Thursday, April 12, 2007

Get model releases

Each PJ should carry a few emergency model releases in the camera bag. At the very least, there should be one in the car. Consider it insurance.

The PJ world has changed faster than anyone could expect. Most changes were determined by "market conditions" and technology. These same market conditions and technologies may motivate people to do dumb things at just the wrong moment - without a PJ's knowledge - and may get an innocent PJ into trouble.

At these times, releases are an emergency parachute. When a PJ is racing toward the concrete, it's best to have a back-up plan.

Can I sue a photographer who doesn't have a model release?
The short answer is probably not. If the image is used in an editorial context and no laws were broken while acquiring or publishing the image, it's protected speech. A law must be broken.

If an image of an easily identifiable person is used commercially - particularly when used for an objectionable product that could hold the subject up for public ridicule - the subject could press a case. Check with a lawyer.

Main purpose of a model release
Although the main purpose of a model release is to protect the PJ and any later-designated publishers, it's mostly a file drawer item.

The only time the release becomes necessary is when the subject is upset. Most photo subjects never get upset (actually, most are happy to be in magazines or ads) and the contract never sees another day of sunlight.

Ethical PJs and ethical clients are the surest way to keep from needing to present a model release. However, our clients like to be protected too and may demand to see the signed release before paying an invoice.

The biggest benefit of a signed model release is the subjects' knowledge they signed a release. In other words, once the subject signs the release, they're aware it exists and aren't going to try to sue because they know they signed it.

What's a model release?
A model release is a signed contract to allow a photographer (or other entity) to use person's likeness without additional considerations from or for the subject of a photograph or recording (video or audio).

This release has no use other than proof of intention in a courtroom or as drawer filler in an office. They're semi-required for commercial photographers, suggested for editorial freelancers and rarely-used by staff PJs.

However, all three shooters need to have one available at all times.

PJs can pay large sums of cash to an attorney for a custom release and take the tax write-off. Or, they can use the sample model release posted on the PJ Glossary blog. The sample posted is simple, yet effective. There are more complex versions available elsewhere on the Web.

PJs are welcome to change the contact information on the sample to their needs and carry a copy (or 10) at all times. If nothing else, they make good emergency notepads for cutline information. :-)

Types of releases
There are various types of releases used in this biz. The one provided is commonly called a "pocket release." It's a single-page release. It's most often used for editorial assignments, but works fine for commercial gigs as well.

When working with stock companies and some wire services, the term "absolute release" may be used. This means the PJ acquired both model releases as well as property releases. It DOESN'T mean the PJ releases copyright to another party. That's called a "work-for-hire" contract (NEVER sign a work-for-hire contract unless it pays for the private jet you want).

I'll discuss property releases another day.

When to get a release
Before an assignment
In almost all circumstances requiring or desiring a release, get it before a single frame is shot. PJs can't waste time by working uncooperative subjects. Identify those who want to help, get the release and get to work.

Most editorial shoots are pre-arranged for a specific time. If a release is needed, call ahead and explain the shoot requires releases. Then, they aren't shocked when the PJ arrives with papers. If they don't want to play, it's better to know a few days or hours before the shoot than at the shoot on a tight deadline.

After an assignment
In an extremely rare instance, a company may want to purchase commercial reproduction rights to an editorial image. This situation requires an entire post, but the short answer is:
A) be certain the client understands the costs and will pay.
B) locate the subject.
C) offer a reasonable payment or print product(s) for releases.
D) NEVER transfer the image before the release is signed.
E) if the subject doesn't agree, the deal dies.
F) charge the commercial client for everything.

Open ended releases
In situations where a PJ is working a subject over a long period of time, it's possible to get releases anytime during the project. An open-ended release may be signed for an upcoming project, at the end of the project or at any point in between.

It's important to notate an open-ended status on the "description" line. Once the project is complete, notate the date range on the contract and have the subject initial the date range.

Parts of a model release
The model release provided is very simple. So this seems redundant to me, but let's break it down into understandable parts:

The most important part is the contract header. It clearly states the paper is a "Model Release." This means any subject is a "model," whether paid or not, and they're "releasing" any claim of ownership to the images. Don't try to be cute or use a thesaurus on the header. This is the part the court wants to see.

Next is the date. It's required on all legal forms.

The photographer identifies her/him-self as a photographer and lists enough contact information to distinguish this photographer from all others. Since the subject gets a copy, they can also use this information to order reprints. ;-}

The next block describes the photographs. Typically, most PJs keep this as generic as possible to maximize an image's usefulness (intended or otherwise). However, if the images are specifically for commercial applications, say so. Editorial uses are a freebie, commercial uses aren't.

Furthermore, if it's for something that could lead to embarrassment of the subject it MUST be spelled out.

For example, if a person agreed to model in a commercial advertisement for a hemorrhoid of other disease treatment, GET IT IN WRITING. These situations are the most likely to show up in court. Likewise, these images require additional payment or other considerations.

In short, make it absolutely clear what the model is doing and where it's going if it's something other than a "happy person image" on a beach.

The legal speak on most contracts is confusing. This is deliberate. Some PJs prefer this approach. I prefer the bullet-proof approach. No jury can decide a subject didn't understand the sample model release. Here's the blow-by-blow:

"For consideration received," is the most vague statement on the contract. This can mean anything from payment received on a commercial shoot to the option to refuse on an editorial shoot. Either way, it means the subject had the option to back out - and didn't.

For commercial shoots, it's wise to offer a minimum payment of a dollar, an "in-kind" print exchange or a combination of both. Then, the PJ is completely covered if something goes wrong.

"I give (PJ's name) permission to reproduce the photograph(s), audio and/or video recording(s) described," acknowledges a named PJ acquired permission to reproduce with the subject's full knowledge. This version is all-inclusive for multi-media shooters.

Some PJs prefer to have the subject's name after the word "I" and may add heirs, consorts, small marsupials with large glistening eyes, etc. for extra protection, but it's somewhat redundant. The release is the entire contract.

"and I agree that (PJ's name), and all licensees and assignees," designates all possible secondary outlets. The most important part of this line is the PJ's name.

Often, companies want PJs to use their specific release. If a company demands their release, don't accept the gig - especially with stock agencies. Their release only gives THEM the right to reproduce the image. By using their release, it's a back-door exclusionary contract for the company because it's useless to anyone other than this company - including the PJ.

By primarily releasing the PJ, all other entities are covered. This is the only bulletproof release.

Some PJs add extra lines to include all the PJ's heirs, hairs and hares as well, but it's unnecessary considering anyone can be designated as a licensee or assignee.

"are entitled to use the photograph(s), audio and/or video recording(s) described above in any manner or form whatsoever," this is the "catch-all" phrase to save our rumps. Most editorial publications have a wall between editorial and advertising, but some less-educated personnel at an upstart e-zine might decide to do something stupid publicly with an image they "found" in the system.

As much as PJs would like a subject to slap down an idiot that misuses our images, we must protect ourselves first. This line is our last line of protection. Our first defensive line is to only work with reputable clients (the only way for me).

"either wholly or in part," this means the image(s) can be cropped or (hopefully not) used as part of a digitally mutilated manipulated image. Since we don't know what's actually going to happen to an image once it leaves our hands, this line is also critical.

"in any medium," allows all uses in print, on the Web, with plasma beams transmitted to neural microchips.

"and in conjunction with any wording or other photographs or drawings," this helps protects PJs from libel or defamation suits based on the accompanying text and/or other images or ads on the page. If the libel was the PJ's fault, it still doesn't help.

Some editorial subjects have decided to sue in the past because they didn't like an advertisement appearing on the same page as their portrait. Keep this line to protect against these situations.

"worldwide." allows both domestic and foreign markets as well as Internet uses (because we don't know in which country it's eventually viewed).

"I understand that I do not own the copyright of the photograph(s), audio and/or video recording(s)." this establishes the PJ's (soft) copyright ownership without a conflicting claim. A subject never owns the copyright unless there's a really strange secondary contract. This line points out the obvious.

"I understand that all negatives, positives and digital images together with the prints and/or recordings shall constitute your property, solely and completely." this is the absolute ownership statement. It removes the "for hire" argument. The release is in the PJ's name and doesn't belong to anyone other than the PJ, who can solely determine and designate assignees.

"I am over the age of majority. _____ (initial)" this notates legal status of a person 18 years or older. For minors (those under 18 years), their parent or guardian must sign the contract on their behalf. When this happens, have them write the minor's name and age to the side of their own printed name.

"SIGNER'S NAME (printed):" this is the legible printed name of the person who is signed the contract.

"SIGNATURE:" this is where the signer makes their legal mark.

"ADDRESS:" this identifies the person by an additional fact to distinguish one "Bob Jones" from others. It can be a business address as long as it's noted as such. Even if the person moves, the address is still part of the person's history. The attorney would ask, "did you ever live/work at..." and the gavel goes down. Dismissed.

"PHONE:" again, this is an identifier. It's also a back-up if additional cutline information is needed or additional rights need to be obtained such as this model has "the look" for a med company's hemorrhoid product.

"WITNESS:" find someone (anyone) to sign here in the sight of the model. The PJ can sign, but it could negate the contract for some judges or juries.

"Thank you for your cooperation!" this is a worthwhile courtesy.

Why do we need a model release?
The easiest answer is for commercial uses. Any commercial image (ad) needs to have a model release. End of story. We DON'T know how and have NO control over the words and images associated with the image(s) we make for an ad. Furthermore, we don't know how the image could be used.

PJs never want to be associated with a commercial image without a release. It could turn out to be a career ender and the conclusion to one's home ownership.

For pure editorial use, no model release is needed. Unfortunately, there are fewer "pure" editorial publications. Most daily, metro newspapers are considered "pure editorial." However, everything else becomes a little fuzzy - particularly online.

An editorial image can be used to advertise the publication without a problem. It can also be used to promote a story within a publication (referring image). However, the words associated with a publication ad or referral are completely out of a PJ's hands.

Again, this isn't a big deal with most major broadsheet newspapers, but it can become the pivotal factor with a magazine, a tabloid-format weekly newspaper or a Web site.

When do we use a model release?
The rule of thumb is, "When in doubt, whip it out."

It's never wrong to have signed model releases. It's always safe to have signed model releases. Having said this, there are wrong times for newspaper PJs to ask for them.

Again, a major metro daily newspaper is safe without releases. Yes, there's the online factor. However, most papers also separate online content by editorial and advertising. If they don't, be concerned.

Magazines and online-only publications are trickier. Unless a PJ is working for a "news magazine," it's best to have the releases for any recognizable people and/or domestic animals (a property release is appropriate for animals, but a model release works).

Again, this goes back to the PJ not knowing exactly how the image is used or what ads appear on a page. Magazines have a much looser editorial standard than newspapers. For instance, they regularly "flop" (invert from left to right) images. This might not seem like a big deal to casual readers, but this makes a man's jacket into a "ladies' cut" and there's been a successful lawsuit won over this issue.

If it's for a magazine or online-only publication, get a release. Or, find another subject.

Commercial uses
Consider releases mandatory for commercial images. They're still only insurance and often there's no fallout if a shooter forgets, but it isn't worth taking a chance.

Most of the time, commercial models are paid. They know the release is part of the deal. No release equals no payment for the model.

Some newspapers have PJs shoot occasional ads. Often these are simple portraits of a business owner in their shop with their products. Even under these circumstances, the PJ should get a release. There simply is no knowing what will happen in the future.

For instance, General Beelzebub Q.T. Jones poses for a hometown news ad at his lizard-on-a-stick BBQ stand (this should eliminate any similarities to anyone). A PJ makes the image, but doesn't get a release. The good general is happy and continues using the same shot for many years.

Some years later, a mega-corp buys the franchise rights for the company. A year later, he decides he doesn't like what the mega-corp did to his fine franchise. Consequently, he demands they stop using his likeness.

Well, they don't bother to tell the ad reps about his demand and suddenly a retired PJ is getting a summons and/or subpoena. Not fun - especially since the PJ now lives on a fixed income on a Pacific Island.

OK, I know what the PJ would actually do in this situation, but s/he might have great grandchildren in the original hometown and would want to visit occasionally. The point is a model release is important - even if the subject is the person who's buying the ad.

Enough for now,


Don said...

Man it is damn difficult to find the answer to a simple question: Does one have the right to show an image in their portfolio. Period.

Every google response has to deal with commercial use, where it is indeed mandatory.

I am trying to find the high court ruling on the artists ability to show work in a portfolio as examples of work product (a win for the photographer) and beilive it was in Florida... but page after page of "commercial use".

Very frustrating so I posted this comment to a 3 year old blog to vent... no personal animosity to the author.

Mark M. Hancock said...

If you fully own the copyright and did not sign any contract that says otherwise, the short answer is yes.
If you were a staffer without a contractual rider, you'll need to check with someone at the company - normally a supervisor.
If you did sign a work-for-hire or "access only" contract, you'll need to hire a lawyer.
Otherwise, anything shot by a PJ becomes the PJ's property.
Yes, there are several court cases that support PJs' and publications' "right to promote themselves" through portfolios and other reasonable advertising.