Webspinner wrote:

With your subject matter, it is understandable that a release is needed.

Have you seen some of my subject matter?

Webspinner wrote:

I guess that I am weird and lucky to be friends with all of my models.

Historically, friends have become overnight enemies thoughout many a people's lifetime.

markcomp wrote:
I would agree with the differences in the state laws except where the Federal laws override (and I use that loosely in light of the tenth amendment).  So, let's get to the meat of it, does your interpretation of copyright allow for the self promotion of a non release TFP?

The issue under discussion is models releases, which have nothing whatever to do with copyright.  Consequently, there is no reason to interpret copyright law since, as I said earlier, it does not apply.

What does apply is the various state laws on privacy, right of publicity and appropriation of likeness.  There is enormous variation in these laws, and there is no relevant federal law which "overrides" them.

Vegas Alien wrote:

Have you seen some of my subject matter?

Is that what you agreed to do with this model?

Luminos wrote:
Nudes do not require a copy of anything.  No records are required (unless you are shooting something hardcore.)

No way, nohow. I don't shoot nudes without seeing a photo ID with DOB and a copy of it for my records. Under our ridiculous system of laws you are de facto (if not de jure) guilty until proven innocent if accused of shooting a minor underaged. Sure you can fight it, and no it's not illegal per se to shoot a minor naked. Acknowledged. But it's theoretically possible to jump out of an airplane from ten thousand feet without a parachute and live, too - in fact, it's happened. But it's not the odds play. I like to pick my battles and this is not one I care to pick. Model doesn't want me to have a copy of ID, no pictures.

Incidentally, the law today is not necessarily the law tomorrow. When they passed some of the 2257 stuff, they made it retroactive. TEN YEARS retroactive. Blatantly unconstitutional and I guarantee that in the current oh-de-pwecious-pwecious-chillun climate, it will be enforced. Same thing could happen to non-hardcore nudes under a theoretical COPPA II. As Dogbert might say in response to being asked then why he did it, "Seems like a silly question now, doesn't it?"

M

D. Brian Nelson wrote:
Self promotion is not "commercial use." 

-Don

"Honest, your honor.  I wasn't advertising, I was just engaging in self promotion."

Think about that a bit.  That is the arguement you would have to give in court, when the model sues and claims she didn't sign the release because of (fill in the blank.)

markcomp wrote:
In a TFP shoot, you the photographer, own the copyright and may use the material for self promotion.  If that was your only intent from the beginning, you should have shot with her.

Yes, you own the copyright but the model owns her own likeness.  The purpose of the release is to give the photographer rights to the model's likeness.  Otherwise, if you publish them (which may mean just showing them to a third party) you are guilty of violation of her privacy rights.  Without a release she could sue you claiming that she did the pictures privately for you but not for public exhibition.

Stephen Melvin wrote:
(It appears that the matter was settled out of court, so we don’t know what really happened.)"

That's just how most of you who do not require models to sign releases, will have to resort to in the long run. Sometimes out of court settlement is good, however, I would think it's an option taken because leaving it to the courts may very well prove to be more damaging to one's reputation and/or wallet.

StMarc wrote:

No way, nohow. I don't shoot nudes without seeing a photo ID with DOB and a copy of it for my records. Under our ridiculous system of laws you are de facto (if not de jure) guilty until proven innocent if accused of shooting a minor underaged. Sure you can fight it, and no it's not illegal per se to shoot a minor naked. Acknowledged. But it's theoretically possible to jump out of an airplane from ten thousand feet without a parachute and live, too - in fact, it's happened. But it's not the odds play. I like to pick my battles and this is not one I care to pick. Model doesn't want me to have a copy of ID, no pictures.

Incidentally, the law today is not necessarily the law tomorrow. When they passed some of the 2257 stuff, they made it retroactive. TEN YEARS retroactive. Blatantly unconstitutional and I guarantee that in the current oh-de-pwecious-pwecious-chillun climate, it will be enforced. Same thing could happen to non-hardcore nudes under a theoretical COPPA II. As Dogbert might say in response to being asked then why he did it, "Seems like a silly question now, doesn't it?"

M

That a retroactive law requiring the keeping of records might be passed is the only reasonable reason for going beyond requiring the display of proof to demanding the retention of proof.

But, it is a bit thin.

As for protecting the children - I am more than on the side of the law on that one.  If only we could avoid the ridiculous, like locking up parents for a "bear skin rug" shot as was done several years ago in Florida.

Stephen Melvin wrote:
From the ASMP web site:


And later in the same article:
"The passage of time doesn’t necessarily reduce your risk. In the Nov. 22, 1999, edition of the New York Observer, an article relates that Peter Beard was threatened with a lawsuit for a photo he’d taken a dozen years earlier. In 1987, Beard had photographed a 17-year-old girl near Lake Rudolph in Kenya. But by 1997, that girl had moved to Los Angeles, where she was waiting tables and looking for work as a model. A New York friend called to tell her that a SoHo gallery was selling her picture for thousands of dollars. She reacted by hiring a lawyer and demanding $50,000 plus 15 percent of Beard’s sales. (It appears that the matter was settled out of court, so we don’t know what really happened.)"

She may have gotten what she asked or may have gotten $1.00. We don't know so you can't use this as backup for this arguement.  That was 1997. So what about the Hassidac guy in 2005 (I believe)? He lost. And I think he should have won that one. But if the photo was in a gallery, no release needed.

Webspinner wrote:
Is that what you agreed to do with this model?

We agreed to nudes and on the phone we talked about my "Angus Deo" style work. Your telling D. Brian that it's understandable that with his content a release is required goes against what you said earlier:

"but in the commercial world, when people are 'testing' or shooting for 'fun' in a non monetary basis, they do not ask for model releases unless or until money exchanges hands."

So are you now saying for certain types of content a release for TFCD is reasonable or expected? I'm not saying what he does is testing or for fun, but I thought your point was to equate what I was doing with the same.

TXPhotog wrote:

The issue under discussion is models releases, which have nothing whatever to do with copyright.  Consequently, there is no reason to interpret copyright law since, as I said earlier, it does not apply.

What does apply is the various state laws on privacy, right of publicity and appropriation of likeness.  There is enormous variation in these laws, and there is no relevant federal law which "overrides" them.

It seems to me from the OP's post that the issue is less about model releases and more about usage.  The OP himself stated that his intent was to only use the shots for personal use so the issue actually becomes one of usage as it applies to copyright.  If I have misinterpreted the OP's initial post then I apologize to everyone but after re reading it, that is the only conclusion I can see.

Lapis wrote:
I have worked with over 90 photographers in the last two years, many of them several times. I have signed releases whenever I was paid, or when we had shared usage rights.

Both photographers I work with in this city who bill 6000 a day plus 10000 or more for image rights have never asked me to sign a release for non monetary compensation....the only time I signed one, was when I was paid to give gallery rights to the photographer as he was making a series.

Vito wrote:
And he didn't need a release for gallery rights...go figure

Lapis lives in Illinois as do the photographers of whom she speaks. The oft-misquoted street photography/fine art exception in NY does not apply here.

What does apply here is 765 ILCS 1075, the Right of Publicity Act.

I assure you that they most certainly did need the release for gallery rights. I would have gladly taken up her case with great glee had he sold gallery prints without one. She'd have been entitled to gross profits, attorney's fees - and I don't work cheap - and a permanent injunction. Black-letter law, plain and simple.

Wanna fight me on First Amendment grounds? Hope you've got REAL deep pockets. I'll win in state court, and you'll have to fight me in Federal court. Since you have no potential for damages, your lawyer will have to either take the case pro bono or hourly. And you don't walk out the door of a Federal court for less than twenty grand. Simple as that.

M

Luminos wrote:
"Honest, your honor.  I wasn't advertising, I was just engaging in self promotion."

Think about that a bit.  That is the arguement you would have to give in court, when the model sues and claims she didn't sign the release because of (fill in the blank.)

Not a problem.  "Commercial use" is clearly defined in California law, and I believe the rest of the states as well.  It does not include self-promotion, or sale of the image as art, or shooting for news media, even though each of those may have to do with money.  "Commercial use" only involves advertising. 

-Don

P.S.  Well, according to StMarc, above, other states may differ.

StMarc wrote:
What does apply here is 765 ILCS 1075, the Right of Publicity Act.

I assure you that they most certainly did need the release for gallery rights. I would have gladly taken up her case with great glee had he sold gallery prints without one. She'd have been entitled to gross profits, attorney's fees - and I don't work cheap - and a permanent injunction. Black-letter law, plain and simple.

Okay....let's play LEGAL OR NO LEGAL

Model from           Photograph Displayed in Gallery In       Shot In      Legal/Not
-----------          ---------------------------------     ---------    ----------
Chicago                Chicago                                        Chicago
Chicago                New York                                      Chicago   
Chicago                New York                                      New York
New York              New York                                      Chicago
New York              Chicago                                        New York

Tony Culture Photoz wrote:
In all honesty, shots obtained from TFP shoots, may very well be marketable. It isn't a good business practice (on the part of the photographer), to let him/herself fall in a rut (by not requiring the model(s) to sign a release.

tony, you keep writing all this obtuse stuff.  good business practice is knowing how and when releases are used.  good business practice is not just handing out releases willy-nilly without intended purpose.  a model not signing away his/her likeness without knowing the destination is good business practice (on their part).  a model signing anything placed in front of them without intended purpose is not good business practice (on their part).

where this difference lies is in the application of model usage.  an agency worth their salt would run from such an arrangement you call a good business practice.  based on your good business practice, be prepared to be laughed out of the office upon such a demand.  as well, kiss any future street-level agency work good-bye.  that is what constitutes business practice, the business of model placement and receiving due compensation for release of likeness. 

what you are attempting to explain is internet tfp practice which in most cases does not even equate to actually doing the business of modeling or modeling photography.  casual tfp shooting not driven by commerce does not fall under business classification unless there is intended business purpose for releasing the likeness.  if there is it should be disclosed.  if there isn't and is mere speculation, a model would be stupid to sign a release for simply taking pictures for personal use as there would eliminate future consequence of where that image(s) will land.

--face reality

StMarc wrote:
What does apply here is 765 ILCS 1075, the Right of Publicity Act.

I assure you that they most certainly did need the release for gallery rights. I would have gladly taken up her case with great glee had he sold gallery prints without one. She'd have been entitled to gross profits, attorney's fees - and I don't work cheap - and a permanent injunction. Black-letter law, plain and simple.

Okay....let's play LEGAL OR NO LEGAL

Model from           Photograph Displayed in Gallery In       Shot In      Legal/Not
-----------          ---------------------------------     ---------    ----------
Chicago                Chicago                                        Chicago
Chicago                New York                                      Chicago   
Chicago                New York                                      New York
New York              New York                                      Chicago
New York              Chicago                                        New York

John Jebbia wrote:

Jeska. I understand what you're saying. And to a point, I agree that a model should be compensated monetarily if the photographer is going to sell the images.

But stop and think for a minute. Why would you not allow a photographer to profit from his TFP session with you? Do you realize that if not for TFP's most models here would either have no portfolio or they would have to spend thousands of dollars to build one?

So, the photographer schedules time out of his schedule to provide you with FREE photos. An $XXX value. When he could have tried to book a paying client instead.

Meanwhile, you're profiting from your TFP sessions. You're getting paid jobs as a result of them. Why would you want to keep a photographer from making a few bucks from them as well?

Think of your average everyday person. Walks into a photography studio. Is quoted $400 for a sitting. Photographer says, "Hey, I really like your look. I have a project you would do well for. Tell you what. I'll waive my fee if you'll do this commercial project for me."

Most people would jump on that! Save $400. But not internet models. No no no. They're the only people allowed to make money here.

Too many of you ladies think we're going to make thousands of dollars off of your photos. With some exceptions, that does not happen. Most of the photos sit in a stock library for years and never get sold. And then when they finally do get sold we're making next to squat.

And to top it all off, so many of you girls have these insane rates that, for the average entreprenurial (sp?) photographer on here would far surpass any profit we could hope to make.

Sorry. I went on a tangent. But I just want you to stop and think for a moment. That you act as if TFP was a waste of your time. When that same TFP session might have cost YOU hundreds of dollars.

As Ringo says, "I'VE GOT BLISTERS ON MY FINGERS!"

thats true.
when you put it that way then yeah i guess it is okay to sign one.
i havent done tfp in a while so i didn't remeber but actually i did sign a few releases when i did do tfp.
I do understand it takes allot of cash for a photographer to set up a shoot so yeah i guess i wouldn't mind him selling em...

Lapis wrote:
Okay, speaking as a model now, I will say that in general the 'bigger' photographers I have worked with on a non monetary compensation have not made me sign a release. We agree it is for personal promotion, and if either one of us is to profit from it i.e I decide to start a paid site or the photographer is going to sell my images to a gallery, then the release is negotiated.

You agreed that it was for personal promotion. If one of you sells the image, where is the documentation to prove who gets what. Your comment about bigger photographers is condescending and incorrect.

If it isn't in writing it doesn't exist. You don't ever do it afterwards. That is naive

Vito wrote:
Okay....let's play LEGAL OR NO LEGAL

Model from           Photograph Displayed in Gallery In       Shot In      Legal/Not
-----------          ---------------------------------     ---------    ----------
Chicago                Chicago                                        Chicago
Chicago                New York                                      Chicago   
Chicago                New York                                      New York
New York              New York                                      Chicago
New York              Chicago                                        New York

Remember, on the web, the shot can be viewed in any state.  And the model can go after you in the state with the most favorable laws.

State laws really only apply in very narrow cases, where the shots were shot in the state, the shots were displayed in the state, and both parties reside in the state.  Most publications, and the Web, are multi-state.  When puting the shots out there for all to see, you have to pretty much take the most conservative approach.

Luminos wrote:
"Honest, your honor.  I wasn't advertising, I was just engaging in self promotion."

Think about that a bit.  That is the arguement you would have to give in court, when the model sues and claims she didn't sign the release because of (fill in the blank.)

D. Brian Nelson wrote:
Not a problem.  "Commercial use" is clearly defined in California law, and I believe the rest of the states as well.  It does not include self-promotion, or sale of the image as art, or shooting for news media, even though each of those may have to do with money.  "Commercial use" only involves advertising.

Illinois' definition is very broad:

(765 ILCS 1075/5)
    Sec. 5. Definitions. As used in this Act:
    "Commercial purpose" means the public use or holding out of an individual's identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.

A print, even a gallery print, is clearly a product, merchandise, or good. Using an individual's identity on such a print is use for a commercial purpose.

D. Brian Nelson wrote:
P.S.  Well, according to StMarc, above, other states may differ.

In the best tradition of jurisprudence I will now slightly restate my argument. Illinois *does* have, as is probably required by the First Amendment, a "fine-art" exception. To wit:

(765 ILCS 1075/35)

    (b) This Act does not apply to the following:
        (1) use of an individual's identity in an attempt to portray, describe, or impersonate that individual in a live performance, a single and original work of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or audio‑visual work, provided that the performance, work, play, book, article, or film does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services;

(Emphasis mine.) So, I am willing to concede that if that Gallery Print was serial number 1 of 1, never to be reprinted, you could likely get away with selling it. However, if it's one of a limited run of two, I gotcha. It's no longer single, and I own you.

There is also a an exception for photographers to use such works but only unless and until the individual depicted therein does not positively and affirmatively require the photographer to stop. You can use the model's pic in a big ol' promo print in the window of your studio, and she can't sue you for it (the statute provides for minimum damages without having to prove up profits) but if she asks you to stop, you have to, or you are in violation of the law.

M

D. Brian Nelson wrote:
Not a problem.  "Commercial use" is clearly defined in California law, ... "Commercial use" only involves advertising.

don, it isn't advertising that determines commercial usage, it is commerce.  in fact, if anything california is far more strict than elsewhere due to image (likeness) protection because of hollywood. 

trust me, if i took your photo and your likeness was clearly visible and sold it as self-proclaimed "art" without permission your legal team would have a field day and you would be awarded damages.

--face reality

Vito wrote:
Okay....let's play LEGAL OR NO LEGAL

Ooh, I do love an easy one!

Model from           Photograph Displayed in Gallery In       Shot In      Legal/Not
-----------          ---------------------------------     ---------    ----------
Chicago                Chicago                                        Chicago     DEPENDS ON INDIVIDUAL FACT PATTERN
Chicago                New York                                      Chicago     DEPENDS ON INDIVIDUAL FACT PATTERN
Chicago                New York                                      New York     DEPENDS ON INDIVIDUAL FACT PATTERN
New York              New York                                      Chicago     DEPENDS ON INDIVIDUAL FACT PATTERN
New York              Chicago                                        New York     DEPENDS ON INDIVIDUAL FACT PATTERN

What do I win?

M

Vito wrote:

Don't have a quote but without a release you can use images in portfolios (print or online), editorial and as art (as in print showings) and other non-commerical ventures. In some cases you can publish (and profit). You can search for the case of the Hassidic man in Manhattan who was an unwitting subject of a "street photographer" who was capturing people walking down the street. He published the book, the man who was in one image sued and LOST.

I might be wrong, but I learned in school that you need a release for any commercial use and that self promotion falls into the realm of commercial advertising.  You can use non-released images in a print portfolio because you typically show that privately rather than circulating it publicly but if you do a postcard mailer or website or something, you can get into legal trouble.  The street photographer's book falls into both the art and editorial categories I believe, which are both a little more protected.

Anyone know if this is this correct or incorrect?

FaceReality wrote:

don, it isn't advertising that determines commercial usage, it is commerce.  in fact, if anything california is far more strict than elsewhere due to image (likeness) protection because of hollywood. 

trust me, if i took your photo and your likeness was clearly visible and sold it as self-proclaimed "art" without permission your legal team would have a field day and you would be awarded damages.

--face reality

Sale of the photo tends to be cut and dried it appears.  "Personal" use is where people seem a bit hung up.

Since money did not change hands (TFP) it is difficult to prove the contract.  If the model accepts pay (and you can produce a cancelled check) - then the "implied contract" can save you from losing in court (maybe.)  But only after some weighty lawyer's fees.

I seem to recall the paper once won a case based on proof of payment of the modeling fee. (The release was lost.)  The judge agreed that the model obviously intended the shots to be used (thus eliminating the punitive damage claim), then noted the shots had been a "supplement" feature shot at the paper, and thus threw out the claims of damages.

Of course, that was thirty years ago.  Things may have changed a bit.  Somehow, I don't think in the photographer's favor, however.

FaceReality wrote:
don, it isn't advertising that determines commercial usage, it is commerce.  in fact, if anything california is far more strict than elsewhere due to image (likeness) protection because of hollywood. 

trust me, if i took your photo and your likeness was clearly visible and sold it as self-proclaimed "art" without permission your legal team would have a field day and you would be awarded damages.

--face reality

I think Don meant advertising in the sense of self-promotion as opposed to using the image in a paid and placed advertisement.

StarlaMeris wrote:

I might be wrong, but I learned in school that you need a release for any commercial use and that self promotion falls into the realm of commercial advertising.  You can use non-released images in a print portfolio because you typically show that privately rather than circulating it publicly but if you do a postcard mailer or website or something, you can get into legal trouble.  The street photographer's book falls into both the art and editorial categories I believe, which are both a little more protected.

Anyone know if this is this correct or incorrect?

The fact that the street person had to take the case to court, only to lose, indicates that the court recognizes exceptions.  The fact he could find a lawyer to fight the case (most likely taking the pay from the judgement) is an indication that you walk a very undefined line even on some of the "easy calls".

StarlaMeris wrote:
Anyone know if this is this correct or incorrect?

putting up images on a personal website could probably be argued either way.  it would most likely go toward spirit and intent of the placement and would be approached from a perspective of no harm, no foul, as well as cost to litigate.

nobody can cite a case where action has been taken against one that has been in violation, but as noted earlier if the request was to remove and it wasn't there could be impending reasoning to proceed with action (maybe a wedding shot of a now divorced couple, for example).

the prudent thing for a photographer to do would be to simply strike the imaging upon request and replace it with something else.

--face reality

FaceReality wrote:
putting up images on a personal website could probably be argued either way.  it would most likely go toward spirit and intent of the placement and would be approached from a perspective of no harm, no foul, as well as cost to litigate.

nobody can cite a case where action has been taken against one that has been in violation, but as noted earlier if the request was to remove and it wasn't there could be impending reasoning to proceed with action (maybe a wedding shot of a now divorced couple, for example).

the prudent thing for a photographer to do would be to simply strike the imaging upon request and replace it with something else.

--face reality

But then wouldn't it be best to get a release in all cases to protect yourself from people changing their minds in the future as to how you can use their image (as in your divorce example)?  The "just take it down" motto might work for the bulk of your work, but if a shot you did of a model was one of the best shots of your life and she decided 2 years down the line she looked too sexy in it or some such thing and didn't want it online anymore...Well, you'd be kind of screwed without a release.

(I'm not arguing here. I'm just inexperienced and actually curious about how this stuff is treated legally.)

StarlaMeris wrote:
The "just take it down" motto might work for the bulk of your work, but if a shot you did of a model was one of the best shots of your life and she decided 2 years down the line she looked too sexy in it or some such thing and didn't want it online anymore...Well, you'd be kind of screwed without a release.

(I'm not arguing here. I'm just inexperienced and actually curious about how this stuff is treated legally.)

it's happened to me.  really great shot, too.  i even had a release.  i may be different than others but it wasn't worth imposing my will on someone elses sensitivity.  i simply prescribe to the dorritos approach.  i'll make more.

--face reality

Someone said: wrote:
It simply defies logic to be in a public forum disclosing business practices of the profession by which you hope to achieve profits.

I think that's the most intelligent thing I've read in these threads! Lol...

Seriously.

Rossi Photography wrote:

I think that's the most intelligent thing I've read in these threads! Lol...

Seriously.

Is that my new moniker, "someone" ? lol

Tony Culture Photoz wrote:

Is that my new moniker, "someone" ? lol

Sorry about that, Tony. I was just reading through, read that on page two and copy and pasted it, didn't click the quote thingy. Lol...

bang bang photo wrote:
...with the exception of New York, which at one time, and maybe still does, have an exemption for self-promotion when the images are posted within the premises of the studio....

Regards,
Paul

It's there in the NY statutes, Paul, BUT... and it's a big BUT!... the wording seems to apply to a "bricks and mortar" studio [business premises] so there is a lot of doubt that, exactly as it is written, it could be applied directly to, say, an internet portfolio. The practical way around it, and so as to leave no doubt about use, is to get a release for the purpose.

Studio36

oldguysrule wrote:
I hate to bore everyone with facts,

*yawns... growing tired of repeating himself thrice hourly

That's what us old guys do Rich... we sit and we mumble but no one seems to listen... even though between you and I and about 3 or 4 other regular posters we have, say, 500 years+ of REAL experience in this business. LOL

Studio36