Cherrystone wrote:
That is utter bullshit.

In the legal industry, there is opinion on both sides of the fence. Some experts in the field suggest contract mode, some experts in the field suggest otherwise and make some very valid arguments against a release being a contract. Key word here....experts in that field. Not a corp atty....not a general atty...not a real estate atty....not a divorce atty.

Thing is about attorneys in my experience, is that they are loathe to admit they don't know something. But they are NOT loathe to accept payment from anyone. Would you go to an attorney who specializes in real estate when getting a divorce?

You've been speaking of releases that you've gotten from other entities. Do you think those entities have YOUR best interests at heart? Hell no, they have their best interests at heart.

Have you ever consulted with an attorney who specializes in IP/copyright law personally, and had them draw up agreements that specifically have your best interests at heart, and paid them for their services?

After doing a lot of research, consulting with 3 IP/copyright attorneys over the years, I became part of the camp who feels that releases are best served that are not a contract. So those are who I paid.

To suggest one of those camps is wrong, is ludicrous.

The release was for dreamstime, fotalia, stockfresh and whatever other agency I had work placed with. The work as such is not mine. I was paid to develop stock for a media company.

The releases were developed and approved by the legal departments at such companies as Getty, Corbis, Dreamstime.

Stock agency releases. As such I don't own the images -- they belong to the company that I was paid to shoot them for.

Another Italian Guy wrote:
Haha - the drama!

In the UK, we don't need a release at all, even for commercial use.

That means every shot I take is mine and mine alone, no questions asked, nothing to sign - I just own it all!

I'm amazed anybody ever works with me .

That's a bit smug! Next you'll be bragging that over here we don't have to worry about people turning up with guns in their lady-bags!

:-P

Jupiter Red  wrote:
Something I'm beginning to notice when reading a photogs profile :
* A full model release is required, no exceptions, signed before the shoot starts.

The thought of that makes me nervous,
I understand you should never shoot with someone unless you feel comfortable, but its possible for miscommunication/the shoot to fall apart
So, you go to shoot
Everything seems fine at first,
An argument/whatever happens
The shoot takes a turn for the worst
We (model) storms out
Photog has unlimited use of photos/can do whatever the hell he/she wants.
So like...?

This caused me to add the clause to my profile
That model release must be emailed BEFORE the shoot,
So that I can read it fully, and make sure no funny biz

Too many times I've gotten to a shoot, and had one presented to me, outta nowhere, then have the photog breathing down my neck as I try to understand the legal jargon.

So photogs, why?
Models, do ya find it strange?

P.s An interesting thing I've noted, I've seen it posted almost always on nude photogs profiles. Is curious..

In the real world agency models sign paperwork at the end of the shoot and the client signs the voucher.

Things generally work differently here on MM as there is no agency guaranteeing a release will be signed.

You are correct in that it is rude to spring paperwork on a model at the time of the shoot.  There should be communication prior to the shoot such that everyone knows what to expect.  The model should be provided with an advance copy of any paperwork they are expected to sign.  Everyone should go into the shoot knowing when and what will be signed, what each party is expected to provide, who will be paid (and how much), where/how the images may be used, and what sorts of images will be taken.

I am not an attorney, but to my knowledge, there is no legal issue with signing a traditional release prior to the shoot.   Technically, the model release does not apply to the images (which don't exist prior to the shoot), the model release is permission to use the model's likeness.  As the model exists prior to the shoot, it makes sense to give said permission, even though no images have been taken.


In the MM world, the timing of the signing is generally based on the experiences of the parties involved.  Experienced photographers who have been burned by models refusing to sign a release, tend to insist on the release being signed prior to the shoot.

Newbie models who think they can exercise complete control over photos tend to insist on signing the release at the end.  They are also under the impression that they can release certain photos.   

Care should be taken when attempting to limit which photos by way of a release.  As the release is about the model's likeness, and not particular photos, it is hard to do this in a release.  In the real world, restrictions on what sorts of photos can be used, would be in a contract.   If you do insist on putting these restrictions into a release, please have the document crafted by an attorney, not a photographer.


As to understanding the legal jargon in a release, this should be easy, unless someone has tried to "improve" the release by grafting on contract terms and/or a usage license.  Generally a release is permission to use the model's likeness for certain purposes for a certain period of time.  Many releases are "full unrestricted" release, which allow use of the image for any purpose for all time.

Most releases allow the photographer to edit/distort the image.  Generally, this means they can smooth skin, remove a mole, or make the model fatter/thinner.  Some releases also allow the image to be used in a way that gives a false impression of the model.  Perhaps the image will be used in a context that implies the model has an STD?


New models tend to be nervous.  I once agreed to shoot a new model TFP in exchange for a full commercial release.  As usual, I send the model the release ahead of time.  She got back to me with the concern that the release allowed me to do whatever I wanted with the images.  I could even "photoshop her head onto someone else's naked body."  I told her she was correct, that the release would allow me to do that, but why on earth would I want to?  The only time I am aware of people doing this is when the head belongs to a celebrity, and generally no one gets a release.   She thought about it a minute, and signed the release.

My advice to models is that if there are certain types of images they don't want out in the world, then don't allow those images to be taken.

Michael Fryd wrote:
In the MM world, the timing of the signing is generally based on the experiences of the parties involved.  Experienced photographers who have been burned by models refusing to sign a release, tend to insist on the release being signed prior to the shoot.

Newbie models who think they can exercise complete control over photos tend to insist on signing the release at the end.  They are also under the impression that they can release certain photos.   

As to understanding the legal jargon in a release, this should be easy, unless someone has tried to "improve" the release by grafting on contract terms and/or a usage license.  Generally a release is permission to use the model's likeness for certain purposes for a certain period of time.  Many releases are "full unrestricted" release, which allow use of the image for any purpose for all time.

Most releases allow the photographer to edit/distort the image.  Generally, this means they can smooth skin, remove a mole, or make the model fatter/thinner.

My advice to models is that if there are certain types of images they don't want out in the world, then don't allow those images to be taken.

+1

Michael Fryd wrote:
My advice to models is that if there are certain types of images they don't want out in the world, then don't allow those images to be taken.

Is that advice then followed by "always get a release signed first" when you're talking to a photographer?

In the real real world, not the michael fryd world, there can be all kinds of things added to a realse, which could include the number of photos, timeline, type of use, etc. That's how agencies make their money.




Andrew Thomas Evans
www.andrewthomasevans.com

Michael Fryd wrote:
In the real world agency models sign paperwork at the end of the shoot and the client signs the voucher.

This.

When I am using models on a paying job that are being paid for the job - sign the release when they get their payment (generally at wrap).

It's pretty simple.

Andrew Thomas Evans wrote:

Is that advice then followed by "always get a release signed first" when you're talking to a photographer?

In the real real world, not the michael fryd world, there can be all kinds of things added to a realse, which could include the number of photos, timeline, type of use, etc. That's how agencies make their money.




Andrew Thomas Evans
www.andrewthomasevans.com

No.

My point was that if there are certain types of images that you don't want shown, don't allow them to be taken.

For instance, suppose a model doesn't want to see "spread leg shots of her privates" published on the web.  My advice is to not pose for such shots, rather than posing for them and relying on language in a release to keep them private.

You are correct in that in the real world, an agency negotiated release generally has limitations on how, when and where the model's likeness can be used.   In such a situation, the release is generally signed by the agency on behalf of the model.  The model generally would not see, or sign the release.   In these situations, the model generally would not receive payment the day of the shoot.  Payment may not come to the model for weeks.

The OP asked about situations where the model is negotiating directly with the photographer.  When it comes to a typical MM model, things do work differently.   In these situations there is no agency reputation on the line to guarantee the paperwork will be signed.   In a typical MM arrangement one or both of the parties may not have a proven track record of reliability.  In these situations things work differently.  A photographer may very well insist on a release being signed prior to the shoot.

As to the scope of the release, this may also work differently on MM.  In the real world, most shoots have a particular purpose in mind.  When I shoot images for a swimsuit manufacture's catalog, I know, and the model's agency knows, where and how the images will be used.

In a typical MM situation, the photographer may not know ahead of time exactly how and where the images will be used.   If it is a TFP situation, and depending on the skill levels of the parties involved, it may be a fair trade for the model to provide a full release in exchange for limited usage rights.

The bottom line is that MM is not the same as the commercial modeling world.  it is not surprising that things here work a little differently.

KungPaoChic wrote:
If it is not a contract it is not legally binding so your release would be worthless if anyone actually challenged the validity of your release in a court of law.

Cherrystone wrote:
That is utter bullshit.

In the legal industry, there is opinion on both sides of the fence. Some experts in the field suggest contract mode, some experts in the field suggest otherwise and make some very valid arguments against a release being a contract. Key word here....experts in that field. Not a corp atty....not a general atty...not a real estate atty....not a divorce atty.

Thing is about attorneys in my experience, is that they are loathe to admit they don't know something. But they are NOT loathe to accept payment from anyone. Would you go to an attorney who specializes in real estate when getting a divorce?

You've been speaking of releases that you've gotten from other entities. Do you think those entities have YOUR best interests at heart? Hell no, they have their best interests at heart.

Have you ever consulted with an attorney who specializes in IP/copyright law personally, and had them draw up agreements that specifically have your best interests at heart, and paid them for their services?

After doing a lot of research, consulting with 3 IP/copyright attorneys over the years, I became part of the camp who feels that releases are best served that are not a contract. So those are who I paid.

To suggest one of those camps is wrong, is ludicrous.

Maybe you should specify exactly what YOU have in your mind about the definition of "a contract", because it appears that what you are thinking is "a contract" is not the same thing as what other people are calling a "contract".

The following is the definition of contract from Merriam Webster, you know, the dictionary people.

http://www.merriam-webster.com/dictionary/contract

1 con·tract   noun \ˈkän-ˌtrakt\

: a legal agreement between people, companies, etc.

: a document on which the words of a contract are written

: an agreement to kill a person for money

Full Definition of CONTRACT
1
a :  a binding agreement between two or more persons or parties; especially :  one legally enforceable
b :  a business arrangement for the supply of goods or services at a fixed price <make parts on contract>
c :  the act of marriage or an agreement to marry
2
:  a document describing the terms of a contract


Can you please explain to us how a model release is NOT a contract, or why anyone (in their right mind) would want a model release that is not a contract, when the whole purpose of a model release IS being a binding legally enforceable agreement between two parties.

Put another way, why would you waste anyone's time having them sign a piece of paper that you call a Model Release if it is NOT a legally binding agreement?

Who, in their right mind, would shop lawyers trying to find and pay one to create model releases that are not binding, legally enforceable agreements? That makes no damn sense at all.

I hope you just have a narrow, specific type of shoot related document in your mind as being "a contract", and are so obsessed with that one type of agreement you have in mind that you're may have totally missed that the word contract correctly applies to many more things.

(Note: Neither I, nor KungPaoChic have suggested that a Model Release should contain more than the release, such as being bastardized into a "Shoot Contract" or a hybrid document, JUST that a Model Release is and should be a contract, because the purpose of a Model Release is for it to be a written, legally binding agreement, aka, a contract.   

I'm not sure why you find that so difficult to understand.)

In other words, you keep using that word, but I don't think it means what you think it means.

Michael Fryd wrote:
Technically, the model release does not apply to the images (which don't exist prior to the shoot), the model release is permission to use the model's likeness.

I understand your point, but I am not sure that I can agree with that statement.   The purpose of a model release is to grant permission to use the model's likeness, typically for commercial purposes.  In some situations you may be wanting to overcome the right to privacy.  In others your goal may be false light.  The release can either take the form of "consent."  In that case it will be a form that explicitly gives permission. It can also be a waiver of the right to sue.  Put another way, the model promises not to sue you for using her likeness.

As for what it covers though, that is very much grey.  There is nothing, for example, that prevents the model from signing a release years after an image was taken.  You can obtain consent at any time.   Likewise, most releases are written so broadly that it is never clear exactly what is covered.   It is really a coin toss, in some situations, as to how a judge will rule.

Let's say, for example, that you shoot ten photos today of a model riding a bicycle for an advertisement.  For that, the model is paid and signs a release.  The intent is to put her into an ad.  A week later the model rides to your office to talk about another shoot and shows up on her bicycle.  You grab a headshot of her riding on the bike which ends up as one of three images in the ad. 

Well written releases and vouchers, used in the mainstream, typically describe the images to be used, the dates they were taken and their specific usage.  The releases we use are so broad you never know for sure, how broadly they will be interpreted.

I can see a number of ways that a judge could rule in the scenario I presented.  The judge could find that consent was granted for the use of the likeness, therefore there was no foul using the later headshot.  I could see a judge ruling that the release was ambiguous as to time and specific images, therefore, the model's interpretation would be the valid one.  In that case, a judge could rule that the use of the later image might not have been covered by the release.  I could see a judge rule that the consent covered the later image but find "unjust enrichment."   By that I am suggesting that the judge could say, "you have consent for the use of her likeness, but you didn't pay her for those images yet."

I can see a situation where photos taken last month and photos taken this month were used with only a single release signed.  Again, there are variations as to how a court can rule.  In many years and with much experience, I find that judges are totally unpredictable.  Things that you would expect to be a slam dunk often turn out differently than you would expect.

So, I agree with the basic premise of your total argument.  That one statement, however, to me seems to be a little bit less black and white.  Overall though, I think you have made a great contribution to the thread.  Thanks for participating.

DougBPhoto wrote:

Maybe you should specify exactly what YOU have in your mind about the definition of "a contract", because it appears that what you are thinking is "a contract" is not the same thing as what other people are calling a "contract".

The following is the definition of contract from Merriam Webster, you know, the dictionary people.

http://www.merriam-webster.com/dictionary/contract

1 con·tract   noun \ˈkän-ˌtrakt\

: a legal agreement between people, companies, etc.

: a document on which the words of a contract are written

: an agreement to kill a person for money

Full Definition of CONTRACT
1
a :  a binding agreement between two or more persons or parties; especially :  one legally enforceable
b :  a business arrangement for the supply of goods or services at a fixed price <make parts on contract>
c :  the act of marriage or an agreement to marry
2
:  a document describing the terms of a contract


Can you please explain to us how a model release is NOT a contract, or why anyone (in their right mind) would want a model release that is not a contract, when the whole purpose of a model release IS being a binding legally enforceable agreement between two parties.

Put another way, why would you waste anyone's time having them sign a piece of paper that you call a Model Release if it is NOT a legally binding agreement?

Who, in their right mind, would shop lawyers trying to find and pay one to create model releases that are not binding, legally enforceable agreements? That makes no damn sense at all.

I hope you just have a narrow, specific type of shoot related document in your mind as being "a contract", and are so obsessed with that one type of agreement you have in mind that you're may have totally missed that the word contract correctly applies to many more things.

(Note: Neither I, nor KungPaoChic have suggested that a Model Release should contain more than the release, such as being bastardized into a "Shoot Contract" or a hybrid document, JUST that a Model Release is and should be a contract, because the purpose of a Model Release is for it to be a written, legally binding agreement, aka, a contract.   

I'm not sure why you find that so difficult to understand.)

In other words, you keep using that word, but I don't think it means what you think it means.

Gee, what would I do without you. I've never heard of that Webster book before.
http://www.youtube.com/watch?v=NJUvdOC1kz0

I'd ask you the same question, that has gone unanswered. Have you ever sat down across a desk from an atty. who specializes in IP/Copyright law, and paid said atty. for his/her services?

Btw, this is a yes or no question. No condensed versions of War & Peace are necessary.

Cherrystone wrote:

Gee, what would I do without you. I've never heard of that Webster book before.
http://www.youtube.com/watch?v=NJUvdOC1kz0

I'd ask you the same question, that has gone unanswered. Have you ever sat down across a desk from an atty. who specializes in IP/Copyright law, and paid said atty. for his/her services?

Btw, this is a yes or no question. No condensed versions of War & Peace are necessary.

I am pretty sure that any stock agency has not only sat down with an IP / copyright attorney and made sure that all of their i's are dotted and their t's are crossed.

Maybe your release works the best for your purpose but in the case of stock that I was paid to shoot for a media company I don't own the rights to any of the images anyways beyond portfolio use.

As noted agency work is different and the agency is directly involved with the paperwork.

I don't usually get releases signed for editorials -- occasionally with minors if I book them outside of their agency.

MM is a whole different ball of wax.

Jay  Edwards wrote:
I always had my releases signed at the end of shoots along with payment.

Prior to shooting, the model would sign a checklist covering shoot content.

No misunderstandings allowed.   

Extra paperwork but it sounds a very good way to do things.

GPS Studio Services wrote:

I understand your point, but I am not sure that I can agree with that statement.   The purpose of a model release is to grant permission to use the model's likeness, typically for commercial purposes.  In some situations you may be wanting to overcome the right to privacy.  In others your goal may be false light.  The release can either take the form of "consent."  In that case it will be a form that explicitly gives permission. It can also be a waiver of the right to sue.  Put another way, the model promises not to sue you for using her likeness.

As for what it covers though, that is very much grey.  There is nothing, for example, that prevents the model from signing a release years after an image was taken.  You can obtain consent at any time.   Likewise, most releases are written so broadly that it is never clear exactly what is covered.   It is really a coin toss, in some situations, as to how a judge will rule.
...

Yes, there can be issues surrounding exactly what is being released.

I agree that there are practical benefits to having the release specify when the likeness was captured (i.e. the date the the photos were taken).    I prefer to avoid ambiguity in a legal documents.

However, I still believe that exactly what is being released is not a simple issue.

Consider a situation where a photographer gets a "full commercial release" from a model.  A few weeks after the images were taken, an artist uses photoshop to draw over the photograph producing a "comic book" like drawing of the model.  If the model is still recognizable, one probably needs a release to use the likeness for advertising purposes. 

If the model release only covers images created on a particular day, then would these drawings be covered?


Although it is rare for an artist to change a photo to the extreme that it looks like a drawing, it is not uncommon for the model's likeness to be subjected to substantial editing.  (hair color, skin tone, leg length, waist/bust size, etc.).   These edits are rarely done the same day as the shoot.  Do these constitute new images?


What if the client want's an artist to recreated one of the photographs as an oil painting?  An artist uses the released photograph as inspiration, and creates a copy of it as an oil painting.   Would the oil painting need a new release?

What if the painter used the original images as only general inspiration, and created a new image of the model based, on the photographs?  Would this need a new release?

Let's circle back.  What if someone uses photoshop to mix and match pieces of multiple released photos to make a new image?  Is a release needed here, or would this just be normal editing?  What if the created image had a pose, prop, or background that did not exist in the original photographs?

Obviously, the answers depend on the exact wording of the release.  My point is that this is not a straightforward issue.  The release probably does not simply cover the individual photos.  As you point out, the release probably does not allow unrestricted use of any images every taken (in the past of future) of the model.

Cherrystone wrote:
I'd ask you the same question, that has gone unanswered. Have you ever sat down across a desk from an atty. who specializes in IP/Copyright law, and paid said atty. for his/her services?

Btw, this is a yes or no question. No condensed versions of War & Peace are necessary.

No, I've only discussed it with them over beer and pizza (an IP/copyright attorney who has represented a few friends and won in federal court, awarded damages when their works have been infringed upon.)

However, we are talking model releases, which are the model granting the right to use their likeness, I'm not sure why you keep bringing up IP or Copyright, which are separate issues, and I've always been told to keep other matters totally separate documents from model releases.

You can keep bragging about how much you've paid all you want, but if your model release isn't a legally binding agreement (aka, contract) then why have a model release?

KungPaoChic wrote:

I am pretty sure that any stock agency has not only sat down with an IP / copyright attorney and made sure that all of their i's are dotted and their t's are crossed.

Maybe your release works the best for your purpose but in the case of stock that I was paid to shoot for a media company I don't own the rights to any of the images anyways beyond portfolio use.

As noted agency work is different and the agency is directly involved with the paperwork.

I don't usually get releases signed for editorials -- occasionally with minors if I book them outside of their agency.

MM is a whole different ball of wax.

You never did answer two questions, and also are missing the salient point.

Releases can be a contract.
Releases can be not a contract.
Period.

Both sides are supported in the legal community. To say one is utterly wrong and can easily be negated in court.....is still BS. To those attorneys on the side of no contract releases, they can & do argue persuasively that a contract could be picked apart easier in court.

So by the later notion, should I say a contract release can be easily voided in court?

Of course not, and you shouldn't either.

Cherrystone wrote:
You never did answer two questions, and also are missing the salient point.

Releases can be a contract.
Releases can be not a contract.
Period.

Both sides are supported in the legal community. To say one is utterly wrong and can easily be negated in court.....is still BS. To those attorneys on the side of no contract releases, they can & do argue persuasively that a contract could be picked apart easier in court.

So by the later notion, should I say a contract release can be easily voided in court?

Of course not, and you shouldn't either.

You keep using that word, but I don't think it means what you think it means!!

Another Italian Guy wrote:
The most likely reason is that it's very easy to forget to do it at the end of the shoot.

Also, many photographers like to check ID, take a photo of the model holding her ID and/or signing the model release and 2257 forms (if applicable) as well. Those things definitely need to be done before the shoot starts so it makes sense to sign the model release then too.





Just my $0.02 etc. etc.

EXACTLY!!! This is how I do it....

Michael Fryd wrote:

In the real world agency models sign paperwork at the end of the shoot and the client signs the voucher.

Things generally work differently here on MM as there is no agency guaranteeing a release will be signed.

You are correct in that it is rude to spring paperwork on a model at the time of the shoot.  There should be communication prior to the shoot such that everyone knows what to expect.  The model should be provided with an advance copy of any paperwork they are expected to sign.  Everyone should go into the shoot knowing when and what will be signed, what each party is expected to provide, who will be paid (and how much), where/how the images may be used, and what sorts of images will be taken.

I am not an attorney, but to my knowledge, there is no legal issue with signing a traditional release prior to the shoot.   Technically, the model release does not apply to the images (which don't exist prior to the shoot), the model release is permission to use the model's likeness.  As the model exists prior to the shoot, it makes sense to give said permission, even though no images have been taken.


In the MM world, the timing of the signing is generally based on the experiences of the parties involved.  Experienced photographers who have been burned by models refusing to sign a release, tend to insist on the release being signed prior to the shoot.

Newbie models who think they can exercise complete control over photos tend to insist on signing the release at the end.  They are also under the impression that they can release certain photos.   

Care should be taken when attempting to limit which photos by way of a release.  As the release is about the model's likeness, and not particular photos, it is hard to do this in a release.  In the real world, restrictions on what sorts of photos can be used, would be in a contract.   If you do insist on putting these restrictions into a release, please have the document crafted by an attorney, not a photographer.


As to understanding the legal jargon in a release, this should be easy, unless someone has tried to "improve" the release by grafting on contract terms and/or a usage license.  Generally a release is permission to use the model's likeness for certain purposes for a certain period of time.  Many releases are "full unrestricted" release, which allow use of the image for any purpose for all time.

Most releases allow the photographer to edit/distort the image.  Generally, this means they can smooth skin, remove a mole, or make the model fatter/thinner.  Some releases also allow the image to be used in a way that gives a false impression of the model.  Perhaps the image will be used in a context that implies the model has an STD?


New models tend to be nervous.  I once agreed to shoot a new model TFP in exchange for a full commercial release.  As usual, I send the model the release ahead of time.  She got back to me with the concern that the release allowed me to do whatever I wanted with the images.  I could even "photoshop her head onto someone else's naked body."  I told her she was correct, that the release would allow me to do that, but why on earth would I want to?  The only time I am aware of people doing this is when the head belongs to a celebrity, and generally no one gets a release.   She thought about it a minute, and signed the release.

My advice to models is that if there are certain types of images they don't want out in the world, then don't allow those images to be taken.

I COMPLETELY Agree with this Last Sentence.....