Annia wrote:
Is it acceptable for a model to insist on her/his own contract specifying that neither party may use the prints for commercial work or get paid for them in any way without written consent from the other party? Might seem like a silly question but I've had some opposition to the suggestion and it seems like a reasonable request to me. I'd like to hear some opinions on this subject. Also, does anyone know of anywhere I could look at a few model releases and copy them?

Before the bashing starts - Yes, I did check the forums, but after spending half an hour looking through them with no luck I decided to post my own. Deal with it.

Thank you

In business, it is "acceptable" to ask for anything you like. The market will then tell you how "reasonable" your requirements are. If what you're asking for is unreasonable, you'll have a hard time working at all. If it's TOO reasonable, everybody will want to work with you!

On the face of it, your idea is very reasonable -- you do some modeling work -- if there is payment, you deserve a piece of it, right?

But here are some realities. A photo may not get sold for two or three years after it is taken. During that time, the model and photographer both may have moved to other towns, changed their phone numbers and email addresses -- it can be VERY difficult to track a model down.

In addition, many uses of photography, particularly the kind of photography done in the average TFP session, do not generate large sales. We may be literally talking about a couple of dollars here and there. Worse, the sale may be wrapped up in a package deal -- if I sell an article to a photo magazine, and there are four images included in the sale -- how much is YOUR particular image worth as a percentage of the total article and illustrations?

Finally, if you've spent much time in business, you know that contracts that require you to negotiate something after the fact aren't very popular. For example, imagine if you bought a house, but then had to go back to the original owner and negotiate every time you wanted to change the color of the paint, plant a different kind of flowers in the yard, and so forth. Two years from now, you have absolutely no motivation to be reasonable in what you ask for, right? So by giving you that power over me, I'm basically guaranteeing myself trouble later.

For these and other reasons, if a model asks for what you are asking for, as a photographer, I simply say "sorry, no" and move on to the next model. I have a commercial release for virtually every shoot I've done, so if I ever want to sell the images, use them to illustrate an article, etc., I don't have to hire a private detective to hunt down the model, and then a lawyer to negotiate the usage rights with her.

If you were Angelina Jolie, it would be a completely different story. We'd be talking about thousands of dollars of value from the images from our shoot, and what you're talking about would be reasonable. But given the actual financial value of the average TFP shoot, I think you're asking too much.

Some photographers will accept what you ask for. Some will ask you to pay them for a contract like that. And others, like me, will refuse to accept it. All three responses are "acceptable." But I'm betting only a very small percentage will be willing to sign your contract.

Regards,
Paul

Mickle Design Werks wrote:
Personally, I feel it is questionable ethics to ask a model to shoot under the guise of portfolio developement and testing and then sell the images and keep all of the profits. To me this violates the spirit of TFP shoots.  If your intent is to sell the images or you discover that you may want to sell the images after the shoot then pay the model and be in the clear.

I think this argument is a "straw man." Photographers like me who require a full commercial release don't do it because we are secretly plotting behind the scenes with an art director to defraud the model of the $50 per hour she deserves for a commercial shoot. Puhleese.

Rather -- it's a simple protection of the rights to our work. I have no idea what value my work may have five, ten years from now. But I hope by the time I'm an old man, that my work will have some intrinsic value -- maybe even somebody will want to publish a book about me. Who knows? My approach reserves the right to do stuff with my work later, without having to attempt to track down and then negotiate usage rights with a model who in all likelihood, has moved on in her life, and probably would rather not even think about the modeling work she did years ago, much less let me include it in a book.

I think for most of us, there is no "intent to sell the images" yet there is ALWAYS intent to sell the images. If I honestly believed that there was 0 value to the work I do, how could I wake up in the morning and do it? See the nuance here?

I think you are oversimplifying the situation. Nobody is trying to rip off the model. We're just trying to find a way to make doing TFP shoots worthwhile to us.

My business model is simple -- if you want to control the rights of the work we do together, we can still shoot, but you're going to pay me for it. If you want to shoot with me, but not pay me cash, I'll accept a model release instead. Why is that so hard to understand?

Paul

Annia wrote:
What if it were limited to - say - any profit over X amount for a period of 2 years or so, split 75/25? Something along those lines.

Record keeping nightmare is all I can think. Besides, a simple clause like that has too many ways out, and unless it's a thousands-of-dollars deal it wouldn't be worth persuing legal action over (cause that's what you'd need to get your fair share.) I use either a full release (with possible limitations such as preventing use in adult materials) or self promotion only.

Annia wrote:
What if it were limited to - say - any profit over X amount for a period of 2 years or so, split 75/25? Something along those lines.

I still think you're going to have a tough time of it getting really good photographers who also do TFP to sign.

But I'd turn this whole question around. I looked at your portfolio -- you're doing bdsm/fetish nude work, and objectively, I'd say your look, your ideas,  and your work has the potential for significant artistic value. Instead of just doing random TFP shoots with random photographers, why not target specific markets and go after them? Couldn't you look for paying shoots with photographers who are doing work for some of the alternative and fetish magazines? Or alternatively, why not do a website that sells your work, or create pieces for display and sale in art galleries, where you pay the photographer, but get the rights to do whatever you want with the results?

I think these endless arguments about TFP come up when people try to take it too far. When you reach the point that you're this concerned about what happens to your images, maybe it's natures way of telling you it's time to move up the food chain, and start doing work with a clear objective and path to profitability. . .

The more I think about this, the more I realize that you are really in a different place than most models looking for TFP. It sounds to me like one alternative for you would be a long-term business relationship with a particular photographer, where you have a clear intent to produce work for sale, and a workable business plan to make it all happen. In a situation like this, I think it would be very reasonable for you to have a contract like you describe in place.

Best wishes,
Paul

bang bang photo wrote:
I think this argument is a "straw man." Photographers like me who require a full commercial release don't do it because we are secretly plotting behind the scenes with an art director to defraud the model of the $50 per hour she deserves for a commercial shoot. Puhleese.

Rather -- it's a simple protection of the rights to our work. I have no idea what value my work may have five, ten years from now. But I hope by the time I'm an old man, that my work will have some intrinsic value -- maybe even somebody will want to publish a book about me. Who knows? My approach reserves the right to do stuff with my work later, without having to attempt to track down and then negotiate usage rights with a model who in all likelihood, has moved on in her life, and probably would rather not even think about the modeling work she did years ago, much less let me include it in a book.

I think for most of us, there is no "intent to sell the images" yet there is ALWAYS intent to sell the images. If I honestly believed that there was 0 value to the work I do, how could I wake up in the morning and do it? See the nuance here?

I think you are oversimplifying the situation. Nobody is trying to rip off the model. We're just trying to find a way to make doing TFP shoots worthwhile to us.

My business model is simple -- if you want to control the rights of the work we do together, we can still shoot, but you're going to pay me for it. If you want to shoot with me, but not pay me cash, I'll accept a model release instead. Why is that so hard to understand?

Paul

What you are talking about is the commerical use of the image assuming that you have explained to the model that any image that you produce could be used for you to potentially profit from.

What I was refering to was the lack of disclosure of this intent by Photographers to models when shooting TFP work.


I take the time to explain to models what I intend to use the images for and potential uses (like print sales, gallery shows, or print opporutunities) and I assume that you do the same.  What makes it "shady" is when this potential use is assumed to be understood by the model and taking for granted that every model that you work with understands that TFP images can have commerical use. 

Finally there are legal consequences for this kind of thinking. For photographers this has the potenital for legal exposure if you do not adequately compensate the model for the use of thier likeness without thier consent for that use. The Nestle case , for example, sets up the this same kind of arrangement where a model release was signed ($250 for the shoot with $2000 more if the images were used commercially in Canada, the images ended up beign used in several countries, inlcuding the US, for several years without the models knowledge of this use) but the use images for commerical purposes ended up costing Nestle $15 million.  I would argue that using TFP images for commerical use without disclosing and having the model sign off as having knowledge of this potential use could leave you open to similar legal jeapordy (probably not to the tune of $15 million...lol).