Lapis wrote:
Here is where you are confused, Vito....any photography taken in a PUBLIC place is covered under the art rule. So, theoretically if you photographed your model in the middle of the street, you would have recourse. Photography in private places, including hotel rooms, houses, studios, etc. is NOT considered street or editorial photography and is therefore not covered under the 'art' law. I believe that hotel lobbies and nightclubs are considered public, but restaurants aren't. In any case, if the subject is not recognizable, it is okay to sell. So, I guess if you took a model and photoshopped the hell out of her and made it 'digital art', then you could sell it without a release.

ROTFLMAO........ care to cite chapter and verse from where you got that bulls**t?

I would love to see it in writing from a reliable source.

Studio36

StMarc wrote:

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

The Lawyer of the Year Award!!!

Studio36

Luminos wrote:

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".

Actually an analysis of both might prove correct... some legal interpretations hold that if the image is used INSIDE the book it is editorial use [no release required] but if it is used on the COVER of the book it IS commercial use [release required]

This is the kind of stuff that buys lawyers the new Merc.

Studio36

Luminos wrote:
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 live in a house owned by a housing co-op of which I must be a member to live here. The cost of co-op membership was a non-recurring charge of UK£1 [one Pound], in cash [for the life of my residency] A technical requirement, yes, but a critical one to the existence of the contract.

Studio36

Luminos wrote:
If I were a model asked to provide a copy of my driver's license, I'd be highly unlikely to shoot.  You don't need it.

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

Vito wrote:
How many errors?

First, if you're shooting nudes you should have a photo(copy) of the models' drivers license (preferably her/he holding it next to their face). It is not illegal, but it will be less of a headache if you can prove that hot young-looking model in the pigtails and checkered skirt with no top on and no panties on is 18 or over. It would be stupid not to have a copy of ID.

TFP does not REQUIRE a release. You can (and should) have a release but it is not required unless you plan on selling the images (to a third party for publication).

Luminos wrote:
Talk about errors, here.....

You can demand a photocopy of the license if you like, but she'd be crazy to provide it.  You don't need it legally.  And no matter how much headache it saves you, it could cause her great headache.

Secondly, in the US, the legal definition of "publish" includes any public display of photos - the web included.  This hasn't changed in 30 years.  So TFP used for self-promotion is defined as a "commercial use".  It needs a release.

Vito wrote:
Why would a model be crazy to let you copy a license as proof of ID? and why would a photographer in his right mind not require proof of age when shooting nudes?

Luminos wrote:
I didn't say the photographer shouldn't require proof.  But demanding a copy of the driver's license is above and beyond.  Seeing it is fine.  Taking down information opens the model to identity theft.

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.

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

Luminos wrote:
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.

You [Luminos] had better get you head out of your a**!!!! Vito is much more correct but still not up to speed himself. BUT StMark is a lawyer and is right on the money.

The recently passed, so called, the Child Protection and Safety Act of 2006 aka the Adam Walsh Law aka H.R. 4472, DOES require recordkeeping for a whole range of work not previously covered by the 2257 recordkeeping requirements. The received wisdom, so far, is that, once the regulations are published, even mere nudity should provoke the recordkeeping requirement.

The recordkeeping requirements under 2256/2257 will also apply to the whole new section established in Adam Walsh Law called 18 USC c:110 s:2257A and 2257A is intended to catch work, and expand the number of people required to keep records, that was / were previously exempt from recordkeeping.

The most significant change in H.R. 4472 affects entities formerly known as secondary producers, or entities that reuse or recycle content but do not have direct contact with actors or models. Under the previous version of 18 U.S.C. 2257, only entities that directly create work were required to maintain identification records. The Attorney General regulations that attempted to expand the record-keeping requirement to secondary producers were in conflict with this provision and were unenforceable. Now, however, Congress has changed the statutory definition of what constitutes a producer to include all sorts of distributors, website operators, graphic design artists and the like, all of whom must keep records of actors they have likely never met in person.

Also of concern is the fact that H.R. 4472 expands the application of 2257 record-keeping requirements to material that contains only lewd exhibition of the genitals, whereas the previous version of the statute excluded mere nudity. And, perhaps most serious of all, the bill takes effect upon it being signed by the President, meaning there is no grace period for companies that need time to get their records in order.

— Jennifer M. Kinsley, Sirkin Pinales & Schwartz LLP

The photographer should be getting these records even today, before the regulations are published, because the effective date, the date from which records must be maintained, will be the date the Adam Walsh Law was signed into law... in 27 July 2006 even though the controlling regulations will follow at a later date.

What you will need to get and keep, as a photographer, and what the model MUST supply:

* A copy of US OR STATE GOVERNMENT ISSUED identity document or documents, CONTAINING AT THE MINIMUM, a photo of the model; and that are sufficient to identify the model's full legal name; and their date of birth; THE PHOTOGRAPHER MUST RETAIN A HARD OR ELECTRONIC [SCANNED] COPY OF THE ACTUAL DOCUMENT OR DOCUMENTS AS PART OF THE RECORDS.

As a side note... if you are shooting in the US and using a non-US citizen model they MUST have US identity documents. You may NOT rely on their foreign issued documents e.g. a non-US passport or a non-US drivers license.

* A record of the date the work was created e.g. the release or some other record;

* A record of any other names by which the model has EVER been known [aliases; maiden names; nicknames; stage names];

* A linkage between the documents and the created work;

* With every copy of the work(s), when required, a statement of where the records are kept [MUST BE a physical address] and who is the custodian of those records [MUST be a person's name]. There are still other requirements related to the display and publication of that information on the internet, in particular... a statement of compliance, name of the custodian of the records and records location. For the internet and other purposes specific wording must be used in connection with the required notices.

* In many cases where the work is sold, published, or otherwise passed on to a third party FULL AND COMPLETE SETS of the records relating to the work that is sold, published or otherwise passed on will have to be supplied to the receiving party. The supplier will also keep a record of who the work was supplied to or where it is displayed on the internet [first iteration]

"...Congress has attempted to eliminate the so-called 'Sundance' problem by broadening the definition of 'producer' to encompass what the Department of Justice regulations characterized as 'secondary producers.' Therefore,... the following businesses or people will have to maintain the full set of records, cross-referenced with the materials from all their 'primary' producer sources.

This includes: Any business that takes an image of... from another source and digitizes it, reprints it, alters it, uses the image as an illustration, compiles it in another format or does anything other than resell it in the original form received from the seller; websites that scan in [works]; companies that create compilations from other people's catalogs; web designers who manipulate images... for customers; affiliate programs using explicit banners (for the banners themselves only); retailers with websites containing... explicit packaging, and many others.

This is not a comprehensive list. It just represents some examples of secondary producers that people may not have considered.

— Jeffrey Douglas, attorney at law

---------

These recordkeeping requirements are nothing to just poo-pah away - even for an art photographer and even when there is no EXPLICIT sexual content, [e.g. hard core] - a recordkeeping violation ALONE can land you in prison.

AND AS FOR THE MODELS HERE? YOU HAD BETTER GET USED TO GIVING UP ACTUAL COPIES OF YOUR ID - not merely having to show it - EVEN FOR TFwhatever - IF THERE IS NUDITY INVOLVED AND IN SOME CASES EVEN IF THERE ISN'T BUT THE OVERALL NATURE OF THE WORK REQUIRES IT...

AND FOR THE PHOTOGRAPHERS HERE? YOU BETTER BE KEEPING RECORDS AND ID COPIES, IN THE REQUIRED FORMAT AND TO THE REQUIRED EXTENT, EVEN IF THERE IS THE SLIGHTEST DOUBT THAT THEY MAY BE REQUIRED. BETTER TO HAVE THEM AND NOT NEED THEM THAN THE OTHER WAY AROUND.

Note: The above is specifically NOT legal advice merely a general statement of the NEW recordkeeping requirements. This law may ultimately be found unconstitutional in some, or many, respects but until that happens you are bound by it.

Studio36

Yuriy wrote:
I am a big fan of model releases and use them whenever possible or viable, but a model release is not necessary for the terms the OP was specifying.

People keep saying this, but I've yet to see anyone cite an actual law that supports it.

A model participated in what I call a "fish-in-a-barrel" shoot that I attended.  (I call it that because you really have limited ability to direct a model.  There is typically a group of photographers and models.  The models mostly "do their thing," sometimes with a few comments like "let's use this spot here" from the photographer and other photographers might periodically yell out "turn this way" or "eyes" or something along those lines.  Other than that, the photographer tries to position himself for what hopefully will be a shot he might use for something someday.) 

Photographers paid a certain amount for the shoot.  They were told by the organizer that photos could be used for portfolios on MM without needing a release, but that if you wanted anything else you had to negotiate individually with the models. 

One of the models whom I shot contacted me after learning that I posted one of the photos of her on my MM portfolio and told me in no uncertain terms to "take it down" in that she had not signed a release and had not approved my use of her photos.  Although it was my understanding that I paid for the right to use the shots on my MM port, I decided not to argue -- I did not want "bad blood" with any model -- and I took it down. 

Subsequently, I attempted to negotiate a release.  I was told she had signed limited releases (for promotional purposes only) for a certain fee.  Because I was having difficulty with her already, I offered her 50% more than what she said she had charged others.  After the third time I made this offer, she responded saying "okay."  My next message asked where to send the money and the release to be signed.  Two days later, she wrote explaining that she decided she wanted to see more of my pictures of her before she would sign the release. 

At that point, I said to myself "the hell with it.  Nobody is worth this kind of drama and hassle."  I just decided that I wouldn't bother with her or the photos.  Shame, too, because I got some really good ones that I would be very happy to use. 

I'll never work with that model again.  Even if, someday, I were good enough that she came to me and said, "I'll pay you to shoot me," I won't work with her.  She was too temperamental and, frankly, acted like a spoiled baby. 

I'm undecided if I'll ever bother with another "fish-in-a-barrel" shoot.  I did get some good shots from the one I attended.  However, I paid for that opportunity, the models received monetary compensation, and I still got unnecessary grief from a couple of the models.  In addition to being out the money (admittedly not a lot, but money that could be used for other photographic equipment like CF cards), I get the joy of not knowing where I stand legally with respect to using the photos for self-promotion.  I'm not sure paying to take photos followed by emails from the models telling me (in no uncertain terms) to take them off my profile/website is actually worth anything.  (And, again, the models walked away with money in their hands.) 

As has been mentioned, TFP is a barter.  That means each party brings something of value to the table.  One brings his or her body.  The other brings his or her camera.  Both contribute time.  The compensation offered by each to the other is to trade the value of what they've brought.  After I'm authorized to practice law, maybe I'll say (and do) more about this. 

Both parties should be fairly compensated.  In the case I described above, the models were compensated.  I, on the other hand, was not.  I paid, but the models have not signed releases and at least one has told me I cannot use her images. 

Many people have stated here that you don't need a release if you're using the photos for promotional purposes only.  No one that I've seen yet has posted any law supporting that idea.  I suppose the cold, harsh reality of it is that you could use the photos and, if the model doesn't like it, she can complain to you, threaten you and, if she has enough money for that, sue you.  (Working in a law office, I know we're not going to take a case for a model to sue someone to make them stop using photos, unless the model has quite a bit of money -- because that's what it's going to take to hire us.  For some reason, we don't have a TFL (time for law) concept and the models have nothing else we would want anyway.) 

Frankly, I'd rather not create bad blood with models -- or anyone, for that matter. 

On the other hand, from my experiences since I joined MM, I think I'm going to go back to offering to trade with "normal people".  They'll happily sign even the most general release in exchange for free photos of themselves and their families.  And they're very cooperative during shoots, because they figure the photographer is the pro -- unlike some models who apparently think they know as much about photography, or more, than the photographer.  (Note that I did not say "all"; I said "some."  I've met a lot of very, very nice models.  The comments in this post were not about them.) 

-- rick

P.S. I'd be very happy to see anyone actually cite a law -- especially if it's applicable in California -- about using photos without a signed release.  When I get time, I'll be researching that issue myself.  But if someone already has that info, I'd love to hear it.

So Shoot Me! wrote:
Frankly, I'd rather not create bad blood with models -- or anyone, for that matter.  -- rick

If that is a true reflection of your personality... you aren't going to make a very good lawyer either.

Better start drinking a lot of milk and building up that hard shell a bit.

Studio36

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

The Federal statute requiring proof of age to be maintained is VERY vague as to the types of images requiring it. Of course clearly the law is directed at kiddy porm  Before they enacted this legislation in prosecution it was a battle of the experts (doctors) in their opinions of the "child's/adult's" age.  Congress fixed that by saying okay, require everyone to maintain proof of age for adult images and make it just as severe as kiddy porn if they don't.

If you're shooting any form of nudity the SAFEST thing to do is maintain that proof.  Remember, what's considered "hardcore" is going to be decided ultimately by the community standard in whatever jurisdiction decides to prosecute you.  What may be considered artistic expression in LA might be viewed very differently in Cleveland. 

It's a VERY simple thing to do.  When u first bust that lens cap ask for ID and snap a shot of it.  Better to get it then than to try to track down the model later and get them to cooperate and help you when your ass is in a crack!

To thine own ass be true!

male-portfolios wrote:
To thine own ass be true!

And hold on to it with both hands. LOL

Studio36

D. Brian Nelson wrote:
"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.

Which part of the law says "self-promotion" does not include "advertising"?  Seriously.  I'm not making fun.  I'm asking, because I don't know.  Self-promotion sounds like advertising to me, but as a recent law school graduate, I know that doesn't mean anything and so that's why I'm asking. 

Based on all the comments posted on this and other MM forums, wherein non-lawyers pontificate about the law, I'm really looking forward to getting my license to practice (hopefully later this year or early next year).  I think I'm going to start researching laws that might pertain to us, as photographers, at least in California.  So far, I have not done that; I work in criminal defense. 

This much I know from experience -- not from studying law -- there's a difference between what you can do without getting into legal trouble, and what the law protects.  A lot of people here talk about having done certain things for their entire career without getting in trouble.  So they think they're right.  And they might even actually be right.  But just because they didn't get into legal trouble doesn't mean they are right about what the law says.  I mean, seriously, you can kill someone, and if no one ever finds out, you're not going to get into legal trouble.  That doesn't mean that you can legally kill people.  You can rear-end someone at a stop sign and not get sued.  That doesn't mean the law protects you when you negligently rear-end people.  It just means you got lucky.  It might mean the person you damaged did not have the resources, or the desire, to sue you. 

Suing people costs money.  It takes time.  It creates hassles not just for the person being sued, but for the person who does the suing.  Some people will suffer with being damaged, or deprived of something, or losing rights -- all without trying to go to court.  That doesn't mean the law protects you.  It might just mean you got away with something that normally the law would not let you get away with.

I do not know what the law is regarding model releases in my state right now.  (I'm going to find out, but even when I do, I'm not going to tell anyone here until I get a license to practice law.) 

What I do know is that a lot of people here keep saying what the law is, without actually citing anything that says that's what the law is.  Some people talk about this or that case, but unless they're lawyers, I'm not sure they know what the case really means and if it does or does not protect in all cases.  And, also, even most of these people are talking about (what they think) the law is where they live.  Doesn't help me! 

I sure do appreciate the posts here by actual lawyers.  Wish there were more of them.  And I wish one of them would say something about California law! 

Until then, for me, anyway, I guess I'm down to either 1) I can take my chances and hope the model doesn't have enough money to bother suing me or 2) I can get a release.

YMMV.  Again, I'm not (yet) a lawyer and I don't (yet) know the law.  So please don't think I'm trying to give any of you legal advice!  I asking, not giving! 

-- rick

If that is a true reflection of your personality... you aren't going to make a very good lawyer either.

Better start drinking a lot of milk and building up that hard shell a bit.

Studio36

I believe I meant with respect to photography.  My bad.  I should have been more specific.   

I have done plenty well handling myself in the courtroom (under the Practical Training for Law Students program, I've actually done "lawyerly things," including arguing, questioning witnesses, voir dire of jurors, etc., in both Superior and Appellate District courts).  I actually even sometimes win.  (If you've ever tried to defend anyone in a United States' court, where you're guilty until proven innocent, you know that's pretty significant. ) 

-- rick

So Shoot Me! wrote:
I believe I meant with respect to photography.  My bad.  I should have been more specific.   

I have done plenty well handling myself in the courtroom (under the Practical Training for Law Students program, I've actually done "lawyerly things," including arguing, questioning witnesses, voir dire of jurors, etc., in both Superior and Appellate District courts).  I actually even sometimes win.  (If you've ever tried to defend anyone in a United States' court, where you're guilty until proven innocent, you know that's pretty significant. ) 

-- rick

No offence meant Rick... it was only how you used that to segue between practicing photography and practicing law.

Studio36

John Jebbia wrote:
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.

I got one just the other day, here on MM. She sent me a message - I am pretty sure there are very few photographers listed in Melbourne Australia here. Said she was coming out from overseas for a week or two, had looked at my work and liked it. Perhaps we could meet up and do a shoot?

"Further pictures on my profile page". Picture on her avatar looked good, so I popped upon another tab to her profile.

Then I flipped back to read any last lines in her message. Aha.

"My usual expected compensation is $175/hr."

I took a pass. Not because I'm averse to paying modelling. But as I was explaining, the way I see it:

A photographer has an idea or a concept, or a desire to expand portfolio, and finds a model. He pays her for her time in helping him realise this.

A model has an idea or a concept, or a desire to expand portfolio, and finds a photographer. She pays him for his time in helping her realise this.

In between is the middle ground of TFP, etc, where a "compromise" can be negotiated.

There's something odd about someone coming to me and saying "I like your work," (assuming of course it wasn't just a blanket spam) "let's do something together, btw you'll be paying for this."

An analogous example. You're my friend, and you're broke. I suggest dinner. You say you'd like to but you're broke. Fine, then I can make a choice, "Sure, I'll pay for you".

It's generally considered bad taste to say "How about dinner?" "That sounds great" "Excellent, but I'm broke, you'll have to pay."

Vito wrote:
You should have added to your "release":

"It is the models responsibility to update the photographer of any address changes for purposes of royalty payments. If a royalty payment is returned as undeliverable (because the model has moved) and has not supplied a new address, that and any future payments are forfiet and that part of this agreement is terminated. This will also apply if the check is not cashed within 90 days, with the assumption that the payment did not reach the model and was either destroyed or forwarded to the dead letter department of the U.S. Postal Services. If the model contacts the photographer within one year of sent payment, this part of the agreement may be re-instated going forward only (any payments that were undeliverable remain forfeit)."

Explain that it is not your job to play detective and hunt down models just for the privalege of giving them money.

I like that idea - but since I refuse to enter into such an arrangement as that anymore, it's too late to do me any good. But it's excellent info for any newbies just learning about release forms.

BTW, I'm not sure I would even put in the part about "reinstating" the agreement if contacted within one year. I could see a model potentially deciding she only has to contact me once a year, at some time of her discretion, in order to keep reinstating the agreement.

I'd have to always have the cash tied up throughout the year to pay her royalties - cash I would not be able to use otherwise in case she pops up out of the blue wanting her money for a trip to Tahiti next week. I'd have no problem paying for royalties were I to become involved in that - BUT I would want to be able to pay it out in a timely manner.

Plus, what happens if I change addresses? I could see a model arguing that I should have notified her of the address change so she could do her annual "check in" to see about royalties. But if I can't find her, how am I going to inform her of an address change?

Nah, still too much of a hassle for me. I'd rather pass on the whole royalty thing and keep getting a standard release signed.

Luminos wrote:
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.

It's not thin at ALL.  If the model doesn't show up with a notarized release stating she's over 18, I get a picture of her ID with her face & the release for my records (with a notarized release, the notary has examined the ID).
Not only does this protect me from future retroactive 2257 type laws, but it protects me from ALLEGATIONS of child porn that could cost me a lot of time & $ money to fight.  I might shoot a model once & never hear from her again, and if 5 years down the road someone makes a complaint against me there is very little to stop some overzealous law enforecement agency from showing up & saying "PROVE every one of your nudes is someone 18+."
You say you're more than on the side of the law, I can't understand why you wouldn't want me respecting it & being able to prove I've done so.
Spending the time & money necessary for a shoot just to get a model's DL info for ID theft is kind of ridiculous.  In this state, for less $ and time I could just copy her license plate &, put in a request, pay a few $, and have the state SEND it to me.

I understand Lapis' and some of the other models' issues here, but Vegas said he offered a release with restricted usage spelled out so he couldn't sell the images for profit without renegotiating.  That should address their concerns about the photographer profiting off them on a TFP.
I fully understand him wanting to be sure he's not going to get dinged for posting them here or on a similar site (based on, if nothing else, a model changing her mind and taking legal action rather than notifying him) and having proof of the model's age.  I can't understand why a model, allowing for the restriction of use clause, would have a aproblem with that.

So Shoot Me! wrote:
...(a lot was said)...

I understand where you are coming from and what you mean but as I'm sure you are well aware of what I am going to say you must also consider why I didn't want to say it at all on a public forum but your response has forced my hand in a way...

I use my tests or tfps in a print portfolio (before I lost it a couple of weeks ago). I know damn well that I don't need a release for that.
If a model wanted a photo removed from a website for a valid reason, I would probably remove it so as not to be hassled by said model.

But let's look at the big picture here... If you work in law I'm sure you know that if a judge sees tfps as being an uneven trade where you received a blanket release in exchange for the rights to use the models likeness (for whatever uses) then the judge can also invalidate the release for trial. It all comes down to compensation, if the judge considers the compensation to be unjust then most of your case (with your blanket model release) goes right out the window.


The wisest photographers know that a model release that is not properly used is useless and offers no protection on a court level. It may help when you are bickering but if it turns to legislation you may be shit out of luck.

So with that being said...
1. A model release is not always necessary.
2. An improperly executed model release is useless in court.
3. This argument has turned in an awful direction with too much bullshit on either side

Photography as a business, just like any other business, is about managing risk. Sometimes not having a model releases is a liability while sometimes having a model release is a false sense of security. Either way you slice it, if you don't do your homework and/or have a good attorney on retainer you may be facing unnecessary risk.

(I'm tired at 2 in the morning, so some of the above may have poor sentence structure and therefore be a little difficult to understand. If that is the case, let me know so I can rephrase when I am less tired and cranky.)

EDIT: Good Night. :-)

Yuriy wrote:
But let's look at the big picture here... If you work in law I'm sure you know that if a judge sees tfps as being an uneven trade where you received a blanket release in exchange for the rights to use the models likeness (for whatever uses) then the judge can also invalidate the release for trial. It all comes down to compensation, if the judge considers the compensation to be unjust then most of your case (with your blanket model release) goes right out the window.

You make the mistake of believing that TFP is somehow an inherently uneven deal. It is not... it can be but it often isn't the model taking it in the neck, either... and that has been one of the arguments throughout this and other threads.

Sampler: Model sues photographer claiming that there was inequity and unevenness in the agreement for her to do TFP in exchange for a release. Though no money changed hands, Model did get her photographs and Photographer did get her services... however, because she signed a release and sees that as having [in her eyes] some significant excess value... she demands additional compensation from Photographer

MODEL ON THE WITNESS STAND:

Lawyer: Ms Model what are your normal rates?

Model: I normally charge $80.00 per hour

Lawyer: And did you pose for Mr. Photographer for 4 hours? And did you actually charge and get paid the amount of 4 times $80.00 or a total of $320.00?

Model: Yes I did pose for Mr. Photographer for 4 hours.

Lawyer: Did you get paid?

Model: I didn't charge Mr. Photographer a money amount because it was a Time for Prints arrangement. It was a barter arrangement. I posed and he gave me prints... [a CD... or whatever...] in exchange for my time and the rights to use them for my own self promotion as a model.

Lawyer: But the monetary value of your services would have been $320 had you charged him and actually been paid in money?

Model: Yes.

Lawyer: Did you receive the things, other than money, that were agreed in exchange for you time?

Model: Yes.

---------

PHOTOGRAPHER ON THE WITNESS STAND:

Lawyer: Mr. Photographer do you normally charge for creating photographs for your clients?

Photographer: Yes

Lawyer: And how much do you charge.

Photographer: I have a starting rate for my services of $800.00 a day. Beyond that there are normally additional charges for editing and finishing the work to a high standard.

Lawyer: And what might be a reasonable all inclusive cost to a client for a full day of work including the editing and finishing?

Photographer: A reasonable estimate of the total cost for a day's work might be on the order of $1200.00.

Lawyer: So in Ms. Model's case your would have worked a half day - four hours - is that right.

Photographer: Yes.

Lawyer: And the value of that work then would have been closer to $600.00 in this case. Is that right?

Photographer: Yes.

Lawyer: And did Ms. Model pay you for that work?

Photographer: Only with her time. That is what was agreed.

Lawyer: And did you deliver the work as promised to Ms. Model in exchange for her time?

Photographer: Yes.

Lawyer: And did Ms Model also sign a release for you?

Photographer: Yes.

Lawyer: And does that release have any monetary value?

Photographer: Only if I sell one or more of her images for some use by a third party and the release is required to establish my rights to exploit Ms Model's likeness.

Lawyer: And have you?

Photographer: No... I only use those images for my portfolio and on my website to promote my business.

Lawyer: So one might conclude that Ms Model contributed $320 of value in her time; and you contributed $600 in your time... is that correct?

Photographer: Yes.

Lawyer: And that, as you delivered the agreed work to Ms Model, she received work done by you to the value of $600.00

Photographer: Yes

Lawyer: For which she contributed the equivalent of $320 of her time and singed a release so that you could recover, if you could at all, the additional cost that you incurred?

Photographer: Yes.

Lawyer: But, as of now you have not recovered any of that extra cost because you haven't sold any of her pictures?

Photographer: That is correct.

---------

Judge: "Case dismissed!"

Studio36

Stevefl wrote:
Tfp, tfcd, The model is getting free pictures for their time as payment. If you cannot use the pictures, you have gotten nothing from the shoot for yourself.
Steve

There you make the same mistake as Yuriy and others... once again for the peanut gallery... THE MODEL IS NOT GETTING FREE PICTURES she is getting pictures that have REAL VALUE in REAL DOLLARS AND CENTS TERMS

By saying the model gets free pictures in the first breath and then complaining that you time is valuable in the second you neatly contradict yourself. It's one, or the other... it can't be both.

Studio36

Yuriy wrote:

I understand where you are coming from and what you mean but as I'm sure you are well aware of what I am going to say you must also consider why I didn't want to say it at all on a public forum but your response has forced my hand in a way...

I use my tests or tfps in a print portfolio (before I lost it a couple of weeks ago). I know damn well that I don't need a release for that.
If a model wanted a photo removed from a website for a valid reason, I would probably remove it so as not to be hassled by said model.

But let's look at the big picture here... If you work in law I'm sure you know that if a judge sees tfps as being an uneven trade where you received a blanket release in exchange for the rights to use the models likeness (for whatever uses) then the judge can also invalidate the release for trial. It all comes down to compensation, if the judge considers the compensation to be unjust then most of your case (with your blanket model release) goes right out the window.


The wisest photographers know that a model release that is not properly used is useless and offers no protection on a court level. It may help when you are bickering but if it turns to legislation you may be shit out of luck.

So with that being said...
1. A model release is not always necessary.
2. An improperly executed model release is useless in court.
3. This argument has turned in an awful direction with too much bullshit on either side

Photography as a business, just like any other business, is about managing risk. Sometimes not having a model releases is a liability while sometimes having a model release is a false sense of security. Either way you slice it, if you don't do your homework and/or have a good attorney on retainer you may be facing unnecessary risk.

(I'm tired at 2 in the morning, so some of the above may have poor sentence structure and therefore be a little difficult to understand. If that is the case, let me know so I can rephrase when I am less tired and cranky.)

EDIT: Good Night. :-)

A signed release, the conditions of which all parties agreed to, would be evidence of intent. If the model agreed to TFP conditions which she later felt were "unjust", too bad.

If I buy a car, knowing all of the problems with the vehicle, and then a month later decide I paid way too much and that I got a bad deal - the judge is going say too bad, I knew what I was getting into and I should use better judgement in the future before signing papers. Same with the signed release.

I am curious though, based on your authoritative response, I have 3 questions:

Question #1: Are you a lawyer?
Question #2: Have you a specific case I can check into wherein a release form between a model and a photographer was invalidated because the judge felt the terms were "unjust" to the model?
Question #3: Is this case applicable throughout the country in all 50 states?

Photography as a business, just like any other business, is about managing risk. Sometimes not having a model releases is a liability while sometimes having a model release is a false sense of security. Either way you slice it, if you don't do your homework and/or have a good attorney on retainer you may be facing unnecessary risk.

What I was referring to was that in some circumstances a model release may not be sufficient while in others it may not be necessary. It is up to each photographer to judge.
I also wrote in my original response that I do try to get model releases as much as possible but sometimes (depending on circumstance) I choose not to.

Southern Image Photo wrote:
Question #1: Are you a lawyer?
Question #2: Have you a specific case I can check into wherein a release form between a model and a photographer was invalidated because the judge felt the terms were "unjust" to the model?
Question #3: Is this case applicable throughout the country in all 50 states?

1. I am not a lawyer, although I do study business and intellectual property law well enough to not have to call my attorney for every question I have (it’s also a former hobby of mine before I ever became a photographer).
I also know (although I have not yet stated) that laws can be different everywhere so there are places where I am spot on while in others I will be dead wrong.
This is why I usually refrain from going into specifics and speak very broadly.

2. I do not have any cases that I can cite. I do not study case law but I do partake in the study of contract law (a hobby). Contracts have been invalidated in the past (before you ask, no, I cannot provide you with specific cases) for various reasons one of which has been compensation.

3. If I did provide you with a case I am more than sure it wouldn’t be applicable in all 50 states.

Yuriy wrote:
studios6uk,

I agree with you, most of the times that is how it will go.
However, I was speaking about the variables; as you know every situation, jurisdiction, and judge are different and most of the time such a case would be thrown out of a court but it is also possible that with a few circumstances the case could be seen and even, although unlikely, won.

Which is why I went on to say:

What I was referring to was that in some circumstances a model release may not be sufficient while in others it may not be necessary. It is up to each photographer to judge.
I also wrote in my original response that I do try to get model releases as much as possible but sometimes (depending on circumstance) I choose not to.

One of the factors that can invalidate a release is the issue of specifically stated, or not, money compensation. That will vary from state to state based in their contract law. One of the lawyers here, St Mark or Gunfitr, has discussed in the past some particular state(s) that require compensation to be in money and explicitly stated on the release/contract documents. Other states don't have that requirement. One couldn't go wrong in any state, though, by including it.

Studio36

RED Photographic wrote:
The problem I have when these discussions get bogged down in the legal side of things, is that the cost of litigation will invariably eat away (and more) any profits you might or might not make from the photographs.

No matter how certain you are that the law is on your side, or how hard done by you feel, you should always just walk away and put it down to experience.  It isn't worth the trouble.

Oh, do I agree with you in spades. Something I have pointed out before on [my] releases and other contract documents is that, after paying a lawyer to draft them to an acceptable legal standard, as soon as a model starts demanding changes they can f**k off. It's not going to happen.

Studio36

John Jebbia wrote:

Are we making mince meat here? Getting free photos could easily constitute compensation. Especially when under normal circumstances it might have cost her a couple hundred dollars at least.

Vegas. Your model was a cun.... a bitc.. ahh nevermind.

Thank you! The photos ARE a form of compensation. I'm reading so many comments of photos vs. compensation and thinking, "wow I guess the photos themselves are worthless."

If a model doesn't sign a release (whatever the form of compensation), there is no shoot.

Yuriy wrote:
I do not study case law but I do partake in the study of contract law (a hobby).

I want to party with you dude lol.

Vegas Alien wrote:
I booked a model last week for a shoot tomorrow night. We spoke and discussed ideas, terms and details. I called her just now to confirm.  She asks if I have a release to sign and I said, "yes." She says she does not sign releases for TFP/CD, only for paid work, and can I offer her any compensation.

I asked how either of us would be able to use the images without a signed release, and she says, "for self-promotion by both of us." I told her that that is precisely what my release states, self-promotional and non-commercial usage by both parties. It is the same usage she describes but is signed and also has a place for her date of birth, which we will need for nudes in addition to proof of ID.

She says, "Sorry, I'll have to pass." I told her it would have been nice for her to bring up this "policy" when we first spoke, so I could have booked my studio in place of she and I shooting. Her: "OK, thanks."

Am I the unusual one here? I prefer something more than a verbal agreement for usage of images.

Sounds like the fundamental problem is that the model has her terms mixed up. She's talking about 'testing', while you are talking about TFP. Both of you would be correct basically. She just didn't use the right term, or apparently does not understand the distinction.

John

SLE Photography wrote:
You say you're more than on the side of the law, I can't understand why you wouldn't want me respecting it & being able to prove I've done so.
Spending the time & money necessary for a shoot just to get a model's DL info for ID theft is kind of ridiculous.  In this state, for less $ and time I could just copy her license plate &, put in a request, pay a few $, and have the state SEND it to me.

The orginal post was started regarding TFP, and did not mention any sexual acts being photographed.  Overbroadening the discussion to include harder shots and paid work has seriously confused both the discussion and distorted my comments and those of others.

If you are shooting on the borderline, then by all means demand what you want.  You can demand anything - it is what you can get that is important.

But if I were a model doing a TFP shoot outside current definitions of required record keeping, and a photographer demanded copies of my license, the shoot would be over.  And few REASONABLE people would blame the model.

Xiss wrote:
I think you should have stated that you need a release prior to the shoot.

And photographers, BE CAREFUL because you do not have the legal right to post images on the web without a release, even if it is non-commercial. Although many people do this and nothing happens, it can be grounds for a lawsuit if there are damages to speak of.

Always ask for a release if there is doubt about the nature of the pictures and where you want to post them.

and your law degree is from where?