Photographer
CaliModels
Posts: 2721
Los Angeles, California, US
Star wrote:
On your mainpage:
"Next Event: July 15, 2006
No Models Fee
Model Prizes
Free Photos
These are photoshoots. Enhance your skills, update portfolios and promote yourself. Events are held at scenic locations in So California."
This is false and misleading advertisement stating phtographers may use the images for their portfolios. This is professional flaming. You select bits and pieces. Someone already posted an exact quote from the webpage that said events are non-released. There's also something that states to discuss releases with models and parent. That you conveniently left out.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
John Allan wrote:
Electronic portfolios (such as MM) are just a technological extension of the same hard portfolio. Courts have produced stacks of case law over the century, that folds into existing law/findings/etc where only the technology has evolved representing basically the same thing.
Would love to have an attorney contribute to the thread, but I don't need to chase one down to know that MM portfolios don't constitute commercial use. Now if my website was displaying non-released images and viewers had to register 1st using their credit card and pay a $25/mo fee - that's different.
John John, I don't want to get into an argument with you since there are many people who feel the same as you do. We can discuss it all day but we won't resolve it since we have two different opinions.
I will say this, I have show you two examples where others seem to disagree with you. Particularly, Dan Heller cautions against assuming that posting an image in your portfolio is always non-commercial use.
My question is can you cite any recognized authorities who say that posting in an online portfolio is NEVER a commercial use? That isn't meant to be argumentative. It is more curiosity. I'd like to see some writings on the other side of the issue. There are obviously others who hold your belief.
Photographer
Photografika
Posts: 73
Utica, Michigan, US
John Allan wrote:
I totally disagree. It absolutely does not constitute commercial use. It is self-promotion.
Talk to one of the major agencies. If promotional use was commercial use, they would certainly be after their cut for every non-released image in portfolios around the world.
John My understanding of the law is this: if you're a photographer that takes pictures with the intent to make money instead of doing it as a hobby, then self-promotional use IS considered commercial use by U.S. courts - you're trying to promote yourself as a business, right? And posting images online is considered publishing them, legally. That's why you still need a model release even if it's for TFP/TFCD.
Model
Isys Entertainment
Posts: 1420
Toronto, Ontario, Canada
SLE Photography wrote:
I can understand limiting commercial sale of the images, but self-promotion on websites???
Especially since the models get promoted that way & it's being promoted as a network & promtion event ON a website???
I need a beer. What kind are you drinking, I only like heineken 
And yes what is the point?
Have we come to a conclusion yet?
OP did these people remove the images as you demanded?
Just curious
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
CaliModels wrote:
Someone mentioned Editorial use...Can I assume as in newsworthy?
How many people on here are doing that? If newsworthly, then shouldn't someone be getting credit? Please show an example from this event. No you may not assume... editorial goes to illustrating the written word. It, the image, doesn't necessarily have to be "newsworthy" in itself, nor does the image necessarily have to have anything to do with the written article.
It IS something that I do as a photo-journalist. So I write an article called "The Great Model Shoot-out" which is published 6 months after the fact and use 4 images from the cluster f... errrr... shoot. Beeeeeep! I'm safe.
Studio36
Photographer
Emeritus
Posts: 22000
Las Vegas, Nevada, US
CaliModels wrote:
We pay for rental...If that wasn't clear. If you pay for rental, that means it's not free. Again, if any of you read the post, we pay for Non-Commercial Use, as Opposed to Commercial Use. I'd like to return to this, which seems to have gotten lost in the conversation. There is only one reading of it that I can think of which would make sense:
"The owner of the facility has not granted the event promoter a property release for the use of pictures of his buildings in commercial advertising. He has agreed to non-commercial use only."
That makes some sense, although in the case of many of the pictures the degree to which a building is included in the shot would be zero, or so small that no property release would be required. However, in the cases where the buildings play a prominent role in the shot, I can see that the property owner's rights could be at issue. (Please note: the property owner's rights. The event promoter has no right to assert those or to enforce them.)
However, if we go to the OP's event website we find lots of pictures of models at his events, including considerable coverage of the buildings. Now, that leads us to some interesting conclusions:
1. The OP has gotten releases from the models that he is displaying on his site, despite the fact that he discourages models from signing releases. Or . . .
2. The OP is displaying pictures of models to advertise his events, which is commercial use, and clearly violates the very rights that he is complaining about.
and . . .
3. The OP has gotten a property release from the owner for commercial use of the property, or
4. The OP is violating the terms of his agreement with the property by making commercial use of the images of the property.
Whatever the case may be, it seems at a minimum there is something less than full discosure by the OP going on, and perhaps just a touch of hypocrisy.
Photographer
R Michael Walker
Posts: 11987
Costa Mesa, California, US
CaliModels wrote:
The models at group events are mostly participating for Photos, Experience and/or Networking. If the models were to automatically give-up rights, that's simply unfair and it may change the rental rates. Good TFP where the photography pays, is supposed to hand out prints and can't use anything themselves. Bet you attract the "best of the best' photogrphers so those models get a great deal as far as the photos for thier portfolio go. Seems like the only winner here would be..let's see..YOU! Nice imges on your site too. Are they from photo days you held? If so. please remove them immediately! LOL. But then I bet the rules are different for YOU.
Mike
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
Alan from Aavian Prod wrote:
My question is can you cite any recognized authorities who say that posting in an online portfolio is NEVER a commercial use? That isn't meant to be argumentative. It is more curiosity. I'd like to see some writings on the other side of the issue. There are obviously others who hold your belief. Have to hunt up the cite, but, yes, that was the heart of the case of the old Jewish guy in the NY case just 6 months ago. His image was being sold in galleries and included in a book [but not on the cover]. NY has law dealing with commercial exploitation of images - "in the course of trade". Court held that the uses complained of were NOT commercial uses within the meaning of that NY statue.
That case went further than most in defining, and narrowing, the concept of commercial use.
Here's a NYT article:
LINK
Studio36
Photographer
J O H N A L L A N
Posts: 12221
Los Angeles, California, US
Alan from Aavian Prod wrote:
John, I don't want to get into an argument with you since there are many people who feel the same as you do. We can discuss it all day but we won't resolve it since we have two different opinions.
I will say this, I have show you two examples where others seem to disagree with you. Particularly, Dan Heller cautions against assuming that posting an image in your portfolio is always non-commercial use.
My question is can you cite any recognized authorities who say that posting in an online portfolio is NEVER a commercial use? That isn't meant to be argumentative. It is more curiosity. I'd like to see some writings on the other side of the issue. There are obviously others who hold your belief. Oh, I would never say "never"....
...and I could argue your photography chain example clearly (if not commercial use), certainly violates customer trust and probably a few laws.
I'd also stipulate that most street-level fashion/editorial/beauty photographers that have unreleased images in their book are operating and their usage reinforced under a test agreement and unlike way to large a percentage of the online community, there's a concensus of what test means.
Don't want to argue either - any legal issue can be argued using all types whatifs...
John
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
TXPhotog wrote:
"The owner of the facility has not granted the event promoter a property release for the use of pictures of his buildings in commercial advertising. He has agreed to non-commercial use only."
That makes some sense, although in the case of many of the pictures the degree to which a building is included in the shot would be zero, or so small that no property release would be required. You and I are on the same wavelength here. Property releases are a different animal than model releases. Model releases deal with privacy rights and the right to publicity. Property releases deal with copyrighted architecture and artifacts as well as some limitations on the right to commercially exploit the property of others.
But as an example, if you have a building whose architecture is copyrighted, if it is visible from publicly accessibly areas, such as the street, people can take pictures of it all day long without a release. If a picture taken from a private are records only a small portion so as not to diminish the commercial value of the copyright, then it will often not require a release as well.
The only one who can assert the copyright and need for the release is the property owner. There are only very limited situations where a release would actually be required.
Photographer
Worlds Of Water
Posts: 37732
Rancho Cucamonga, California, US
I'm not going to touch this with a ten foot pole. All I can say is, if you attend an SM event, you WONT run into a 'Gustapo Queen' promotor who dictates to you what you can and cannot do with your images. Just 'cover your butt'... plain and simple... and you KNOW what that entales. Oh... and for the record... models attending our future events (as some in the past) will be REQUIRED to sign the signup sheet that states: 'Images captured at this event may be used by both photographers and models on Model Mayhem'. Classic example... see the avatar?... it's Peggy Vee... shot at an SM event... and she's using it on HER Model Mayhem page too... a model I 'highly recommend'... 
Photographer
Scott Aitken
Posts: 3587
Seattle, Washington, US
It seems like you are trying to set up an event wherein photographers shoot photos of model, and then the models can use the photos for self promotion, and the photographers can use the photos for "personal use" only. That may be a laudable goal, but you are going about it all wrong.
Unfortunately, you appear to have very little understanding of the law regarding copyright and then legal ramifications of a model release.
With a few exceptions (such as work for hire), all photographers have sole and exclusive copyright to all images he/she takes from the moment the shutter button is clicked. Nobody, including the client or models, can use any copyrighted image without the photographer's permission. As the event organizer, you can not grant models the use of the images, because you don't own or control the copyright, and therefore have no say in the matter. The fact that you are sponsoring the event, and that it is held on private property does not effect copyright law one bit. If you wanted models (or yourself) to be able to use the images, you would have to have each photographer sign some sort of contract, granting you and/or the models permission to use their photos for specific purposes (such as self promotion or whatever). You should get a knowledgeable attorney to draft such a contract, or you'll just make it worse.
If the models don't sign any sort of model release, then the photographers can't use the photos for "commercial use". But it seems clear that you don't understand the term commercial use very well. And photographers could certainly use the images for any non-commercial use they wanted to, including posting the images in their own web portfolios or on MM. The fact that your event is held on private property does not change this one bit. A model release is a contract between a model and a photographer, and you as the event organizer are not a party to that contract. If you wanted to restrict a photographer from posting the photos on their own website, or other websites such as MM, (or editorial use or any other non-commercial use), then again, you would have to have each photographer sign a contract before hanbd wherein they would specifically agree not to use the images in the ways you want to restrict them. Again, I'd recommend you get a good attorney to draft such a contract, or you'll muck it up. In the absence of such an agreement, all photographers are completely free to use their images for any and all non-commercial use, whether you or the models like it or not.
If any of this upsets you, then you should educate yourself about copyright and the need for model releases. And then you should do a better job giving accurate information to your models. This is not about whether photographers care about models. It is about clearly understanding the law. The photographers you are complaining about are following the law. What you are asking them to do has no basis in the law. You can either try to change the law to suit your purposes, or change the way you are running your events so that they comply with current law.
It seems to me that you could run your events in a way that you seem to want to, but you'd have to draft some contracts and get all participating photographers to sign them in order to accomplish that. Some photographers may be unwilling to sign such contracts (I certainly wouldn't), but newer photographers who just want to practice and learn might be fine with it.
Until such time, your thread here is just so much pissing in the wind. And your claims to your models that they can use the photos for self promotion, and your demands for photographers to remove their photo are flat wrong. If your models are mad, you have only yourself to blame.
Photographer
J O H N A L L A N
Posts: 12221
Los Angeles, California, US
Starview Studio wrote:
My understanding of the law is this: if you're a photographer that takes pictures with the intent to make money instead of doing it as a hobby, then self-promotional use IS considered commercial use by U.S. courts - you're trying to promote yourself as a business, right? And posting images online is considered publishing them, legally. That's why you still need a model release even if it's for TFP/TFCD. Wrong... although you finished it with if it's for TFP/TFCD. which as practiced, as far as I can tell, should probably be entitled TFR (trade for release).
John
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
studio36uk wrote:
Have to hunt up the cite, but, yes, that was the heart of the case of the old Jewish guy in the NY case just 6 months ago. His image was being sold in galleries and included in a book [but not on the cover]. NY has law dealing with commercial exploitation of images - "in the course of trade". Court held that the uses complained of were NOT commercial uses within the meaning of that NY statue.
That case went further than most in defining, and narrowing, the concept of commercial use.
Studio36 I am familiar with that case, but it actually reinforces my point. The book was found to be editorial use. In New York, the courts have also found that it is not commercial use of an image to advertise an otherwise constitutionally protected work of art (such as a gallery showing).
What is different though is using an image to get people to hire you as a photographer. In that case you are endorsing a non-editorial product.
That being said, New York law seems to be substantially different than other parts of the country. But that is to be expected. Model releases and the right to privacy/publicity are issues that are dealt with largely on the state level, not the federal level. The laws vary, state by state.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Select Models wrote:
I'm not going to touch this with a ten foot pole. All I can say is, if you attend an SM event, you WONT run into a 'Gustapo Queen' promotor who dictates to you what you can and cannot do with your images. Just 'cover your butt'... plain and simple... and you KNOW what that entales. Oh... and for the record... models attending our future events (as some in the past) will be REQUIRED to sign the signup sheet that states: 'Images captured at this event may be used by both photographers and models on Model Mayhem'.
Classic example... see the avatar?... it's Peggy Vee... shot at an SM event... and she's using it on HER Model Mayhem page too... a model I 'highly recommend'... Oh my gosh, Gary and I agree on something. The rules simply need to be spelled out clearly and then everyone can decide to attend or not. This thread is really about nothing more than ambiguity.
Photographer
Christopher Hartman
Posts: 54196
Buena Park, California, US
studio36uk wrote:
You're missing the point here... he is CHARGING THE PHOTOGRAPHERS to shoot the models. Effectively is is a paid shoot with the cost shared between the photographers. And he expects the same photographers to come away without ANY right to use the images?
I want some of what he's been smoking.
Studio36
EDIT: On second thought maybe not, it must be some bad shit. Studio, I understand that. I was talking about the scenario outlined in the lawsuit that Alan decribed. How a chain photo studio at the mall used one of their paying client's photos to advertise themselves. I think this is wrong to do without permission/compensation.
On the setup for Calimodels, if I'm going to pay someone to get access to an event that is geared towards photographers taking pictures, I EXPECT to be able to use the photos however I please as long as it isn't for direct monetary gain. Such as selling those photos or having them part of a paid website, etc.
I've been to a group shoot before. I did it because it was an easy way to work with many models in a single day to get me some experience. I posted one of those photos in this thread. And sure enough, one of these punk organizers tried demanding that I remove that photo from my MM portfolio because it was a non-release event. I explained to him that this issue is between me and the model and that I would be more than happy for him to contact her. She has a great memory and recognized me at other events (thinks like Glamourcon) and always said she'd like to shoot with me. We finally got together and took some quick headshots which is all she needed at the time. All this without a release. 
Photographer
J O H N A L L A N
Posts: 12221
Los Angeles, California, US
To the OP...
Print out Scott Aitken's response and tape it to your wall.
John
Photographer
Scott Aitken
Posts: 3587
Seattle, Washington, US
Starview Studio wrote:
My understanding of the law is this: if you're a photographer that takes pictures with the intent to make money instead of doing it as a hobby, then self-promotional use IS considered commercial use by U.S. courts - you're trying to promote yourself as a business, right? And posting images online is considered publishing them, legally. That's why you still need a model release even if it's for TFP/TFCD. No, that's not right. "Intent" to make money is not a basis to determine commercial use. Think of freelance photojournalists. The photos they shoot are taken with the intent to make money. Newspapers and magazines (and news websites) PAY them for their photos. But the use is still editorial. Conversely, I might decide to donate the use of one of my photos to my brother to use for an advertisement for his company. That would still be commercial use, even though he did not pay me, and I wouldn't make any money off of it (and thus it would require a model release if there was a recognizable person in the photo).
Whether or not a photographer makes any money (or intends to make any money) is not a determining factor for categorizing commercial use.
Photographer
SLE Photography
Posts: 68937
Orlando, Florida, US
Alan from Aavian Prod wrote:
I understand that a lot of photographers feel that self-promoton isn't commercial use of photos. In many cases it is not. But there have been a number of attorneys who have posted on these forums and there are experts like Dan Heller who caution that it isn't always the case. I know these photographers are sincere in their belief. To that I respond, "read what the experts say and then feel free to disagree."
My advice to photographers is if you are in the business of photography and you want to use an image of a model to promote your business, get a release. It is that simple. If you have a release, there are no questions.
I personally don't see the point of walking the thin line. You may well use fifty images of models in your portfolio and not have a problem. All it takes is one model to get offended and take you to court to ruin your day. It is always a crap shoot when you go before a judge. There is no guarantee that they will agree with your position. Whether they do or not, you can avoid the risk by getting a release. I always do when I book a model. That's one of many reasons I ALWAYS get a release
Photographer
Worlds Of Water
Posts: 37732
Rancho Cucamonga, California, US
Alan from Aavian Prod wrote:
Oh my gosh, Gary and I agree on something. The rules simply need to be spelled out clearly and then everyone can decide to attend or not. This thread is really about nothing more than ambiguity. Right on Alan... U rock! Come on out to a future shoot dude... I think I owe you a hotdog...
Model
Isys Entertainment
Posts: 1420
Toronto, Ontario, Canada
What does commercial use mean?
Commercial use of an image means an image is used to endorse or imply endorsement of a product or service. This includes but is not limited to use of an image on a company's website, advertising and product packaging.
Any images of recognizable people or property which is identified with a person or business may not be used for commercial use unless you have obtained written permission from the depicted person or property owner.
What is a model released or property released image?
A model or property released image is one which depicts a recognizable person or property that is associated with a person or a business (such as a hydroplane race boat, a show car or even a trademarked building). Such images may be used for personal, editorial or educational use without a release.
Such images may only be used for commercial use when the depicted person or property owner has approved of such use in writing.
Now how much of that is true? All of it?
Photographer
Rp-photo
Posts: 42711
Houston, Texas, US
Scott Aitken wrote:
It seems like you are trying to set up an event wherein photographers shoot photos of model, and then the models can use the photos for self promotion, and the photographers can use the photos for "personal use" only. That may be a laudable goal, but you are going about it all wrong. This reminds of the "ladies' night" promotions where women get in free but men have to pay. I wonder if the OP's events are meant to be "meat markets"?
Photographer
SLE Photography
Posts: 68937
Orlando, Florida, US
SLE Photography wrote:
I can understand limiting commercial sale of the images, but self-promotion on websites???
Especially since the models get promoted that way & it's being promoted as a network & promtion event ON a website???
I need a beer. Isys Entertainment wrote:
What kind are you drinking, I only like heineken
And yes what is the point?
Have we come to a conclusion yet?
OP did these people remove the images as you demanded?
Just curious My favorite Utah microbrew
![https://www.wasatchbeers.com/images/merch_more_sign_poly.jpg]()
(yes, it's real beer)
Photographer
Star
Posts: 17966
Los Angeles, California, US
CaliModels wrote:
This is professional flaming. You select bits and pieces. Someone already posted an exact quote from the webpage that said events are non-released. There's also something that states to discuss releases with models and parent. That you conveniently left out. That is EVERYTHING on the mainpage of your homepage
"Photodays
Next Event: July 15, 2006
No Models Fee
Model Prizes
Free Photos
These are photoshoots. Enhance your skills, update portfolios and promote yourself. Events are held at scenic locations in So California.
Email
About | Schedule | Next Event | Photo Gallery
Copyright © 2006 ModelnShoot. All Rights Reserved.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Isys Entertainment wrote:
A model or property released image is one which depicts a recognizable person or property that is associated with a person or a business (such as a hydroplane race boat, a show car or even a trademarked building). Such images may be used for personal, editorial or educational use without a release. Oops, property releases don't have to do with recognizability as does a model release. Property releases primarily deal with the copyright for the architecture or the artifact. Indeed, if the copyrighted building is visibile from a publicly accessible area, such as a street, you can still shoot it without a release.
Your point is well taken though.
Photographer
ActionShots Photo
Posts: 182
Barboursville, West Virginia, US
Since when has a photographers portfolio (online or otherwise) been 'commercial use' that would even require a release?
I personally have an agreement that would typically cover this that I use EVERYDAY stating that neither of us (model or photographer) may sell or trade images from the session without an additional contract specifing price and use. Personal use in portfolios or for self-promotion is not now and has never been 'commercial use'.
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
DigitalCMH wrote:
Studio, I understand that. I was talking about the scenario outlined in the lawsuit that Alan decribed. How a chain photo studio at the mall used one of their paying client's photos to advertise themselves. I think this is wrong to do without permission/compensation. Actually I agree with you on that for a simple reason - it is so written into British copyright law as a privacy provision - BUT - it only applies when the work is done for "private and domestic" purposes. A sponsored event open to the paying public, or just open to the public, wouldn't qualify. A commission for the purpose of publication also wouldn't qualify. Throughout, it is only a use restriction anyway, the photographer retains the copyright in every case in the UK unless they are an employee where the copyright belongs to the employer.
DigitalCMH wrote:
On the setup for Calimodels, if I'm going to pay someone to get access to an event that is geared towards photographers taking pictures, I EXPECT to be able to use the photos however I please as long as it isn't for direct monetary gain. Such as selling those photos or having them part of a paid website, etc. My point exactly. I also would suggest that monetary gain still does not rise to the level of "commercial use" - you COULD sell prints or charge for access to your website - you could also publish in other ways for no monetary gain. In the instant case you are actually paying for the shots not the other way around, as in Alan's example, where someone is paying you.
Studio36
Photographer
Sophistocles
Posts: 21320
Seattle, Washington, US
rp_photo wrote:
This reminds of the "ladies' night" promotions where women get in free but men have to pay. I wonder if the OP's events are meant to be "meat markets"? Funny thing about that, it's illegal in my state (Washington).
RCW 49.60.215 if anyone wants the cite
Photographer
Emeritus
Posts: 22000
Las Vegas, Nevada, US
Isys Entertainment wrote:
Now how much of that is true? All of it? There's probably a fine point or two that could be quibbled, but yes, it's all true.
Photographer
J O H N A L L A N
Posts: 12221
Los Angeles, California, US
Alan from Aavian Prod wrote:
http://www.danheller.com/model-release.html
Dan obviously disagrees with you. He, of course, is a well respected expert and author. Read briefly.... one thing he does elude to however is the vagueness and ambiguity of "website" use. I would not argue that "website use" is sufficiently clear to govern image use.
John
Photographer
ActionShots Photo
Posts: 182
Barboursville, West Virginia, US
and in a case such as the one that began this thread...
In his section 5.5 Mr Heller refers to the fact that any release signed but without compensation is incomplete anyhow....
Model
Isys Entertainment
Posts: 1420
Toronto, Ontario, Canada
CaliModels wrote:
*Events are Non-Released*
ANY Photographers on this site or others that have Non-Released Photos should IMMEDIATELY REMOVE PHOTOS. Now my last and final question to the OP is did you have a contract that stated this before the event in question took place? Do you have documentation signed by all parties that dictated these terms and conditions?
Surely you had a contract with these photographers that attend the event?
I assume this is not a press release after the fact?
Sorry, your post is ultra ambiguous and I find the complexity strange? As it seems there should be no apparent reason for this discombobulation.
Again what is the point of the event, why does it work from a marketing standpoint, if one canât promote themselves? Politics aside.
Are you mad because someone made money from these images?
Can you give me the lay~man's version of what the hell you are trying to accomplish...please what are you REALLY saying...
Just curious
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
Examples of commercial and editorial usage: Commercial use ON MY OWN WEBSITE ![https://www.studio36.pwp.blueyonder.co.uk/Andee2.jpg]() Editorial use ON MY OWN WEBSITE ![https://www.studio36.pwp.blueyonder.co.uk/Andee.jpg]() Learn photography at Studio36 Notice that in the editorial use there is no DIRECT linkage between the image and the solicitation. It does not put words in the model's mouth. The image and the girl in the image are not purporting to endorse my product in the editorial version, though the same image appears in both uses... as well as nearly the same text. And, yes, the distinction between the two uses can be cut that finely. Studio36
Photographer
Emeritus
Posts: 22000
Las Vegas, Nevada, US
ActionShots Photo wrote:
In his section 5.5 Mr Heller refers to the fact that any release signed but without compensation is incomplete anyhow.... He does say that, but he's wrong (with due respect to Mr. Heller, with whom I agree on most points.)
Releases can be structured as contracts in which each of the parties receives something of value. In fact, many releases are written that way. But many are not, and they are also valid.
The only thing required of a release is that it be a grant to someone else of some portion of the model's rights to control of her image. There is no legal requirement that it be part of a contract, or that the model be compensated for it.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
ActionShots Photo wrote:
In his section 5.5 Mr Heller refers to the fact that any release signed but without compensation is incomplete anyhow.... TXPhotog wrote:
He does say that, but he's wrong (with due respect to Mr. Heller, with whom I agree on most points.)
Releases can be structured as contracts in which each of the parties receives something of value. In fact, many releases are written that way. But many are not, and they are also valid.
The only thing required of a release is that it be a grant to someone else of some portion of the model's rights to control of her image. There is no legal requirement that it be part of a contract, or that the model be compensated for it. Actually, you are both right. If there is no consideration, there can be no contract. That means you can't be compelled to do something if you don't receive something in return.
On the other hand, just because there is no consideration, that doesn't make the release invalid. A release is simply a form of consent. As an example, you can sent a permission slip to school for your child allowing them to go on a field trip. If a model grants permission to use her photos, that is valid with or without payment.
The difference though is that if there is no compensation, in many states, the consent would be revocable. That would mean a model could change her mind later. If she was paid, she could not.
Of course, she can't change her mind retroactively, but if she gave you permisison to use her images without payment, she could stop future use. As an example, if you shot her and she signed a release, then you planned a book, she can change her mind before publication.
You have to remember though, consideration need not be money. It could be pictures or a couple of new dresses. Consideration makes it a contract, but it is valid either way.
Photographer
studio36uk
Posts: 22898
Tavai, Sigave, Wallis and Futuna
TXPhotog wrote:
He does say that, but he's wrong (with due respect to Mr. Heller, with whom I agree on most points.) Because he is writing for the WWW and not for an audience in a particular state based on that individual state's law. For what he writes, and the audience he writes for, there must be generalities built in... as well as the issue of not appearing to be giving legal advice.
Studio36
Photographer
Emeritus
Posts: 22000
Las Vegas, Nevada, US
Alan from Aavian Prod wrote:
The difference though is that if there is no compensation, in many states, the consent would be revocable. That would mean a model could change her mind later. If she was paid, she could not. I've seen this argument made, and there certainly are situations in which it is valid. However, the model can also give (and state she is giving) irrevocable permission for a use. If she does so, the photographer takes action (like sending a book to press) which relies on it, and she tries to revoke it, he has a cause of action against her.
Photographer
American Glamour
Posts: 38813
Detroit, Michigan, US
Alan from Aavian Prod wrote:
The difference though is that if there is no compensation, in many states, the consent would be revocable. That would mean a model could change her mind later. If she was paid, she could not. TXPhotog wrote:
I've seen this argument made, and there certainly are situations in which it is valid. However, the model can also give (and state she is giving) irrevocable permission for a use. If she does so, the photographer takes action (like sending a book to press) which relies on it, and she tries to revoke it, he has a cause of action against her. I think the issue is whether you will suffer an injury by her revocation. I don't think she can unring the bell. It is not an issue of you having a cause of action against her, it is whether she has a cause of action against you.
Let's take this scenario. You take her photos and don't pay her. You ask her permission to use the pictures in a book. She says, OK. You start to edit the book and she sends you a letter and says she changed her mind. Now we get into the meat of the issue.
If you pull her pictures from the book before you send them to the publisher, you have no cause of action against her. Even if you claim an injury. The reason is you were not compelled to remove the images. If you felt the consent was valid, you should have simply published them anyhow.
On the other hand, let's say that you ignore her recission and send the book to the publisher anyhow. She might choose to file an action against you. If you didn't pay her, you can't force her to consent.
What a court will have to decide was whether you would have been injured by her recission. You clearly had relied upon it.
I am not going to speculate what a court would or would not do. That is the danger of not having consideration, it isn't a contract, it is a gift.
If the situation were that you hadn't even started editing the book, I think there would be no question, she could change her mind since there would be no reliance and no damages on your part. It really depends on how far along you are and if you can convince a judge that you were injured by her change of heart.
That is where consideration is important.
Photographer
Emeritus
Posts: 22000
Las Vegas, Nevada, US
Alan from Aavian Prod wrote:
If the situation were that you hadn't even started editing the book, I think there would be no question, she could change her mind since there would be no reliance and no damages on your part. It really depends on how far along you are and if you can convince a judge that you were injured by her change of heart. That's why I said, "sent to press". Not "sent to a publisher".
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