TheArchon wrote:
I joined this site, because I was led to believe that here, a model could post a profile with a portfolio, and have the possibility of finding work.
TFP...TFCD...Great to build a portfolio, and as it happens; something I will accept, because it is something I need.  Once that is obtained, is there ANY chance I will find gainful ($) work as a model if all I accept after that is the green stuff?  I'm beginning to think that I will not.

I am freelance.  I prefer to be paid.  What for?  My time? No.  Not for my time.  I prefer to be paid to allow images of me to be posted, photoshopped, sold, bought, used, and re-used any way that the paying photographer see fit.  Many photographers I've looked at here, seem to think that they are doing models a supreme colossal mega favor by shooting them, and that they are above paying their models $ for service rendered.  Yes, it is a privelege to work with good photographers.
But what makes a good photographer is being able to sell their art, after paying their model the fee to BE ALLOWED to sell the images.  TFP is a good idea, but it won't pay my rent.

If I put "will only accept monetary compensation" on my profile, how many of you photographers would make it past that, and even bother to have a look at the pics I've posted?  I'm willing to bet that not many of you would.

This is all well and good, but your portfolio is pretty bad.  You NEED to be doing TFP right now.

bang bang photo wrote:
Hi Ty,

I'm more or less in agreement with what you say here.

My only quibble -- right to publicity law is state law, and some states are more aggressive about it than others. So what you have to say may be very true in New York or New Jersey, for example, but the landscape might be a bit different in one of the other states with stricter right-to-publicity laws.

Regards,
Paul

You are correct Paul.
With the exception of possibly California (toughest right to publicity laws on the books) Most are very similar to those in NY.
But Right to Publicity only deals with commercial speech. The courts so far seem to agree on that point. and Cali's law has not been tested yet to my knowledge.

for those interested....
Freedom Of Speech (expression) as expressed in the First Amendment of the constitution, basically says that you have a right to say whatever you want.
The Courts have ruled that this is not entirely true anymore.
They have since developed Categories of Speech which are not considered Free Speech.
this is why you can not yell "Fire" in a crowded theater or call in a bomb threat and be protected by the First Amendment. Also, things like Porn are not considered "Free Speech" by the courts. (although it is close)

The courts have instituted Commercial Speech as a category as well.
They did this for several reasons, Major amoungst them, the ability to restrict a company from False Advertising.
Only recently has the Right to Publicity / Privacy come head to head with Free Speech.
In every case thus far, Free Speech has beat RoP.
However, Commercial Speech has lost to RoP  in every instance thus far.
It is this seperation of type of speech that everyone here must be aware of.
The major mistake people make is in associating Commercial Speech with Commercial.
Selling a book is commercial, but the book is Free Speech.
An advertisement is Commercial Speech even though the image within it is Free Speech.

What this means is that, according to the courts thus far, a picture being sold is commercial, but free speech, and therefore trumps RoP.
A Picture in an Ad (endorsing another product or service other than the picture itself), is part of Commercial Speech and RoP trumps commercial speech.

So, you need a release to use an image in an Ad but not in a book you are selling.

Again, California law is a bit stricter, and has yet to be challenged.

Ty Simone wrote:

You are correct Paul.
With the exception of possibly California (toughest right to publicity laws on the books) Most are very similar to those in NY.
But Right to Publicity only deals with commercial speech. The courts so far seem to agree on that point. and Cali's law has not been tested yet to my knowledge.

for those interested....
Freedom Of Speech (expression) as expressed in the First Amendment of the constitution, basically says that you have a right to say whatever you want.
The Courts have ruled that this is not entirely true anymore.
They have since developed Categories of Speech which are not considered Free Speech.
this is why you can not yell "Fire" in a crowded theater or call in a bomb threat and be protected by the First Amendment. Also, things like Porn are not considered "Free Speech" by the courts. (although it is close)

The courts have instituted Commercial Speech as a category as well.
They did this for several reasons, Major amoungst them, the ability to restrict a company from False Advertising.
Only recently has the Right to Publicity / Privacy come head to head with Free Speech.
In every case thus far, Free Speech has beat RoP.
However, Commercial Speech has lost to RoP  in every instance thus far.
It is this seperation of type of speech that everyone here must be aware of.
The major mistake people make is in associating Commercial Speech with Commercial.
Selling a book is commercial, but the book is Free Speech.
An advertisement is Commercial Speech even though the image within it is Free Speech.

What this means is that, according to the courts thus far, a picture being sold is commercial, but free speech, and therefore trumps RoP.
A Picture in an Ad is part of Commercial Speech and RoP trumps commercial speech.

So, you need a release to use an image in an Ad, but not in a book you are selling.

Again, California law is a bit stricter, and has yet to be challenged.

bang bang photo wrote:
There is a great NY Times story on the increasing conflict between intellectual property rights and first amendment speech rights. It illustrates the complexity of law in this area. To me, it illustrates why the often-given advice to just "consult a lawyer" isn't always going to be terribly helpful. This collision between two streams of law is creating a rapidly-changing legal landscape, and even with the best advice from a lawyer who is up-to-date on recent events cannot keep you from getting caught in the middle sometimes.

http://www.nytimes.com/2006/11/12/us/12 … ref=slogin

Great article there for everyone to read.
the difference between that and this discussion though is not a RoP issue, but a trademark issue.
Sports Trademarks are highly protected. Take the NFLPA and team logos.
this case will be interesting to follow because it again shows the clash between the free speech of artists, and Intellectual property rights.
I think that the artist will win on the artwork, but lose on the other merchandise.

Iona Lynn wrote:
How to get paid

Diversification in networking: Don't only rely only on MM there is OMP, Craig's list, Fineartguild.com, local networking parties and events, yahoo groups, myspace, tribe, workshops, night clubs, and other avenues to get your name out in several markets not just one. Remember networking is key, a lot of artists and photographer share names of models they have worked with. Do one workshop with 5 photographers and that is  5 potential photographers who may have a job for you in the future don’t forget the photographer who is teaching the class as well. And better yet each of  those photographers may know someone else who is looking for a person to play a bit part in the new movie they are having trouble casting.

Diversification in jobs: What genre do you want to work in? The real question is how many genre’s CAN you work in? Art & figure modeling, runway, glamour fetish, commercial, now think outside of the box, there are many artists who need models not jus photographers, sculptors need models, as do painters, and art teachers and art students, Some artists need models for body castings. Not all art is pretty and glamorous. I played a dead girl in a bath tub once. Some models also work with promotions passing out samples and information, or wearing new outfits by local designers to clubs, movie bits, and the good old fun job of go-go dancing.

Contacts: make your self easy to find, every photographer and artist has a different venue they go to find models some you meet on the street, some you meet in galleries some you meet at book signings. Always have your business card or comp card at all times I recommend a web site with email. Easy to say, easy to spell, easy to remember. Have your cell number usable at all times or get a modeling cell only if you are worried about privacy. If a photographer thinks of you for a project you need to make sure he/she can FIND YOU and contact you in 2 minutes or less. I know a lot of photographers who lament about the model they though of and don’t have any info on. They can’t recall the OMP number or the last name…


Replies: Now you have photographers and artists contacting you. Reply back to them even if you do not want to work with that job. A simple no thank you I’m booked that day or I do not think that job is right for me but please keep me in mind for other jobs you may have in the future. Will do just that, it will keep you out of the little black books everyone professes to have. After each job send a little thank you email letting them know you appreciate the fact that they hired you and picked you for the job. This goes for studio managers as well as photographers. Sometimes just a “it was great to meet you” is all that is needed to get you on a mental list of models to work with.


Payment: Oh right you are doing all of this to get paid. Payment comes in many ways her is a fun little list I have been keeping up to date in all the crazy ways I have been paid for my work.
Cash
Prints
Room
Board
Plane tickets
Movie tickets
Sushi
Hair cuts, color, styles,
Ramen
Fresh lemons
Fresh catnip
Wine
Clothing
Free night club entrance
Free drinks
Books
CD’s
Free trips vacations
Spankings (That was special don’t get any ideas)
Tattoos
Rum Soaked Truffles
All the hot wings I can eat
All the wonderful beautiful new places I have traveled to and seen.
All the wonderful beautiful people I have met and learned from.
The chance to be immortalized in art

Vito wrote:

A photographer WITHOUT a release can also have a gallery showing AND sell the images. He can also use the images in a booklet advertising the gallery showing.

WRONG!

If the person in the photograph is recognizable and the image is used for any commercial benefit (except for a newsworthy story) then the person's privacy has been violated.

Copyright laws and privacy laws are different.  A persons creative work (photograph) is protected under copyright, while a person's likeness is protected under privacy laws.

TheArchon wrote:

Disagreeing with my point of view is one thing.  You are entitled to that.  Insulting me simply due to a portfolio that is as yet being fully put together is another.
If you are so great, then that kind of self-righteous crap should be beneath you, but you have clearly demonstrated your own shortcomings as a human being.  Best of luck to you, you apparently need to feel good about yourself by putting others down.

I think he was trying to tell you that, if you want to make money at this, you probably should have a good "working" portfolio. I've seen your portfolio here on MM and it's snapshots. Great to take to an agency to see if they would be willing to represent you. If so, that's the point they will send you to a photographer to get a good starter portfolio so they can pimp you out for work. You will more than likely have to pay.

I think that people are missing the point of ModelMayhem. This is a site for people in the industry to 'network'. No one promised work and TFP is strictly between the photographers, models and who all else is involved. In no way is it expected or an obligation. However, if you need photos and no one wants to TFP with you, it's not a bad idea to pay for a portfolio. Hell, that's the way it was done back in the day.

Sure photographers think that they don't have to pay models. And models think they don't have to pay photographers. But, unless you are extremely lucky, at some point, you're gonna have to pay for something. Think of it as an investment: you get what you pay for...... but if you are expecting a photographer to pay you to build YOUR portfolio AND give you prints, it doesn't work that way.

End of lecture.

Michael Newbern wrote:
WRONG!

If the person in the photograph is recognizable and the image is used for any commercial benefit (except for a newsworthy story) then the person's privacy has been violated.

Copyright laws and privacy laws are different.  A persons creative work (photograph) is protected under copyright, while a person's likeness is protected under privacy laws.

Ty Simone wrote:

Great article there for everyone to read.
the difference between that and this discussion though is not a RoP issue, but a trademark issue.
Sports Trademarks are highly protected. Take the NFLPA and team logos.
this case will be interesting to follow because it again shows the clash between the free speech of artists, and Intellectual property rights.
I think that the artist will win on the artwork, but lose on the other merchandise.

TheArchon wrote:

Oh, and one other thing, Marky boy:  You haven't seen my complete portfolio.
Just because this may be YOUR only network site, do not make the mistake of thinking that this is mine.

I haven't looked at your portfolio so my comment is only based on the above logic. According to your comment you basically chose MM to upload your worst images? I'm not sure how that warrants complaints about the site if you're not putting your best foot forward. But since you bring up the argument of internet vs. "real world" and obtaining paid work...in the real world, photographers do not pay models. In the real world models hire the best photographer they can afford to produce the best portfolio possible. The client pays the model. The client pays the photographer. Outside of internet modeling, I have never seen a model walk into a studio and expect to be paid. If you don't think this is true try calling up some photographers in your area and ask if they will do tfp. When they say "no" ask if they would be willing to pay you to shoot. When they stop laughing and hang up, call the next on your list.

The beauty of the internet modeling relationship is that models and photographers can create a relationship that benefits both often without money being exchanged.

Michael Newbern wrote:

WRONG!

If the person in the photograph is recognizable and the image is used for any commercial benefit (except for a newsworthy story) then the person's privacy has been violated.

Copyright laws and privacy laws are different.  A persons creative work (photograph) is protected under copyright, while a person's likeness is protected under privacy laws.

You're wrong. Read page 2 of this thread and/or look it up. I will call your attention to one such case, the Hasidim Jewish man in NYC.

Michael Newbern wrote:

WRONG!

If the person in the photograph is recognizable and the image is used for any commercial benefit (except for a newsworthy story) then the person's privacy has been violated.

Copyright laws and privacy laws are different.  A persons creative work (photograph) is protected under copyright, while a person's likeness is protected under privacy laws.

You are misinterpretting the term Commercial.
Read my earlier posts.

If you need a case the Tiger Woods one perfectly reflects why your assessment is wrong.

In that case, not only is Tiger recognizable, but the piece is in the brochure used to sell it.

Excerpts from the Appellate Court ruling:

D.   Right of Publicity Claim

     ETW claims that Jireh's publication and marketing of prints of Rush's painting violates Woods's right of publicity. The right of publicity is an intellectual property right of recent origin which has been defined as the inherent right of every human being to control the commercial use of his or her identity. See McCarthy on Publicity and Privacy, §1:3. The right of publicity is a creature of state law(13) and its violation gives rise to a cause of action for the commercial tort of unfair competition. Id.

E.   Application of the Law to the Evidence in this Case

     The evidence in the record reveals that Rush's work consists of much more than a mere literal likeness of Woods. It is a panorama of Woods's victory at the 1997 Masters Tournament, with all of the trappings of that tournament in full view, including the Augusta clubhouse, the leader board, images of Woods's caddy, and his final round partner's caddy. These elements in themselves are sufficient to bring Rush's work within the protection of the First Amendment. The Masters Tournament is probably the world's most famous golf tournament and Woods's victory in the 1997 tournament was a historic event in the world of sports. A piece of art that portrays a historic sporting event communicates and celebrates the value our culture attaches to such events. It would be ironic indeed if the presence of the image of the victorious athlete would deny the work First Amendment protection. Furthermore, Rush's work includes not only images of Woods and the two caddies, but also carefully crafted likenesses of six past winners of the Masters Tournament: Arnold Palmer, Sam Snead, Ben Hogan, Walter Hagen, Bobby Jones, and Jack Nicklaus, a veritable pantheon of golf's greats. Rush's work conveys the message that Woods himself will someday join that revered group.

In regard to the Ohio law right of publicity claim, we conclude that Ohio would construe its right of publicity as suggested in the Restatement (Third) of Unfair Competition, Chapter 4, Section 47, Comment d., which articulates a rule analogous to the rule of fair use in copyright law. Under this rule, the substantiality and market effect of the use of the celebrity's image is analyzed in light of the informational and creative content of the defendant's use. Applying this rule, we conclude that Rush's work has substantial informational and creative content which outweighs any adverse effect on ETW's market and that Rush's work does not violate Woods's right of publicity.

     We further find that Rush's work is expression which is entitled to the full protection of the First Amendment and not the more limited protection afforded to commercial speech. When we balance the magnitude of the speech restriction against the interest in protecting Woods's intellectual property right, we encounter precisely the same considerations weighed by the Tenth Circuit in Cardtoons. These include consideration of the fact that through their pervasive presence in the media, sports and entertainment celebrities have come to symbolize certain ideas and values in our society and have become a valuable means of expression in our culture. As the Tenth Circuit observed "[c]elebrities ... are an important element of the shared communicative resources of our cultural domain." Cardtoons, 95 F.3d at 972.

     In balancing these interests against Woods's right of publicity, we note that Woods, like most sports and entertainment celebrities with commercially valuable identities, engages in an activity, professional golf, that in itself generates a significant amount of income which is unrelated to his right of publicity. Even in the absence of his right of publicity, he would still be able to reap substantial financial rewards from authorized appearances and endorsements. It is not at all clear that the appearance of Woods's likeness in artwork prints which display one of his major achievements will reduce the commercial value of his likeness.

     While the right of publicity allows celebrities like Woods to enjoy the fruits of their labors, here Rush has added a significant creative component of his own to Woods's identity. Permitting Woods's right of publicity to trump Rush's right of freedom of expression would extinguish Rush's right to profit from his creative enterprise.

     After balancing the societal and personal interests embodied in the First Amendment against Woods's property rights, we conclude that the effect of limiting Woods's right of publicity in this case is negligible and significantly outweighed by society's interest in freedom of artistic expression.

     Finally, applying the transformative effects test adopted by the Supreme Court of California in Comedy III, we find that Rush's work does contain significant transformative elements which make it especially worthy of First Amendment protection and also less likely to interfere with the economic interest protected by Woods' right of publicity. Unlike the unadorned, nearly photographic reproduction of the faces of The Three Stooges in Comedy III, Rush's work does not capitalize solely on a literal depiction of Woods. Rather, Rush's work consists of a collage of images in addition to Woods's image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event. Because Rush's work has substantial transformative elements, it is entitled to the full protection of the First Amendment. In this case, we find that Woods's right of publicity must yield to the First Amendment.

also - Nussenzweig v DiCorcia

Between 1999 and 2001 DiCorcia created a series of photographs, taken on the streets of New York, which he entitled "HEADS". In making those images, DiCorcia took candid, un-staged images of people in Times Square as they passed by a particular location. He used special lighting at the exact location where the photographs were taken. He later edited and selected the pictures to arrive at the final 17 photographs he included in the "HEADS" project. DiCorcia did not seek or obtain consent to photograph any of the people whose likenesses were included in this collection.

One of the photographs that is part of the project is of the plaintiff, Erno Nussenzweig. The photograph as presented is unmistakedly and readily identifiable as that of plaintiff. Neither of the defendants ever obtained plaintiff's consent to take, use, sell, exhibit or publish the photograph of plaintiff.

DiCorcia admits to creating 10 edition prints of the photograph of plaintiff, plus 3 artist's proofs.
...
The HEADS collection, including the photograph of plaintiff, was exhibited at the Pace Gallery from September 6, 2001 through October 13, 2001. A catalogue was published to coincide with the exhibition and the catalogue contained reproductions of all the photographs in the HEADS collection, including the photograph of plaintiff. According to defendant, a "substantial" number of catalogues were distributed to the public during the period of September through October 2001.

The Pace Gallery exhibition was open to the public and was advertised and reviewed in local and national media. Defendants provided reproduced reviews from such publications as The New York Times, Time Out New York and The Village Voice,

which are periodicals of general circulation in New York City. Defendants also reproduced reviews of the exhibition in art periodicals of national circulation. In two reviews, W Magazine's September 2001 edition, and Art Forum Internationals' summer 2001 edition, the photograph of plaintiff was reproduced
...
Pace sold all 10 edition prints of the photograph, which were priced between $20,000 and $30,000 a piece. Defendants claim that the last print was sold in March 2003. Plaintiff claims, however, that shortly before he commenced this action (in April 2005) the photograph of him was still being offered for sale at Pace.

Plaintiff is an Orthodox Hasidic Jew and a member of the Klausenberg Sect, a sect that was almost completely destroyed during the Holocaust. He holds a deep religious conviction that the use of his image for commercial and public purposes violates his religion. In particular he believes that defendants' use of his image violates the second commandment prohibition against graven images.

When plaintiff first discovered the photograph of his image, he immediately contacted [*4]defendants regarding the use. DiCorcia responded that the photographs were not being used for either "advertising" or "trade" and that he believed he was within his legal rights to continue use the photograph of plaintiff in the manner he had been. This action ensued.

...
Civil Rights Laws §§ 50 and 51 prohibit the unconsented-to use of identity within the State of New York "for advertising purposes or for the purposes of trade." The rights contained in these statutes are the exclusive remedies allowed in New York State for an unauthorized use of one's likeness. Howell v. Post, 81 NY2d 115 (1993). Right of privacy laws are intended to defend the average person from unwanted public exposure and the potential emotional damage thereby inflected. Weisfogel, Fine Arts v. Uncertain Protection: The New York Right of Privacy Statute and the First Amendment, 20 Columbia - VLA J.L. & Arts 91 (1995). New York's Privacy laws were enacted to strike a balance between the right to privacy, on the one hand and the right to first amendment free speech on the other. Arrington v. New York Times, 55 NY2d 433 (1982). The elements of a privacy claim under Civil Rights Laws §§ 50 and 51 are: (1) use of plaintiff's name, portrait, picture or voice, (2) for advertising purposes or for trade, (3) without consent, and (4) within the State of New York. Hoepker v. Kruger, 200 FSupp2d 340 (SDNY 2002).
...
Plaintiff denies that the photograph is art. He argues that defendants' intended purpose was to sell the photograph and reproductions thereof. Plaintiff claims the sale and/or intended sale of the photograph constitutes a commercial use that is actionable under the privacy laws. He points to the actual sales made to support his argument and also to the fact that the exhibition was in a venue operating for profit (e.g. an art gallery) and not a museum.

...
Plaintiff urges that privacy cases require a balancing of competing constitutional interests, and that this can only be accomplished after trial. Plaintiff argues that freedom of expression is not an absolute guaranty, but requires a trier of fact to weigh plaintiff's constitutional rights to privacy and his right to practice his religion against defendants competing interests.

The Court of Appeals has repeatedly held that the New York statutory right of privacy restricts the use of one's likeliness against use for advertising and trade only and nothing more. It is a strictly construed statute enacted with sensitivity to the potentially competing values of privacy protection versus free speech. Messenger v. Gruner, 94 NY2d 436 (2000); Finger v. Omni Publs. Int., 77 NY2d 138 (1990); Arrington v. New York Times, 55 NY2d 433 (1982).

There are recognized categories of protected uses that are not actionable under Civil Rights Laws §§ 50 and 51. The most widely recognized protected category is for matters that are "newsworthy." Messenger v. Gruner, supra. The courts also recognize that as long as the primary purpose of the use is newsworthy, incidental or ancillary commercial use of the image does not otherwise turn a protected use into an unprotected use. Arrington v. New York Times, supra; Altbach v. Kulon, 302 AD2d 655 (3rd dept. 2003). Thus, for example, use of a likeness in connection advertising or selling newspaper subscriptions does not convert an excepted use into an actionable use under the New York State Privacy Laws. Messenger v. Gruner, supra; Velez v. VV Pub. Cap, 135 AD2d 47 (1st dept. 1988) lv to app den 72 NY2d 808 (1988). Moreover, a profit generating motive will not convert an otherwise newsworthy use of someone's likeness into one that is used for advertising or trade purposes. Dworkin v. Hustler Magazine, Inc., 867 F2d 1188 (9th Circuit) cert den 110 S Ct 59 (1989).

....
In recent years, some New York courts have addressed the issue whether an artistic use of an image is a use exempted from action under New York States Privacy Laws. Altbach v. Kulon, 302 AD2d 655 (3rd dept. 2003); Simeonov v. Tiegs, 159 Misc 2d 54 (NY Civ Ct 1993); Hoepker v. Kruger, 200 FSupp2d 340 (SDNY 2002). They have consistently found "art" to be constitutionally protected free speech, that is so exempt. This court agrees.

Even while recognizing art as exempted from the reach of New York's Privacy laws, the problem of sorting out what may or may not legally be "art" remains a difficult one. Some states for example, limit art to transformative and not duplicative likenesses. See for example: Comedy II Publications, Inc. v. Gary Saderup, Inc., 25 Cal 4th 387 (2001) cert den 534 US 1078 (2002) [only transformative art was entitled to 1st amendment protection against California]. Other states have limited exempted use to original works of fine art, but not to distribution of reproductions. Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 250 GA 135, 296 SE2d 697 (Sup Ct 1982).

New York has been fairly liberal in its protection of what constitutes art. Altbach v. Kulon, supra; Simeonov v. Tiegs, supra; Hoepker v. Kruger, supra. In Hoepker v. Kruger, the [*7]court recognized that art can be sold, at least in limited editions, and still retain its artistic character. This analysis recognizes that first amendment protection of art is not limited to only starving artists. The analysis in Hoepker is consistent with the primary purpose/ incidental purpose doctrines, that have developed in connection with the newsworthy exemptions to privacy protections. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes. DiGregorio v. CBS, Inc., 123 Misc 2d 491 (Sup Ct NY Co 1984).

....
In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community.

None of the HEADS photographs were used to advertise anything other than the HEADS collection. The catalogue portfolio was used to advertise the exhibition, which is a permitted use under Civil Rights Laws §§ 50, 51. Altbach v. Kulon, supra.

Both cases show you to be wrong in your assessment....