|
Forums >
General Industry >
Model didn't sign release.
Realizing that any anwswer I get here are simply opinions, I'm simply looking for a consensus. A Model, with whom I work frequently, went to Atlanta a couple of months back and did a shoot with a number of other models. The purpose of the shoot was to get photos for a 2013 Calendar that was to be printed. Now, my question. According to the Model, she did not sign any release with the people who did the shoot authorizing them to use her images in the Calendar and to sell/profit from the Calendar. Can they sell the Calendars without her release? Does she have any recourse to collect from the sales? According to the Model, she is only to be paid from the sales of Calendars that she is, herself, responsible for. So far, she's received nothing from them for the few Calendars that she has sold. Yes, she's young, naive and surely doesn't know the ins and outs of this business. Your opinions. And I do realize that there are no lawyers her, so I'll treat your opinions as just that. TIA Ed Jan 04 13 10:22 am Link You're screwed dude!! At least for commercial uses. Jan 04 13 10:30 am Link George Ruge wrote: I'm not.... But, they may be. Jan 04 13 10:34 am Link The photographers should not be selling any of the photos without a signed release. She does have recourse, but that would involve an attorney. She should call the people that are involved and maybe threaten them with a lawsuit if she doesnt get paid and see what happens with that avenue. Or order more calendars to sell and then don't send them the money after she sells them. Of course all of this is just my 2 cents worth. As a photographer myself I would never not share in the profits with one of my models, either paying them for the shoot or giving them a percentage of the profits from the sales of the calendars. Jan 04 13 10:34 am Link Ed Woodson Photography wrote: When she sells one, does she keep a percentage? Jan 04 13 10:36 am Link consult an attorney familiar with the laws in Georgia? i think the right to publicity thing varies somewhat by state. the way i understand it, being the copyright holder doesn't necessarily imply that you can just do anything you want with the images. of course sometimes people decide it's easier to seek forgiveness than permission. so the main issue here is that she feels like she's not getting the royalties she was promised? Jan 04 13 10:37 am Link Toto Photo wrote: She was told by the Photographers..... Jan 04 13 10:38 am Link Ed Woodson Photography wrote: Oops!! Yep!! They're screwed!!:-)))) Jan 04 13 10:42 am Link Not that it could stand in a court, but if she has ANY written information regarding their agreement/terms...with out without a release she could get compensation. Especially, if she DIDN'T sign a release, she could possibly state that these folks are using her person/her image for profit...without agreement.... But of course thats iffy, only because she did in fact agree to particular terms.  It was a mistake on her part that she did not sign anything, any agreement, any term notes... But as you said, shes young and this was a learning experience for sure! I, myself have done it before. It takes a few stumbles to get it right for sure.  Jan 04 13 10:44 am Link Ed Woodson Photography wrote: I was going to say... stupid model! Jan 04 13 10:49 am Link She could file suit against the photographer or producer of the calendar for using her likeness without permission. Or she could file suit for breach of contract for not getting paid for the calendars she sold. Or both. That would require hiring a lawyer who would charge her far more than she could ever recover. Or she could try to handle the case herself in small claims court. She would almost certainly have to file the suit in Fulton County where the defendant resides and appear there for proceedings. That's about 250 miles from Savannah. Even if she were to find a lawyer to take the case in some way that was affordable, she would very likely lose on the improper use of likeness claim because, even without the release, a judge or jury would find implied consent. If she won on the breach of contract claim, that would knock out the improper use of likeness claim, because she would have had to prove there was an agreement to use her likeness in the calendar in the first place. The long and the short of it is, she's out of luck. It's what lawyers sometimes refer to as a wrong without a remedy. Jan 04 13 10:49 am Link Without a signed release or contract, it's a he said / she said type of situation. They own the copyright to the images and of course, they can do whatever they want with them including print the calendar. Since she is not a celebrity, any sort of "right of publicity" stuff would not hold up either. Let's hope they sell a few calendars and she gets paid something. But this is a case where they both should have signed a contract instead of a release (the contract goes both ways while the release only goes one way). All this "consult with a lawyer" or "take them to court" stuff is silly, I doubt the calendar sales would even bring her $500, which is what you'd pay a lawyer just for a retainer. Jan 04 13 10:55 am Link The most important question: 1) What where the exact terms of her compensation? She should know how much she was to receive per calendar she helped sell and when her check was to be sent. 2) Did she sign any other contract/agreement that might have had a model release clause in it? 3) Are there any other written statements about the project and compensation in email. etc.? Actually suing for breech of privacy based on no model release will probably far exceed the model's potential income from this project. Her best course of action after consulting a real attorney may be to draft a letter demanding payment or threatening to get a cease and desist order to stop selling the calendar. -Scott Jan 04 13 11:01 am Link Ed Woodson Photography wrote: This is obviously a terrible system for the model to get a commission from since it depends on the optional action of a buyer. Why would anybody agree to this? Jan 04 13 11:05 am Link ms-photo wrote: if this is the position you take on this then you really shouldn't be commenting on this subject matter. Jan 04 13 11:12 am Link Ed Woodson Photography wrote: I can't begin to count how many models I've known who have gotten screwed, because somebody had this great idea to do a calendar. Jan 04 13 11:13 am Link I'm surprised there was even a calendar made... are you sure the ones she's sold got delivered? I mean every hack in my area says they are "making a Calendar" to get pretty girls to show up. I figure if they only send out the calendars that Your model sold, well then for those specific clients she's given permission to because she was teh broker, but if she sees or can prove someone bought a calendar with her image, and she wasn't compensated, then sounds liek she has a civil suit.. Tell her to get a lawyer. Not to be mean, but there's absolutely nothing you or any photographer can do for her, so don't spend too much time fretting. It's not as bad as many other stories that could have happened.. Jan 04 13 11:16 am Link OK, thanks all for your comments. I think, at this point, I'm simply going to tell her that she's SOL. I agree that hiring an attorney will likely cost her more than she can ever expect to recover. Yes, she is a young, and naive, model with a lot to learn. doubt that she'll make this mistake again. What brought this entire issue up is that the group of Photographers has asked her, once again, to participate in something from which they will profit. to which she said, "I'm tired of going up to Atlanta and doing shoots when they don't even cover my travel expenses." I began to ask her questions about the previous shoot. There were about 30 models involved in this shoot. I've told her she needs to contact some of the others and find out what they were promised/told/signed. Thanks again guys. Ed Jan 04 13 11:21 am Link Joe WoW Photos wrote: They actually did produce a Calendar. I, to help her out, bought one and received it. Jan 04 13 11:22 am Link Loki Studio wrote: And a ridiculous way to run a business. Do they expect the only people ordering the calendar will know the models and/or be their friends? It would appear so. Jan 04 13 11:35 am Link Ed Woodson Photography wrote: Yes, but did you specifically state she was your salesperson? lol Jan 04 13 11:36 am Link How many calendars did your friend sell and what was she to receive per calendar? If, by her account she is due a total of $9 for what she agreed to, what would she sue about other than the $9? Jan 04 13 11:37 am Link Michael Pandolfo wrote: Of course I did. Fortunately, it is indicated on my PayPal receipt. Jan 04 13 11:42 am Link Fleming Design wrote: Where did you come up with $9? I don't recall posting any specific figures. Jan 04 13 11:43 am Link Ed Woodson Photography wrote: I just made it up. You said she only sold a few. And if only 3 people mentioned her name and she was to get $3 per she is owed $9. How much is she owed? That is really what this is about. Jan 04 13 11:46 am Link Fleming Design wrote: No, that's not actually what this is about. What it's about is someone taking advantage of a young, eager Model and if she can do anything about it. Jan 04 13 11:51 am Link Fleming Design wrote: I don't know how much the calendar costs but I can confidently say the talent is not getting $3 per calendar sold unless each calendar is $60+. Any commission rates I've known have been more in the 3-5% range of the gross sale (and maybe up to 10% on add-ons). Jan 04 13 11:55 am Link Larry Quick wrote: She could try, but she was obviously aware of the shoot and its nature as a Calendar shoot for sale. Could she convince someone that she did not know this or consent to it? A don't think a jury or judge would buy it and she would most likely loose the case. Jan 04 13 11:57 am Link Ed Woodson Photography wrote: No, she's screwed, IMHO Jan 04 13 11:58 am Link Ed Woodson Photography wrote: I would consider this though...taking advantage of a model doesn't make the practice not legal. Naivete isn't a defense in any Court I know. Jan 04 13 12:00 pm Link Ed Woodson Photography wrote: Is the model an adult? "According to the Model, she is only to be paid from the sales of Calendars that she is, herself, responsible for." Now I don't like con jobs either, but what do you think this adult is entitled to other than to be paid from the sales of Calendars that she is, herself, responsible for if that was her agreement? Maybe they are waiting for her cut to hit $10 before they send a check. Jan 04 13 12:04 pm Link I'm feeling curmedgeonly today. Apologies in advance. I say that by ignoring the release at the time of the shoot, both sides are getting what they deserve. Beyond that, there are too many details that may impact any legal decision. A real lawyer would know better; I'm not sure what questions to ask. Jan 04 13 12:04 pm Link Ed Woodson Photography wrote: This reminds me of the beauty contests where the model has to get sponsors to pay her way. Jan 04 13 12:09 pm Link Michael Pandolfo wrote: I haven't seen the correspondence that she had with the group. I think that there's a pretty good chance that it contains verbage that would imply her agreement. I don't know. Jan 04 13 12:11 pm Link Most important is what is the right to privacy/right to publicity law in Georgia. Without knowing that, this whole thread is pointless. They may (or may not) need a release to sell a calendar. Then, can she do anything about it? Jan 04 13 12:23 pm Link Ed she could do small claims court since this is civil matter with what I can only imagine is very little money. Win or lose, at a minimum she could really make those guys squirm. It's sad that ass-bags like this ruin things for legit professionals. Hopefully she gets the word out about these types of shoots and others can avoid them. Jan 04 13 01:12 pm Link I'd be willing to bet that the calendar photographer in question is a member of MM. Jan 04 13 01:37 pm Link Michael Pandolfo wrote: +100 Jan 04 13 01:43 pm Link Fleming Design wrote: They, indeed, are MM members. Jan 04 13 01:58 pm Link Very familiar with these guys. Sadly; not only do they continue to keep this up, but for some reason, models just keep streaming and streaming into the studio where they shoot. Georgia DOES have extremely liberal laws regarding Model Releases for personal portfolio use (online and print); however, commercial usage of the same images is a little more murky. It will most likely be pretty cost prohibitive to have her actually retain an attorney and seek any type of relief. Maybe she's lucky and has a decent job and/or family with deeper pockets and she can afford one. There are a number of us that would like to see these guys actually be held responsible. Jan 04 13 04:06 pm Link |
