upon by us uppity photographers who think everyone should know everything right off the bat...uh yep she did...so STFU!

Well, someone's a little pissy this evening! I wasn't talking about anyone in particular, I was talking about what seems to be a general attitude on here. I read the different posts on here sometimes and am amazed at how rude some people are in their responses. A lot of people posted a lot of helpful things without having to use a sarcastic tone about it. Also, I'm not the only one who said to cut her some slack, so why you would tell me to "STFU" and be so immature is beyond me.